BEACH & WATSON - [2017] FamCA 151

FAMILY COURT OF AUSTRALIA

BEACH & WATSON

[2017] FamCA 151

FAMILY LAW – PARENTING – Application by the father to spend unsupervised and overnight time with the child – Where the father seeks equal shared parental responsibility – Where the mother opposes the father’s application and seeks that he spend only supervised time with the child and seeks sole parental responsibility – Where there are previous unsubstantiated allegations of sexual abuse by the father against his children from a previous relationship – Where orders are made for the child to spend time with the father in a gradually increasing arrangement to conclude in unsupervised time – Where no orders were made for the child to spend overnight time with the father – Where orders are made for the mother to have sole parental responsibility.

Family Law Act 1975 (Cth), s 60CC, 61DA, 60CC(3)(l), 60I

APPLICANT:

Mr Beach

RESPONDENT:

Ms Watson

FILE NUMBER:

SYC

580

2014

DATE DELIVERED:

15 March 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

27 and 28 February, 1 and 2 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Druitt

SOLICITOR FOR THE APPLICANT:

Marsdens Law Group

COUNSEL FOR THE RESPONDENT:

Ms Snellling

SOLICITOR FOR THE RESPONDENT:	Lewarne & Goldsmith
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Ladopoulos
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Aid Nsw Bankstown Family Law

Orders

IT IS ORDERED

That the child known as B born .. 2013 (“the child” or “B”) live with the mother.
That the mother have sole parental responsibility for the child.
That the mother shall:
(a)notify the father of any proposed decision relating to the child’s long term care and welfare, including but not limited to:
(i)proposed decisions about which school the child shall attend; and
(ii)proposed decisions about specialist medical treatment, elective surgery, treatment of chronic conditions, or other long term medical issues affecting the child,
such notification to be given in writing at least six weeks prior to a final decision being made, except in the case of an emergency; and
(b)take into consideration any views expressed by the father in respect of such proposed decisions.
That the child’s name be registered as B Watson-Beach and the parties are within fourteen (14) days of the date of these Orders to sign all such documents and do all such things as are necessary to allow for the NSW Registry of Births, Deaths and Marriages to issue a birth certificate for the child in this name.
That the child’s surname not be changed without the consent of both parents or by order of the Court.
That, unless the mother and the father otherwise agree in writing (including by email or text message), the child will spend time with the father as follows:
(a)from the date of these Orders and until her 4^th birthday on … 2017, each Thursday from 9:30 am until 12:30 pm, such time to be in the presence of the paternal grandmother;
(b)commencing 27 July 2017 and until 27 September 2017, each Thursday from 9:30 am until 1:30 pm, with a minimum of two hours of such time to be in the presence of the paternal grandmother;
(c)commencing 1 October 2017 and until 4 February 2018, each Sunday from 9:30 am until 1:30 pm;
(d)commencing 11 February 2018 and until 29 April 2018, each Sunday from 9:30 am until 3:30 pm;
(e) commencing 6 May 2018, each Sunday from 9:30 am until 5:00 pm; and
(f)at any other time that may be agreed in writing (including by email or text message) between the mother and the father.
That, unless the mother and the father otherwise agree in writing (including by email or text message), the child will spend time with the father on special occasions as follows:
(a)on Fathers’ Day in 2017 from 12:00 pm until 4:00 pm, such time to be in the presence of the paternal grandmother;
(b) on Fathers’ Day from 2018 onwards from 9:30 am until 5:00 pm;
(c)for Christmas 2017 and each alternate year thereafter from 2:00 pm until 7:00 pm on Christmas Day;
(d)for Christmas in 2018 and each alternate year thereafter, from 10:00 am until 7:00 pm on Christmas Day; and
(e)On the child’s birthday from 2018 onwards, from 4:00 pm until 6:00 pm if it falls on a school day and from 12:00 pm until 5:00 pm if it falls on a non‑school day.
That the father’s time with the child is suspended on Mothers’ Day but the child shall spend the time she would, in accordance with these Orders, have spent with the father on Mothers’ Day, on the Saturday immediately before Mothers’ Day.
That, unless the mother and the father otherwise agree in writing (including by email or text message), handovers shall occur at the paternal grandmother’s home for a period of two years from the date of these Orders. Thereafter, handover shall occur at C Town Shopping Centre.
That, unless the mother and the father otherwise agree in writing (including by email or text message), the mother is permitted to suspend the child’s time with the father for a period of up to two weeks up to twice per year for the purpose of going on holiday with the child on the following conditions:
(a)the mother is to give the father at least six (6) weeks’ notice of the planned dates of the holiday; and
(b)once the child has commenced school, holidays are to be taken during school holiday periods.
The mother and the father are each restrained from criticising, complaining about or insulting the other parent or members of that parent’s family in the presence or hearing of the child.
That, unless the mother and the father otherwise agree in writing (including by email or text message), communication between the mother and the father in relation to the care of the child is to occur as follows:
(a)communication is to be by text message or email between the mother and the father except in the case of an emergency; and
(b)all communication is to relate solely to the care of the child and is to be expressed in a courteous, respectful and business-like manner.
That the mother and the father shall keep each other informed at all times of the following:
(a)their current residential address, contact phone number and email address;
(b)the names of other adults living in the home where the child will be living or spending time; and
(c)any significant accident or illness affecting the child while she is in their care, including the name and contact details of any treating health professional.
That the mother shall inform the father of the name of any child care facility, pre-school or school at which the child is enrolled, such information to be given in writing within seven (7) days of enrolment.
That these Orders authorise any child care facility, pre-school or school which the child attends to provide each parent (at his or her request) with copies of all documents relating to the child including copies of all school reports and notices received in relation to functions, parent teacher nights and like activities to which parents are invited as well as any and all information which may be sought from time to time by the mother or the father in relation to the child.
That both parents are entitled to attend any school event involving the child to which parents are invited, including performances, assemblies and parent‑teacher interviews.
That the mother shall inform the father of the details of any regular out‑of‑school activity (such as dancing, sport, music lessons) in which the child is enrolled, such information to be given in writing within seven (7) days of enrolment.
That both the mother and the father are permitted to attend events connected with the child’s out-of-school activities which parents are normally invited to attend.
That the mother shall:
(a)provide the father with and keep him advised of the names and addresses of the child’s treating doctors;
(b)inform the father in writing as soon as practical of any specialist medical appointments including appointments with any dentist, optometrist, psychologist, psychiatrist, counsellor or therapist ("specialist medical consultant") in relation to the child; and
(c)ensure that the father is provided with a copy of any report by any such specialist medical consultant in relation to the child, within 14 days of the mother’s receipt of the report.
That both the mother and father shall be entitled to:
(a)attend any appointments with any specialist medical consultant relating to the child; and
(b) discuss the child’s condition with such specialist medical consultant,
however such attendance(s) shall be at the discretion of the specialist medical consultant.
That within fourteen (14) days of the date of these Orders, the mother and the father are each to contact E Group at Suburb D on … to enrol in the “Keeping Contact” parenting orders program, and are to do all such things as are necessary to participate in that program including attending all appointments as requested by the staff of the program and paying a half share each of the costs of the program.
That within six (6) months of the date of these Orders, the mother and the father each enrol in and complete a “Circle of Security” program run by J Group or similar service, and provide the other parent with evidence of their completion of that course.
That the mother and the father be permitted to provide a copy of the Family Report prepared by Dr G dated 30 September 2016 (“the Family Report”) and a copy of these Orders and the Court’s Reasons for Decision to:
(a)the providers of the Keeping Contact program as referred to in Order 21 above; and
(b)any counsellor, psychologist or psychiatrist who they may consult for the purposes of receiving other counselling as recommended by Dr G in the Family Report.
That, if the mother and the father are unable to reach an agreement about the child spending overnight time with the father after she has reached the age of seven (7) years, they shall do all acts and things necessary to arrange mediation provided by an Accredited Family Dispute Practitioner during Term 3 of the 2020 school year, and both parents shall attend the mediation and make a genuine attempt to reach an agreement about the issue of the child commencing to spend overnight time with the father.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 those particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 580 of 2014

Mr Beach

Applicant

And

Ms Watson

Respondent

REASONS FOR JUDGMENT

Mr Beach (“the father”) and Ms Watson (“the mother”) are the parents of a little girl, B (the child), who was born in 2013 and is now three and a half years old. The child’s surname has not been used here because, sadly, her parents have been unable to agree on what that name should be. That is but one of the issues to be resolved in these proceedings.
The parents’ relationship was brief. They only lived together for about three months and they separated in 2013 before the child was born.
For almost the whole of the child’s short life, there have been difficulties about her parenting arrangements.
In order to understand and appreciate the significance of the events that have transpired between the parents, it is necessary to know something of their respective histories.
The father, who is now 43, was in a relationship with Ms S when he was 19 years old. They had two children, Mr H, now 21 years old and Mr I now 19 years old. The father and Ms S separated when the boys were four years and two years old. The boys lived with their mother.
For about a year the father had regular contact with Mr H and Mr I until allegations were made to the police about inappropriate conduct by the father, with the older child in particular. The father was interviewed. The children were interviewed. The father was charged with a number of criminal offences but the trial did not proceed when Ms S did not appear to give evidence.
The records of those interviews and the file relating to the proceedings were in evidence in these proceedings. Those records were read by the mother and formed part of her concerns about the safety of the child in her father’s care.
The records were also made available to the single expert, Dr G who is a child and family psychiatrist, and the records are summarised in his report, as is his opinion about the significance to be placed on those events.
Before forming a relationship with the mother, the father had a relationship with another woman, to whom I will refer as Ms F.
Other records were produced by the New South Wales Police pursuant to subpoena. Contained within those records is a report of an allegation by a former partner of the father (I presume Ms F), that on 19 February 2012, the father sexually assaulted her at his home. Also, within the records, is a complaint by a neighbour made in 2008 that the father had physically assaulted the neighbours’, then 8 year old, daughter. The record states that the police spoke with the child who did not disclose any incident which might have been indecent, relating to the father. There is also a record in 2007 of a complaint by a neighbour that the father was causing trouble between the neighbour and his wife.
Those records were also read by the mother and added to her concerns.
The mother, who is 33 years old, had a previous relationship with Mr N and they have a child K N (“K”) who is now almost 14 years old. K has always lived with his mother and, for the short time that the parents in these proceedings lived together, K was a member of the household. K sees his own father infrequently by arrangement between them.
The mother has a genetically caused hearing loss. This condition is inherited from her own mother, Ms L Watson, who has been deaf since she was about three years old. The mother’s hearing loss started when she was an adolescent.
The mother has always been in employment. She is fluent in Auslan and speaks clearly and fluently.
After the child was born, the father spent time with her until November 2013, pursuant to arrangements between the mother and the father which became increasingly acrimonious. There were incidents involving the father and the maternal grandmother during the father’s contact with the child. In November 2013 the police were called to McDonald’s family restaurant at C Town after an altercation involving the maternal grandfather. In various communications between the parties between November 2013 and January 2014, the mother told the father that she was no longer prepared to participate in any contact between the father and the child until there was a Court order in place.
The mother continued to make arrangements directly with the paternal grandmother, Ms M Beach, for the child to spend time with the paternal grandparents and the father’s sister. The mother, the paternal grandparents and the father’s sister have maintained cordial relations and the mother has accepted the paternal grandmother as a person who would care for the child. The father, when he found out that his parents were seeing the child, became angry and there was an estrangement between him and his parents.
On 11 April 2014, interim orders were made which provided for the father to spend time with the child each Sunday for two hours at a play centre supervised by the paternal grandmother.
In July 2014, those orders were varied to provide for the child to spend three hours each Sunday with the father at the home of the paternal grandmother.
The orders were varied again and when the matter came to trial, the child was spending time with her father once each fortnight at J Group and once each fortnight at the home of the paternal grandmother.
The service at J Group was available to the parties only until 28 February 2017.
The records kept by J Group of the supervised visits were produced on subpoena. It is an agreed fact that, with one exception to which reference is made later in these reasons, the father’s time with the child at J Group was happy and appropriate. The paternal grandmother also made written reports after the visits she supervised and those reports are of a happy child in a loving environment.

THE PROCEEDINGS

The Court was assisted by a report from Dr G who also gave oral evidence.
An Independent Children’s Lawyer (“ICL”) was appointed for the child.
Whilst the positions of both parents changed after the close of the evidence, the matter proceeded on their respective applications as they stood at the commencement of the trial.
The father sought an order for equal shared parental responsibility. He asked the Court to order that the child’s surname be “Beach-Watson”. He sought unsupervised time with the child, increasing from one day each week, to Sunday and Wednesday of each week, to alternate weekends and every Wednesday and school holiday time when the child is four years old, and lastly extended to alternate weekends commencing on Friday and half of all school holidays after she is five years old.
The mother sought orders whereby the child would have supervised time with the father indefinitely and no overnight time.
At the commencement of submissions, the ICL tendered a Minute of Orders. The ICL proposed that the mother have sole parental responsibility. The ICL proposed a regime of time for the child which provided initially, until the child’s fourth birthday, for the paternal grandmother to be present for four hours; moving then for a further two months, to four hours with two hours unsupervised; for the following four months for four hours without supervision; for the next four months for six hours unsupervised; and finally, when the child is five years old, for a full day (from 9:30 am to 5:00 pm) unsupervised.
After the close of the evidence, both parties changed their positions significantly. The mother conceded that the child’s time with her father would be substantially, as proposed by the ICL. The father abandoned his claim for overnight time with the child until she was seven years old.

THE INTERIM ORDERS

It was necessary to make interim orders to provide for the child’s time with the father to continue between the end of the trial and the delivery of judgment.
The child’s time with her father has been supervised, once each fortnight by J Group for two hours, but that arrangement ended on 28 February 2017. In alternate weeks, the child’s time with her father has been supervised by the paternal grandmother, in whom the mother has confidence, for three hours.
The ICL and the father proposed that the paternal grandmother should supervise the time each week but that the time should be extended to four hours. The mother agreed with the proposed supervision order but wanted the time confined to three hours.
Three hours is the maximum time that the child has spent with her father so far. There is no pressing reason to vary the time in the period between the close of submissions and the determination of the substantive matter.

Accordingly the interim order provided for the child to spend three hours each week with her father and paternal grandmother.

THE ISSUES

As a result of the significant concessions made by each of the parents, at the end of submissions, the issues for determination were:
·    Parental responsibility;
·    The child’s surname;
·    Whether overnight time should commence when the child is seven years old;
·    If there is to be no order for the commencement of overnight contact, whether the parents should be required to engage in mediation about the commencement of overnight contact when the child is seven years old;
·    Whether day only time after the child is four years old should be on Thursday or Sunday;
·    Whether there should be make-up time if the mother takes the child away for a holiday;
·    Costs of the Independent Children's Lawyer.

THE PARENTS’ RESPECTIVE CASES

The father asserted that the mother’s expressed concerns about his behaviour towards her were exaggerated. He denied that her concerns about allegations made in the past relating to sexual abuse of the two boys of his relationship with Ms S, the allegation that he raped Ms F or the allegation in relation to the neighbour’s child, were objectively reasonable. He asserted that he was a caring and loving father and that there was no reason to restrict his time with the child in any way.
The father relied on affidavits by himself, his mother and his eldest son Mr H.
The mother’s primary concern was that the father was demeaning of her, insulting towards her and her parents, threatening towards her and her parents and that he would continue to denigrate her and her parents to the child, causing psychological harm to the child. She asserted that the father was offensive in his behaviour to both her mother and her father and that he behaved inappropriately towards K.
Her secondary concern was that the child might be exposed to physical harm by the father. That concern arose from her becoming aware, from material produced on subpoena, that in 2001 there had been allegations that the father had sexually abused his two sons then aged five and three years. She also became aware that Ms F had alleged to police that the father raped her and she became aware of a complaint by a neighbour that the father had treated a child roughly.
The mother relied on affidavits by herself and her mother.
Although, by agreeing to the introduction of unsupervised contact, the mother implicitly conceded that the father did not pose an unacceptable risk to the child, nevertheless, those concerns featured in the trial.
It is well to bear in mind that lay people, who are unaccustomed to reading police records and child protection files, might not read those documents with the same filters that experienced judges, lawyers and psychiatrists apply, instinctively and as a product of years of experience. The mother could not be expected to understand the significance of the fact that Ms F’s allegation of rape was made only when the police threatened to charge her with breaching an Apprehended Violence Order (“AVO”) against her for the protection of the father, or that she later withdrew the allegation. A lay person might not understand that an AVO for the protection of a child, issued on an interim basis, is not a finding that abuse occurred. The mother could not be expected to read the child protection files, and particularly the interviews with very young children, with those same filters.
Parties to proceedings are entitled to read all of the material produced on subpoena but there is a responsibility on those giving advice to explain that what is read is not always to be taken at face value.
It was with the mother’s allegations about the father’s conduct towards her that the trial was primarily concerned and those allegations and the evidence in relation to that issue needs to be understood in order to place in context the recommendations of Dr G and the mother’s ultimate position that day time only contact is appropriate.

THE MOTHER’S ALLEGATIONS

The mother relied on two primary sources; her affidavit and that of her mother; and a large volume of text messages passing between herself and the father, to establish her assertion that the father was controlling, demeaning of her and her parents (and members of her extended family) and that he was inappropriate in his communication with her.
Both parents placed a volume of text messages into evidence. A large number of them, but not all of them, are extracted in these reasons. When reading the whole of the text correspondence, it is notable that the mother, in the face, at times, of great provocation, was calm and polite in her communication with the father. A feature of the father’s manner of communication was that he would send a very offensive text to the mother and, within hours or the next day, send an innocuous message.
The father, in cross-examination, apologised for any offence his text messages may have caused but it was by no means clear that he understood what was offensive about his communications. As will be seen from the evidence of Dr G, the single expert had formed a similar view of the father’s lack of understanding.
That the mother was deeply offended and hurt is not in dispute. Nor could it be asserted that the father’s messages were, at times, other than offensive and hurtful.
The mother invited the father to be present at an ante-natal ultrasound. He was present, at her invitation, at the child’s birth.
The deterioration of the parent’s relationship can be traced through the text messages, emails and, in one instance, contact centre reports. Not all of the text messages are reproduced here.
On 25 July 2013, when the child was four days old, the mother sent a text message to the father which read:
I had lunch at my nanna house. Been trying to get away but had to feed [B]. Hope to c u on the weekend.
The father responded:
I will say one thing my child is not a toy pet for everyone to hold and pass around so please she is so fragile I won’t have all ur family and friends breathing all over her she is all I have thats my blood
The mother replied:
Hey don’t say stuff like that.. no one is treating her like that.. my family r very happy to meet her. My nanna arranged a lovely lunch & is very respectful of her & they r helping me to care for her. I’d be a mess with out my family so stop acting like they r bad people. We all want the best for her. Please stop with the negative comment about my family.
On 25 July 2013, the father sent a text message to the mother in relation to the child’s name which read, inter alia “… happy with [B] ur thoughts happy”. The mother responded “… I think it’s really nice name.”
On 6 August 2013, the mother sent a text message in relation to the child’s name saying, inter alia, “…I’m filling out centre link forms .. R u Ok with her last name being [Watson-Beach]? I’d like her to have both..” The father responded “No not at all [Beach] only u wont be [Watson] for ever so no”
The mother replied:
[B] can change it later. She can drop the [Watson] of she wants. I could just put [Watson] only but I think having [Watson-Beach] is a good compromise.. don’t u think… It can be changed later… Ur not Gunna marry me so I’m never Gunna be [Beach]????
The father responded “Don’t start me we will fill the forms out on weekend. [Beach] is the last name ok”. The mother replied:
Y is this such a big issue. I’m not starting u. I’m trying to make a compromise. I’m not taking [Beach] away but she can have both. I need to fill out this for centre link so I need to put her last name. I’m not trying to piss u off but I don’t see y she can’t have both?
On 19 August 2013, at 8.15 pm, the father sent a text message to the mother which read, “Hey im ok just got home had a big day. hows everything going hows my little girl”. The following day the father sent a text message to the mother which read, “When I ask how [B] is doing or how she is u need to respond its fucking rude I need to no”. The mother responded that she had been asleep when the text came in. She further texted “When u say stuff like that it’s really rude & I don’t like u talking to me like that. Don’t do it! Everything is fine…”
On 20 August 2013, the mother sent a text to the father which read:
Hi. We r good. [B] has been sleeping heaps today. I’m starting to think she is sick but there is temperature. She might just be tired. How r u?? Have a good day? What u up too..
The father responded:
Hope shes not sick keep her away from fuckers holding and breathing all over her. So cold and windy here all day keep a close eye on [B] please
The mother responded to the effect that she and the child had been in the warm house all day.
On 30 August 2013, when the child was five weeks old, the father sent a text to the mother which read:
Hey how is my girl cant wait to see her if we put [B] on the bottle I could have her over nite and spend weekends with my girl so u can do what u want to do
The mother responded:
Hi. [B] is good. There is more to it than just putting her on the bottle. That’s not what is best for her just yet. I would like to feed for 3 months at least. I’m not ready to leave her overnight. So ur all ready to call it quits & go ur own way r u?
On 19 September 2013, the father sent a text which read:
Hows my [B] girl. can u tell me why if I dont msg u to find out how my daughter is I dont get told its not like u dont have time to msg me this has to change I want to and need to no how she is everyday remember im her dad
The mother responded “Hi. She is good .. had a rough night but all fine today.”
On 20 September 2013, the mother sent a text to the father which read “Just letting u know I’m going to try go see my brother for a few days next week. Going to try leave on Wednesday.” The mother’s brother lives in O Town. The mother told the father that the maternal grandmother would accompany them on the trip. The father responded on 23 September 2013, “Hey give her a kiss from dady. ps ill talk to u tonight about this trip u think ur doing”. The mother texted that she would not be available “tonight”.
Later on 23 September 2013, the father sent a text to the mother which read:
Ok. Hows my [B] girl. Well iv gone over this trip thing u want to do. Well as a responsible father and someone that cares for his child I am saying no because I dont want [B] having to site in the car on a 6 hour trip for one that is not fair on her she has a hard time on small trips. Two I dont want [B] in the car on such a long trying trip with two people that cant hear everything and have to take eyes of the road to have conversation not safe. three taking [B] away for five days is going to upset her and put her put of ruteen …
The mother in cross-examination said that she told the father on more than one occasion that she was going to O Town to see her brother, that her mother was going with her and that they were taking her mother’s car which was reliable and air-conditioned.
The mother and the maternal grandmother drove to O Town.
On 26 September 2013, at 6.29 am, the mother texted the father:
We r in [O Town]. U made me a single mum so mow I have all the responsibility and all the hard work to do on my own. That means I have most of the rights too. [B] travelled really well. We took our time and she was only in the car when asleep. She had plenty of time to play & feed. I understand ur concerns but I had things in place to make sure she was Ok. Save me the lecture. I will discuss things more with u in future but u need to be more supportive and stop putting me & my family down.
On 26 September 2013, after receiving the above message, the father sent a text message to the mother which read: “U deceiving bitch ill call u [Ms S] from now on u are just the same. I think now its time to go do what iv got to do”. That text was followed by a second text which read “Now I understand why [K’s father] moved on u must of fucked with his head too feel sorry for him now I understand his pain”. The next day the father texted the mother “How is my daughter I cant wait to see my little girl”. The mother replied “She has had a great day. Very happy and sleeping lots.” The father responded “Ok I need to no what day ur back and what time”. The mother replied “Monday. I’ll buzz u when I get home.”
The father sent a text to the mother on 27 September 2013, which read:
I need a time so I can sort my self its not hard to work out give me a approximately what time. also u still have this out standing invoice that needs to be paid when is that happening u keep saying ur going to pay this but you havent need to get this paid
I note that there was, at that time, a dispute over whether the mother had paid the full cost of the materials for work that the father had done at her home.
On 30 September 2013, the father texted the mother “Hey hows my [B] girl. Also just to let u no im coming to see my daughter tonite when I finish work about 6 ish so make shore ur home pleaes”.
Shortly thereafter he sent another text which read:
Hey also I would like to start having [B] come stay with me I feel and know it is very important that I get to have time with my daughter and let [B] get closer to me so im asking that we start the bottle and I will have some weekends and a night through the week and get a ruteen so I dont get pushed aside and out of my girls life u will not stop me being a father so u can work with me or there is other ways up to u. Thank u
The child was nine weeks old at this time. In cross-examination, the father asserted that he was merely making proposals for the child to be bottle fed at some time in the future and for weekend overnight time to start at some future time. The mother interpreted the father’s message to be a demand for bottle feeding and overnight time to start immediately. It is difficult to see how any other interpretation could have been made.
On 1 October 2013, the mother messaged the father:
I have never stopped u from seeing [B]. In fact I have done everything I can to try to make it possible for u to see her. Then u just throw it all in my face, u must stop this abusive & threatening behaviour towards me & [K]. I can’t be around u & either can my children unless u can treat us properly. I have told u before I am not putting her on a bottle yet. U can’t control me or tell me what to do. I’m doing what is best for [B] not you.
The father responded:
Using my daughter as bate is so hurtfull I cant understand ur nasty ways all I want is the best for [B] not this is not about u [B] needs her father me and I need her why ur so agensted having the childrens farthers around please let me be the best dad for [B]
The mother replied:
I have never stopped u from seeing her .. I just expect u to treat us properly. Stop the name calling & stop putting us down. If I didn’t want u around u would not be on her birth certificate. Think about it.. all I ask is for u to be the kind & loving guy I feel in love with. U r the one pushing me away, calling me names, I have done nothing to deserve that .. u can see her but I’m not putting her on a bottle and leaving her yet. I have already told u that.
The father replied, “I dont no of any name calling dont no where u get that. I think we need to work more together for [B] and only about [B]”. The mother replied “Look Back through ur messages. Deceiving bitch.. that is abusive & uncalled for. I want I on [B]s life but I’m not going to let u talk to me like that.”
The mother, the child and the maternal grandmother arrived back from O Town on 1 October 2013. The mother deposed that the father entered her parents’ home uninvited and said to her “I have just had a run in with your dad and I can tell you now I am not going to take that shit from a 60 year old man. I’ll sort your dad out later. I won’t let a 60 year old man stand up to me”. That evidence was not challenged and I accept it.
On 15 October 2013, the mother sent a text to the father reporting that the child had been to the clinic and reporting on her progress. The father responded:
U just beat me to message u to see how baby girl is. Well that is so good im so happy she’s doing well growing fast. did u ask if it was a good idea for [B] to have some water in the days now its getting hotter. and should we give her a teething ring to help?
The mother replied “No water just offer her the breastfeeding milk more. Water maybe after 6 months.”
On 18 October 2013, the mother texted the father to say she was at the maternal grandparents’ home. The father responded “So what happens there I was to see [B] tonight so can u bring her to me then I dont want [B] over there to much and I dont want to go there”. The mother replied to the effect that she would drop by “tomorrow” so the father could see the child. She stated “… I thought u would be pleased she is safe from fires. There r fires in [P Town] now.” The father responded:
Ill be up there when I finish work today I cant belive u are using my daughter as bate u need to stop making it so hard for me to have a relationship with my daughter its time u grow up … this is starting to prove to me ur playing games with my life and [B’s] so if ur not going to come to me today I will come there with [Mr Q] he has told me that he will be there for me and [B]
“Mr Q” is a person whom the mother knew was a retired policeman. He was not a friend or acquaintance of the mother. He was not a person on whom the mother could rely to moderate the father’s behaviour.
On 18 October 2013 the mother replied:
I have never used her as bait. I think u like to make up things. Create drama when there doesn’t need to be any. U were stressing over [B] being near the fire so I came here cause I can’t take [K] near you. I’m so tired from being up with [B] last night & checking the fire. Will u be home soon??
The father responded:
Yes on my way home now and ill shower up go pick up [Mr Q] and head up there this way I have a witness ur making it hard for me im over begging to see my daughter and have to work around u and ur family and yes it using [B] as bait iv seen this and been in this before I wont miss out
The mother responded “I’ll be at ur place soon. Only because I need to protect [K] from another outburst from you.” The father’s relationship with K is dealt with later in these reasons.
On 20 October 2013, the father texted:
… how is my [B] girl. Well … I stayed home waiting all day hoping to see my daughter i don’t understand why u would prevent me from seeing [B] i hope ur proud of ur self and think its funny but I have missed out on some important time with [B] and your not being the responsible parent that you think you are you say you want to do whats best for [B] but keeping her away from me is not good for her.
On 26 October 2013, the father texted the mother “Can u just tell me what time ul be here please I work the rest out 10:00 is good for me how is that for u” The mother responded “I’ll come over in the afternoon around 2.30.” And the father replied “Why so late id rather 10:00 like we agreed on Wednesday night so please dont make changes to the plans I have thanks see u at 10:00”.
On 27 October 2013, the father texted:
… thank you for the half hour visit getting to see my baby girl brings so much happiness to me. but I am really concerned about the child and her welfare u are very run down and not looking well u really are not coping with the child u running back and forth to ur mummy and daddy is not good for [the child] she needs me and time with me and u need some time to rest and get ur self fit and well for [the child] it would be best for [the child] welfare to come and be with her father so I can take care of her. sorry but its been noticed by lots of people we both know lets do whats best for our daughter
Later on 27 October 2013, the father texted:
… how is [B] girl hope she is ok. please let me help as u are run down my daughter needs me please understand im have a right to my daughters welfare and safety u stopping me having quality time with [B] is so unfair

Also 27 October 2013 the father sent a text which read:
… I would like to have some time with my daughter so can u bring the child to me or do we meet somewhere. Ps you staying at ur olds and having the dog in the house with my daughter and the bummys on the table shows me and everyone ur a unfit mother and you are not coping u look like you have no idea on what ur doing the welfare of my child is in danger I will have this looked into befor its to late u need to go see a doctor before u end up in rehab like ur dad is in and out off. So please dont keep my daughter away from her father as its not doing [B] any good stopping her having her dady around. So get back to me today with the details
Ms F accompanied the father on a number of visits with the child.
On 1 November 2013, Ms F sent a text to the mother which read:
…. well I hope you think your some fantastic woman / mother… but you know your nothing but an evil spiteful human being!!!
Who the hell do you think you are keeping [B] away from her father and trying to use your own daughter as bait to cause trouble … seriously what kind of a mother would do that to her child … its obvious you don’t love your child enough to give her the best love and support her father can give her as your only worried about being the spiteful bitch you are which wont do you any justice in Court … so how about stop thinking about yourself and stop playing this stupid game of yours as Karma will bite you on the arse and you will deserve every bit of what comes your way… so grow up, think of your daughter and do whats right for her and not for yourself and be a proper mum!!!! Just stop being the bitch you are and get [B] to spend time with her father…!!!
On a date which is illegible, Ms F sent a text to the mother which read:
… the photo you have on facebook of you and [the father] is pathetic …… why you think you need to make out your a happy couple is ridiculous .. your making yourself look like a fool and your friends will only be laughing at you and will also realise your little game!!!!!
I wonder if they all know your keeping [B] away from her father. ….. seriously your friends wouldn’t think your a good mum to keep [B] from seeing her father…. Grow up … !!!
On 2 November 2013, the father texted “… can u let me no when I can see my daughter thanks”
Later on the same day, the father sent a text message to the mother which read “… I want an answer now!!! Stop ignoring me and let me know what hat time I can see [B]” The mother replied “[C Town] maccas 11 am tmw.” The father responded “Okay just dont change ur mind”.
On 4 November 2013, the father sent a text which read “… how is my little girl today. Also im coming up to ur place on Wednesday after work to see my daughter”. The mother replied “[B] is good. Her teeth seem to be bothering her a bit. Do not come to my place. I’ll meet u at [C Town] park on sat or sun about 10 so u can see [B] for a few hours.”
Later on 4 November 2013, the father responded “No I will come and see my daughter in the week so make shore ur home I will be bringing someone with me from now on as u think its all a big joke. so we will be there at 6ish”.
On 5 November 2013, the father sent a text to the mother which read:
… how isy little girl today. Also just to let u no we will be coming down to see my daughter tomorrow night about 6ish as my father is coming with me and dont want to be out all night so none of ur games be home for us
On 6 November 2013, the father sent a further text which read: “… just so ur understanding we will be up at ur house at 6ish today we cant wait to see [B]. Also how is my daughter this morning as u ignored me yesterday”. The mother replied, “[The child] is great. Teeth still giving her some pain I think. I won’t be home tonight I have a appointment so I’m not sure what time I’ll be back. I did say for u not to come. I can meet u on the weekend.” The father responded “No I have told u what is happening u will not stop me from seeing my daughter I will be reporting this to police today as u r trying everything to push me out of my daughters life we will be at ur place so be there”. The mother replied:
I had a appointment before u said u were coming and it’s with my lawyer so we can get everything sorted out. Then we both will know what is happening. I only got the letter from ur lawyer last week so I just need some time to get the ball rolling for mediation. I have never stopped u seeing her.
Later, the father sent a text:
Yes u have u have tryed everything to stop me being a father u are evil and everyone can see what ur doing so I will come if I come later ull be home im not impressed in ur so called mothering a disappointed little girl [B] will be if u keep going ill see you tonight
Later that evening the father sent a further message:
Just to let you know I’ll be coming to see [B] during the week before the weekend is here .. and I will be seeing her Sunday for most of the day so no games from you
The mother texted to the father “Do not come to my house.”
On 7 November 2013 at 2:56 pm, the father texted “So were can we see [B]” and at 3.10pm he sent a further text “See you tonite im seeing my daughter”. The mother responded “I’ll meet u at … McDonald’s tmw at 430. Do not come to my house.” Later that day the father texted:
… my family is hoping to see the child on sunday as im seeing my daughter ill bring everyone and some food for the bbq there should be a great day for my family. And from now on you dont msg or talk to my family everything goes through me they dont wont you to keep playing ur silly games ok but ill get them to tell u that on sunday ok
A short time later he texted “Tomorrow when I see u ill collect the money u owe me u have had plenty of time now so bring my money with u or bank cheque ok”
On 8 November 2013, the mother received a text message from Ms F. Ms F said to the mother:
It was lovely to see [the father] with his daughter today, it just shows how much love he has for her… pity you have to bring your mother everywhere with you, just shows how uncapable you are as a single mother … amd yes im watching
On 10 November 2013, the father sent a text which read:
I would like to see [B] on Wednesday and friday afternoon at 5:30 at [P Town] Macdonalds. And as for sundays from now my parents are going to come to my place to spend time with me and [B] so 11:00 u can bring [B] with some expressed milk on formula and leave [B] with us for 2 or 3 hours as everyone thinks this is a joke how u are treating me and [B] and putting everyone out and trying to be little my parents they feel like ur trying to just spite me through [B] so u can trust that my parents will be there as a park or Macdonalds is not good enough for [B] or anyone so stop all ur games coz it pissing my family off”.

The mother responded the following day “I can meet u wednesday at 5pm at [C Town] Mcdonald and Sunday at 10am at [C Town] Mcdonald or the park if weather is nice. [C Town] is half way”.

On 12 November 2013, the father sent a text:
…since I haven’t heard from u since sunday I take it ill be seeing my daughter tomorrow at 5:30 [P Town] Macdonalds. Also it would be good of u to let me no how my daughter is this game your playing not letting me no about my daughter and replying to me straight away will have to stop as u need to stay with mumma and dadda all the time [P Town] is half way see u tomorrow ill bring someone
The mother responded “I sent u a message today with a pic of [B] and I sent u a message yesterday explaining I can meet u at [C Town] on Wednesday at 5.”
On 13 November 2013, the father texted to the mother “So is it [P Town] or [C Town]” and the mother replied “[C Town] at 5pm. I have sent u messages and a email.”
The mother, the maternal grandfather and K arrived at C Town as arranged with the child. The father arrived with Ms F. At the end of the visit, the maternal grandfather asked the father to give the child to him. The mother deposed to the father being offensive and insulting to the maternal grandfather and calling him a “psycho” saying “You need to go back to rehab”.
The father has a different account of the event. He deposed that the maternal grandfather threatened him and the mother intervened. Whatever happened, the child was being held by the father at the time. The police were called. The father made a statement and an interim AVO was issued for the protection of the father. A copy of the application for the interim AVO is attached to the father’s affidavit. He neglected to include the fact that the police declined to proceed further.
Later that day the father sent a text which read:
…I would like to see my daughter on Friday at 5:00 at [P Town] Macdonalds as iv met u were u wanted u can meet me there and ill have a hour with my daughter and this time I will bring [Mr Q] as they want to see [B] so reply or email me back by tomorrow as u have problems with ur phone or getting back to me cheers
On 14 November 2013, the father sent a text which read:
… as u still have not got back to me about a time for tomorrow I will ask agen I want to see my daughter tomorrow after work at 5:00 at [P Town] Macdonalds as I need time with my daughter and need to know she is safe and well I also feel that my daughter is not getting enough milk or filling up or putting on wait I believe that it is for [the childs] welfare that we start her on a bottle feeds and give her some quality feeds so we can talk more about this tomorrow or over the phone but [B] needs more care so will 5:00 tomorrow good for u
The mother responded:
I will meet u at [C Town] McDonald’s wed at 5 and Sundays at 10am. [B] is seeing the nurse on Tues at 930. She will weigh [B] and tell me what is best for [B]. Last time I saw the nurse [B] was doing really well. She may be starting on solids soon.
On 14 November 2013, the father texted:
… I want to see my daughter why are u so agenst [B] being in my life u will not take her away from me I want to see my daughter tomorrow at 5:00 I will come to [C Town] if u cant be bothered to come down to a better meeting place
On 15 November 2013, the father sent a further text which read:
… I want to see my daughter today u will meet me at [C Town] Macdonalds at 5:00. Also sundays will be at 11:00 at [P Town] Macdonalds my parents are going to come every sunday to see there granddaughter so that will be the times it will work for the family so grow up and stop trying to make it hard for me and my parents to see [B]
The mother responded “I can’t meet u today. It will be wed & Sundays. I can meet u at [R Street] … at 11 on Sunday.” The father replied “No sorry it wont be there it will be [P Town] Macdonalds at 11”.
On Saturday 16 November 2013, the father texted:
… tomorrow at 11:00 at [R Street] will work out good me and my parents will take [B] shopping for some new cloths as we have noticed [B] has all second hand cloths and are dirty as u must be struggling with it all we will go take [B] to shops see u there …
The mother replied:
[B] is never in dirty clothes. The only second hand stuff she has is from ur sister and mine. I don’t know why u keep implying that I’m not looking after her. She an amazing baby. She is growing and learning new things all the time. U should be proud of our beautiful baby girl not trying to imply bad, hurtful and negative comments all the time.
The father responded:
Im very proud of my daughter just not proud of you and how ur treating my daughter u need to get her in a better and cleaner invirament ur not doing a good job
On 21 November 2013, the mother sent a text to the father which read:
The most important thing for the child now is to be with her primary carer and to have short frequent visit with u. The family court will decide what is best for all children involved. I tried to keep things between us open & honest so we could at least get along for [B]. U can’t even talk to me properly. I am doing what I have been advised to do for [B’s] best interest.
On 22 November 2013, there was an exchange of texts about the father taking the child to have photographs taken with Santa. The father texted the mother “Do ur best I no is not much but try also put my girl in her new cloths that I gave u dont bring my girl in dirty cloths this time”.
On 23 November 2013, the father sent a further text “… dont forget I want my daughter at 10 so I can line up for santa photos ill meet u at that coffee shop with [B’s] new cloths on”.
On 23 November 2013, the father sent a text which read “… can u bring that paperwork u where telling me and my parents about last sunday”. The paperwork to which the father was referring was a paper by a child psychologist, Mr T. The paper dealt, in part, with contact regimes suitable for children of the child’s age.
The mother gave evidence that she believed she had given a copy of the document to the father. The father said he did not receive it. On 25 November 2013, the father sent a text:
… Wednesday what time will u be turning up if its 5 make it 5 if its 5:15 I need to no. also from now on every appointment for [the child] I am to be informed a week in advance in writing as I have all the rights to no this also you dont make any decisions about my daughter with out me and that is the law also I will be having more time with my daughter. you have been telling apsalot lies and standing there and lieing to my mother and the embarrassment to my family and daughter. I love my daughter and you pull her away for her father [the child] is not in safe hands of u and ur family I am really concerned for my daughter welfare
The mother responded shortly thereafter:
I have told u about every appointment and I have sent u a message after he clinic appointments. I have involved u in decisions for [B]. My lawyer is representing me when it comes to working out custody so stop trying to intimidate & bully me into doing what u want all the time. [B] is a very happy baby & she is developing and reaching all her developmental mile stones. If she was not being looked after that would not be happening. I can assure u I’m not the one lying about anything. Don’t message me again all correspondence needs to be via email unless to say ur running late to a visit.
The father replied:
No by msg thats how it goes and there is no bulling or intimidate that is what you and your parents are doing to me so lets get a move on and get this in court so its all taken care off and your kidding ur self if u think ur doing the best for my daughter see u Wednesday at 5:00 on the dot at [C Town] Macdonalds and I will be having more than 1 hour thanks…
The mother replied “My parents are supporting me. Not trying to intimidate u.” The father responded “Ok if thats what u call it I feel very intimidated by u and ur mother and father very intimidated”.
On 26 November 2013, the mother texted “[The child] just had her 4 month immunisation. She was upset but A all ok now. Dr said she is very healthy and going well.” The father responded:
I told u I wanted to no all appointments I wanted to be there for my daughter u never even said anything last night ur a dead set child brainwashing deceiving destroying ………… stop ur games ps im getting the child to my doctor
The mother replied within minutes “Um I sent u a message telling u.” The father responded “No u did not u lier no mention of apointment today well sort that in court too grow up”.
On Wednesday 27 November 2013, the mother sent a text “I cannot meet u today. I have no one to look after [K].” The father responded “How is that my problem u look after him I have the right to see my daughter you turn up or me and [Mr Q] will come too ur house dont start this shit with me be there at 5:00”. A few minutes later the father sent a further text “U bring him with u like all other times so dont care about ur problem with ur son. U made me change all my work schedule to make Wednesdays so u be there”. The mother responded:
He is intimidated by u. I can’t take him near u. It only worked before because my dad was there. Now he can’t be there. I’m trying to work something out. If u could just Calm down and be normal I could bring him with me but ur aggressive and nasty. So it is ur problem. If I can come [B] can’t stay longer than 1 hour.
The father replied:
Stop ur fairy tale storys I need to see my daughter be at 5:oo im more intimidated by u and ur family I have always been nice to him so story telling I want cop that see u at 5:00 [C Town] Macdonalds
On 27 November 2013, at 4.49 the mother texted the father “I’m at [C Town].”
The father arrived with Ms F. They took the child into the park. After about half an hour, the mother saw the father feeding the child a bottle of water. She approached him and said “What are you doing. She can’t drink water at this age”. The father continued to feed the water to the child, took a photo of himself feeding her and then later posted the photograph on his Facebook page. The mother took the child from the father and left. The mother deposed that, as a result of that incident, she did not feel that the child was safe with the father and she decided to refuse further contact with him but to continue the child’s contact with her paternal grandparents and aunt. The father’s mother, in cross‑examination, said that when the father became aware that they were still seeing the child he was angry and said nasty things. The mother deposed that the father’s sister told her that the father had posted upsetting comments on Facebook about his parents, his sister and the mother that so upset the paternal grandmother’s sister that she blocked him from her Facebook.
In cross-examination about that incident, the father agreed that he did not ask the mother if it was appropriate to give the water to the child. He did not tell her what was in the bottle. The mother had no way of knowing that the bottle contained boiled, cooled water. On 15 October 2013 the mother had told the father in a text that the nurse had advised that the child not have water but only breast milk. The father chose to ignore the advice given to the mother and her clearly expressed wishes.
On 29 November 2013, the father texted “… how is my girl hope she is ok. So on sunday what time will me and my parents meet u at the [U Town] police station so we all feel safe”. The mother responded “[B] is great. Smiling and happy. Rolling over all the time. I’m I consultation with my lawyer regarding visits. I will let u know.”
On 30 November 2013, the mother texted the father “I am not comfortable meeting u again until we have a parenting order in place.” The father replied “So u saying ur not going to let me and my family see my daughter”.
On 1 December 2013, the father sent a text to the mother which read:
… I am the childs father and I need to see my daughter stop ur games I will go to the [U Town] police station at 11:00 with my parents and let the police know when I get there that u are to meet me here so I can see my daughter and bring all [Bs] medical and birthing records as I have asked many times over and over. You have no excuse not to turn up as the police will be watching over us all thanks we will see u at 11
On 3 December 2013, the father sent a further text:
… how is my daughter I would like to see [B] tomorrow at the police station at U Town as you didnt let me see [B] long on Wednesday and didnt turn up on sunday so can I see [B] tomorrow at 5 please
The mother responded:
[The child] is good. One eye seems to be red and sore just been bathing it. I can’t meet u at the police station but I have found a service that may help us. I’ll post u the details.
The father replied:
Police station would be the best place for all as that is my advice from the solisetor and the mediator and the police so will u meet me there at 5 tomorrow as its Wednesday and u have stop my rights to see my daughter
On Wednesday 4 December 2013, the father texted, “… im still waiting on ur answer about today seeing my daughter I can meet u at the police station in U Town at 5”. Later that night the father texted,“… can u send me a photo of my daughter eye from today and I would like copys of all medical reports and I would like a medical report on B’s eye sent to me by tomorrow morning”.

On 5 December 2013, the father texted:
U should take [B] of the floor as ur place is dirty and u have that dog inside no wonder my girl gets sick u got to start to think of her health and safty my god u worry me
The mother responded “The dog is not inside and my house is clean.”
On 17 January 2014 the father sent a text:
Hey how is my little girl. Probably missing out on so much well if it easier ill come up over the weekend to see my daughter get back to me hope all the clothes look good on her. hope ur looking after my girl I no its hard for u as u cant hear [B] in stress and crying I feel sorry for [B] that you have taken her daddy away anyway keep a ear out for her and keep that dog away from my daughter its not a safe dog for kids try care ill be up to see my daughter thanks
The mother responded “[The child] is very well. She is happy. Growing a lot. Do not come to my house. I am not comfortable meeting you until a parenting order is in place.” A few minutes later the father responded “Dony no yet what time we will be there ill let u know”
On 25 January 2014, the father sent a text which read:
Well … for ur records I have only ever sent messages and emails asking about my daughter and her welfare im not at all interested in u or ur wellbeing and dont care if ur not happy you did it to ur self. for the records I do not no what u a n d [Ms F] talk about over msg or email as I havent seen or hurd from her in month or so. And ill keep asking about my daughter so u go do what u want to do with it but treat good peaple like crap it will come back at u. and making up story’s with the child get with it I wasn’t born yesterday ps the law is I can see my daughter anytime ok I created her ur luck thats all
On 27 and 28 January 2014, the mother sent messages to the father saying that the child was well and happy.
On 29 January 2014, the father sent a text which read “Are u having fun stopping me from being part of my daughter life emm”.
On 3 February 2014, the father sent a message asking to see the child. He said:
… can I come spend some quality time with my girl take [B] shopping my little princess deserves to be treated better lets take her out and treat her like the princess she is can I do that please
The mother responded “[The child] is going really well. That may be possible once a parenting order is on place.” The father replied “Lol ull never treat [B] with the honor and respect theshe deserves my daughter is neglected by u my god … have a heart what is wrong with u”
On 10 March 2014, the mother sent a photograph of the child to the father. He responded “Hope it makes u feel good that I miss out emm she looks nothing like u thank god”.
The maternal grandmother, who is profoundly deaf, deposed that the father had been very critical and nasty to her about her deafness. She chose to give her oral evidence using Auslan which is her first language although she is a capable and very accomplished lip-reader and she can speak. She is employed as a disability support worker with both clients who have hearing difficulties and clients who can hear. In her communications with the father she utilised lip-reading to understand him and she spoke to him. She works with young people who have behavioural and mental health issues.
The mother and the maternal grandmother use Auslan together and the child uses both Auslan and speech.
The maternal grandmother deposed to an incident at McDonald’s on Mothers’ Day in 2014 when, she said, the child had fallen asleep towards the end of the scheduled time and, the mother being very tired, wanted to leave. The father wanted more time because the mother had arrived late. The father deposed that the mother’s response to his request was to tell him to “Piss off”.
The grandmother deposed:
I then saw [the mother] say: “[The child] is asleep. It’s time for us to go. What do you want me to do?” I saw that [the father’s] body language was aggressive. He was leaning forward and his face was angry and he was pointing his finger. [The father] is a strong man and he does heavy work. I was fearful. I saw that other patrons were stopping and looking at him. [The father] continued to harass [the mother] and I stopped. I was watching [the mother’s] face and her reactions. I could see that he would not allow her to speak. I saw [the mother] attempt again to explain to [the father] that the child was asleep and it was already 11.20 or close to and we had to leave.
I turned around and faced [the father]. I said to [the father] verbally and in sign language: “Stop. Talk to your lawyer.” [The father] then said: “I can’t understand you, I can’t understand you. I can’t understand you. I can’t understand you.” and “I’m not listening to you”. I then said: “You understand me perfectly but you do not want to liste”. [The father] then commenced a further rendition of “I can’t understand you. I can’t understand you. I’m not listening to you.” [The father] did not stop repeating those phrases until I walked away.
[The mother] and I continued to try to walk away from [the father] and he followed us down the carpark. I had my arm extended around [the mother] to try to act as a barrier between her, the baby and [the father]. [The father] pushed in behind me and said standing very close to my face with his finger pointed in my face, “You stay out it”. He then pushed my arm out of the way. [The mother] tried to talk to [the father] again and then we both realised it was a waste of time trying to speak to him. We turned away from him and walked to the car. [The mother] was visibly upset and distressed by this incident and kept apologising to me …
The maternal grandmother was not cross-examined in relation to that evidence and I accept that the event occurred as she deposed.
The maternal grandmother emphatically denied that the mother at any time had told the father to “piss off”. She was standing next to the mother and could see what the mother was saying to the father.
The notes produced by J Group record that on 30 August 2015 the father stated he was concerned that each time the child came for supervised contact she was sleepy and he was concerned that the mother may be drugging her. The father stated that he might take one of the child’s nappies for analysis. In cross‑examination the father was asked about that record. He said that the suggestion that the child was being over-medicated was first raised by the supervisor although he agreed that he considered taking one of the child’s nappies to be analysed. I do not accept the father’s evidence which is contradicted by the supervisor’s notes.
Previously, in the same session, the notes record that the father asked the supervisor about the child’s sleeping and whether he could get a doctor to intervene (I presume to either examine the child or take a blood sample from her) as he felt that the mother might be drugging the child.
On 1 September 2015, J Group contacted the father and suggested that if he had concerns about the child being drugged by the mother he should contact the Department of Family and Community Services.

It was the father’s case that he and K had a good relationship and that the mother’s evidence that K was apprehensive of the father was a fabrication.
In his trial affidavit the father deposed:
In or around March 2013 [the mother] and I were having difficulties in our relationship particularly in relation to the discipline and behaviour placed on [K]. This then led to our subsequent separation around mid March 2013.
On 26 August 2013, when the child was just over a month old, the mother sent a text message to the father saying that she was having difficulty getting anything done in the house without the child crying. The father responded:
Hey im doing paperwork. why cant u get bogen to do dishers for u and clean up he would be sitting there doing fuck all for u get ur hart of ur sleeve and get him to clean up.
The mother responded “Stop with the name calling. He is my son.” The father replied “Oh poor buba fuck me kick him up the arse.” The mother replied:
U have not been here to c how helpful he has been. All the time I was pregnant & over the last few weeks he has been here helping me with everything. U were not here. I think it’s ur arse I should kick. Leave [K] alone & stop putting shit on us.
Annexed to the mother’s affidavit is a report from a social worker, Mr V who provided counselling for K between 9 October 2013 and 10 July 2014. Mr V reported, in a report dated 18 August 2014:
One of the themes explored during our counselling sessions was [K’s] fear for his, the child’s and his mother’s safety from [the father].
One of the strategies that we came up with together in our counselling sessions to assist [K] feel safer, was that [the father] no longer visited the family home as this was their safe place, especially for [K].
[K] reported feeling more safe since [the father] was no longer coming to their home.
It came to my attention during my conversation with [K’s] birth mother on 13/08/14 in regards to [K] that a change in contact arrangements set out by the Court currently allows [the father] to drop back the child to [K’s] family home after contact with his daughter. [The mother] indicated that this current arrangement is negatively impacting on [K] feeling safe, of which I have no doubt, based on my past interventions with [K].
I respectively recommend that the Court please take into account the emotional and psychological wellbeing of [K] to maintain his and the family’s safe place and that contact arrangements change so that pick up and drop off of the child occurs at a neutral place and not the family home.
a)It is possible that the father believed that his relationship with [K] was a good relationship. If that is so, this is a reflection of his lack of emotional insight and his lack of understanding of the effect of his actions on others.

THE EVIDENCE OF DR G

Dr G interviewed the family in August of 2016 and prepared a report in September.
The mother told Dr G that:
She felt affronted by [the father’s] criticism of her. He said that she wasn’t [I infer a good mother] because of her hearing. This was a very deeply felt and hurtful comment that she could not be a competent parent because of her deafness. She was also affronted by the fact that [the father] accused her father of assaulting him and also her mother of assaulting him. This was also very deeply offensive to her.
Dr G recorded:
[The mother] described a good relationship with [the paternal grandparents] initially. She allowed [the paternal grandparents] to see the child even when [the father] wasn’t seeing her. Then the situation became difficult. “[The father] found out and got cranky. He forbids me to talk to them.”
Dr G recorded:
Other concerns for [the mother] included the fact that there was a criminal history. They had completed a search and found that [the father] had been charged with sexual assault of his two children when they were 5 and 3. In addition, there was a report of an assault on an adult. [The father] had no contact with his boys for 15 years.
[The mother’s] main concerns are that he may be a sexual risk to [the child] and also his psychological abuse and manipulation of [the mother]. [The mother] was concerned that [the father] could be demeaning of [the child] and denigrate [the mother’s] family in front of [the child] by deriding them. She wasn’t particularly worried about physical abuse although she wasn’t sure and she wasn’t particularly worried about sexual abuse although she couldn’t be sure …
The mother told Dr G that she believed that the paternal grandparents were safe people to care for the child. The mother also told Dr G that it was her wish for the child’s contact with the father to continue to be supervised. She said that the father continued to be negative and critical of her parenting and she found his accusations unacceptable.
In relation to his interview with the mother, Dr G concluded:
In all it appeared that the major concerns for [the mother] were that [the father] may denigrate her and her parents in front of the child and that she wouldn’t know that this had happened. There didn‘t seem to be a great concern about physical or sexual abuse although there was some doubt about potential abuse because of the previous history of being charged.
In relation to the father Dr G noted:
He seemed friendly and at times overfamiliar and awkward in his manner. He tried to be affable but at times his attempts were a little clumsy. He’d make attempts at humour that were unsophisticated. However, his intention appeared to be positive. … He appeared to be aware of certain problems but not particularly insightful into the potential impact that his manner may have on others.
In relation to the allegations made against the father by Ms S, the mother of his two sons, Dr G reported:
I asked about legal problems and whether he’d been charged with any offences. He said there were allegations from [Ms S] that he may have sexually touched his two boys. Allegations were that he had touched [Mr H] on the scrotum. The allegation was that he had urinated on the children. He found these allegations to be disgusting. The criminal charges were dropped. [Ms S] didn’t attend. There was no result from the court case. Then he ran out of money and wasn’t able to pursue the family court and so he didn’t follow through to see the children. He lost contact with the children for many years, perhaps 15 years.
Clearly it is not possible to ever achieve a clear resolution to allegations of sexual abuse. From the information I reviewed it would appear from the assessment of the Police that the allegations of sexual abuse against [Mr H] were urinating on [Mr H] in the shower and pulling his penis and scrotum. It did not appear the police assessed this as sexual play or sexual intention. The forensic assessment appeared to be consistent with inappropriate behaviour and lack of judgement; the immature behaviour by the father I have noted throughout the interview.
In relation to the father’s perception of the relationship between himself and the mother, Dr G noted:
They did try to live together for a few months. However, there was a struggle for them to communicate with each other and the relationship didn’t work very well. [The mother] became very upset. He didn’t know why the problems were developing. He didn’t seem very aware or intuitive.
After the birth there was contact as he wanted to see the child. Sometimes he would stay overnight at [the mother’s] house. Then [the mother] suddenly left. “She took off to Melbourne. They didn’t have any contact for 5 days. I’m not sure why. She refused me to see (sic)”. He then decided to take legal action although he didn’t seem particularly aware of why there were such problems. [The father] said he wanted to have regular contact with the child and couldn’t see why he couldn’t have healthy contact with [the child].
I asked him about [the mother] as a mother. He claimed that she seemed to manage well. “She’s not a bad mother”. [The father] did have some concerns about [the maternal grandfather] because he had bipolar. He had some concerns that he could be a danger to [the child] but he wasn’t really sure why. The deafness issue was not a major problem in the mother’s parenting. He’d like to have shared custody if possible but be happy to have substantial contact. He’d like to have fortnightly weekend contact and half the school holidays if possible. “I want 4 weekends”.
[The father] claimed that he didn’t denigrate [the mother]. However, at the start he did acknowledge that the situation was tense and there were some nasty comments that were made.
Dr G interviewed the mother and the father together. He reported that they both looked uncomfortable and the mother, particularly, was quiet. In the presence of the mother the father told Dr G that he would be open to the idea of counselling. Dr G noted that the father said “I’m happy to communicate. I’m happy how to learn how to do sign language. I’m open to ideas. I want to move forward. I want to communicate as adults.”
Dr G reported that the mother then said:
“The best way is to stop criticising my mother. He didn’t want [the child] to learn how to sign. He hasn’t apologised for what he has said. He hasn’t apologised for making me out to be a bad mum. He criticises me.” [The father ] looked a little surprised. [The father] initially said, “I don’t recall dragging her down.”
Dr G continued:
Then [the father] attempted to be conciliatory. He said “I apologise. I am deeply sorry for any heartache.” [The mother] then continued and said “The affidavit hurt me a lot. A lot never happened. I’m not sure why my dad needs supervision. That hurt me. I have never stopped her seeing [the father]. I just want her to be safe. I found out horrible things about you and your children and I’m worried.” [The father] strongly tried to infer that he was open and had never hid anything about the allegations against him from his previous marriage.
Then [the mother] added, “You said I am bad and my father and my mum are violent”. Then [the father] as if acknowledging that he’d made these allegations of violence against her and her parents seemed to justify it by saying, “You made allegations against me. I am not a bad father”. [The mother] said she believed the best outcome would be for there to be ongoing contact which is supervised. Then again [the mother] reiterated, “It’s best not to criticise me”. [The father] tried to be conciliatory again. “I’d like to put it all behind us. The child is happy. We can work together. My parents have no problems with your family.” [The mother] said, “I think we would have been able to work together if you hadn’t said all those nasty things.”
Dr G commented:
This appeared to be an interesting acknowledgment that it could be possible for them to work together and that much of the early negativity from [the father] and the deeply felt criticism of her and her parents and reference to her disability were extremely hurtful and damaging.
Dr G spoke to K. He noted:
[K] (sic) explained that initially he related reasonably well with [the father] initially but then it deteriorated. “He put me down. He got too rough. He wouldn’t know when to calm down.” [K] (sic) seemed to be describing that [the father] was somewhat inconsiderate.
Dr G spoke to the maternal grandparents. The maternal grandmother told Dr G that she thought contact with the child should be supervised until the child was 18 and the maternal grandfather supported her. The maternal grandfather said “I don’t think he should be seeing [the child] at all, but if so it should be supervised. He has a criminal record.”
The child was observed with her father, Mr H and the paternal grandparents. Dr G recorded:
[The child] woke up and was in a separate room with [the mother]. When she woke up [the mother] indicated that she could go and see her father and her grandmother ... [The child] nodded and said that she’d be happy to go. She was happy to be handed over to [the paternal grandmother]. There was warmth and cooperation between [the paternal grandmother] and [the mother]. Then [the paternal grandmother] carried [the child] into the next office.
[The child] was pleased to see her father. [The paternal grandmother] passed her to [the father] and she sat on [the father’s] lap. She cuddled [the father] and seemed very warmly responsive to him. She clearly had a good attachment to her mother and her mother’s family and also to [the father] and to [the father’s] family. [The child] seemed quite happy.
Mr H told Dr G that this was only the second time he had met the child.
In relation to Mr H, Dr G reported:
I asked [Mr H] if he had any comments. He stated that, “It’s not fair to not know your parent.” He said he had nothing to do with his father for 15 years. He didn’t really know why he didn’t see his father. He didn’t have any memories of any bad event. “It was so long I stopped asking why.” He made contact with his father at 18. [Mr I] however doesn’t speak. He doesn’t have any contact. [Mr H] doesn’t have any contact with [Mr I]. It would seem that he is distant from both his mother and [Mr I].

Dr G commented that while he was conversing with the adults the child was happy sitting on her father’s lap. He commented that the father’s interaction with the child was very positive. She appeared to respond well to him. The reports indicate that he has formed a solid relationship with her and that she is comfortable with him and also comfortable with the paternal grandparents.
Dr G opined:
[The mother] was very sensitive to criticism. She felt particularly affronted by [the father’s] criticisms of her ability. [The mother] felt demeaned and denigrated by him. She has major concerns that he may denigrate her in front of the child and she won’t know what he’s been saying to her. [The mother’s] particularly sensitive to the potential of females being vulnerable to males.
Her experience with [the father] was that he was controlling and obsessive and perfectionistic. This made it impossible for her to be able to reside with [him]. In addition, she felt demeaned and criticised by him. Again she found this intolerable. There was no clear physical assault or violence. I don’t believe she felt physically threatened. Her main concerns were being verbally denigrated and other concerns relating to the history of [the father]. The history that she was concerned about was the sexual abuse allegations of [Mr H] and [Mr I] when they were 5 and 3 years old respectively.
There was also some mention of AVO’s as well against him as well as an assault that he was also mentioned to be associated. The combination of her experience and the doubt about [the father’s] record has resulted in her feeling some concern. This combined with her hearing disability and her experience of an attempted rape when she was 16 have understandably created significant doubt for her to be able to be confident that [the father] is a safe person. However, if these issues can be addressed, I believe that she would be able to sensibly respond to what may be in the child’s best interest.
[The mother] did acknowledge in the joint interview that her major concern had been the nasty allegations of violence against her parents and the aspersions that he had cast against her ability as a parent soon after [the child] was born. Therefore, it would appear that her major concerns were in relation to [the father’s] verbal attacks against her and her parents.
Dr G considered the allegations that had been made in relation to Mr H and Mr I, noting that the father had separated from their mother when Mr H was four and Mr I was two. Dr G reported:
There was some contact for a period of 2 years and then there were allegations against him. The police reports seem to indicate that there was some interaction between [the father] and the children in the shower. The interaction was with [Mr H]. [Mr H] had reported that the father urinated in the shower and that he pinched his scrotum. The father tried to explain that there may have been times of urinating in the shower. There were also times when water was running off the body may have appeared like urinating in the shower. He denied urinating in the mouth of the child or any sexual interaction.
The child [Mr H] who was 5 years old at the time reported this as what had happened. It wasn’t clearly determined whether these events happened as the child described them or whether there were other intentions. It would appear that the criminal case was dropped because the mother didn’t attend. This suggests that perhaps the mother was ambivalent about the charge against the father. Nevertheless, the father also did not pursue with the family court case.
On the one hand if one looks at these events at their worst it’s possible that the father did urinate in the shower and that some urine had gone into the mouth of the child and that the father may have touched the 5 year olds scrotum. Even at the worst interpretation in my view it doesn’t appear that this is consistent with sexual abuse where there is an intention of sexual gain from the father. It was reported in the Police notes that the father’s response may have been and behaviour may have been immature rather than with sexual abuse intention.
In relation to the father, Dr G reported:
The father’s appearance and interaction appeared to be rather unsophisticated. He did try to make facetious comments in an attempt to be jovial but he didn’t particularly show a great deal of sensitivity. … It would be consistent and I suspect that he also did make angry comments towards the mother and the mother’s parents. He didn’t seem to realise that this could have such an impact emotionally on [the mother]. In particular, making negative comments about [the mother’s] parents about whom she’s very defensive and protective. In addition he also made comments about [the mother’s] deafness invalidating her as a competent parent. The criticism of [the mother] as a parent was done and justified as she had criticised him. I do believe that he was genuine in trying to apologise to [the mother] and that he did not want to harm her and wanted an amicable outcome.
Dr G commented:
[The father] didn’t seem to understand and was not particularly sensitive to the needs of a new mother and the needs to breastfeed a child and allow a child and mother to be with each other as much as they needed to. It would appear that there is an immaturity and lack of sophistication that has been a problem.
It was Dr G’s opinion that although the father is unsophisticated, and perhaps somewhat insensitive and immature, he has a significant contribution to make to the child.
Dr G commented that:
Should the child remain in supervised contact indefinitely I believe that this is unlikely to be workable and is likely to breakdown. There is likely to be a division between the families and the relationship between the child and the paternal family is likely to breakdown.
He said:
Should there be regular unsupervised contact I believe this would probably be a good outcome however, there would be increased anxiety from [the mother] about the unsupervised contact and her parents. This could create a problem particularly if [the mother] and her parent’s anxiety remain high.
Dr G’s third option was:
The next option could be for more substantial contact with the father. This would require the father changing his work hours and reducing work. [The mother] would find this quite threatening and possible (sic) a little overwhelming at this point of the child’s development.
Dr G recommended that the child continue to reside with the mother who is a capable and caring parent. Dr G commented that the mother was very impressive in the way that she has been able to cope with her disability, work and also provide for her children. I agree with those comments.
Dr G commented that the mother has good support from her parents and good insight into the child’s needs.
He recommended that there should be gradually increasing contact with the father. He stated
I don’t believe that the contact will need to be supervised in the long term. However, it is convenient for the contact to be accompanied by the paternal grandparents as this satisfies the needs of [the child] having a relationship with the grandparents and extended family as well as the father. [At the time of the report [the child] was only three years of age].
Dr G recommended the following regime:
I would suggest that the accompanied contact with the paternal grandparents continue for another year. After the age of 4. I would then suggest that there could gradually be increase in day contact.
Initially, I would suggest 2 hours for 3 months once a week in addition to the contact with the paternal grandparents. This could then increase to 4 hours and then one full day contact by the age of 5. I would suggest that [the child] continue then having one day contact with the father indefinitely. I am concerned if the prospect of substantial unsupervised contact is being pushed too strongly at this stage of [the child’s] life that contact may break down which would be sad for [the child].
In his oral evidence, Dr G opined that, if the Court wished to make prescriptive orders as to the time the child was to spend with her father into the future, a third step could be inserted between when the child is spending four hours with her father and when she commences spending a full, unsupervised day with him by the age of five.
Dr G recommended non-denigration orders and that both parents have counselling with an experienced therapist to help them deal with the situation.
In addition, Dr G stated:
I recommend that there be some robust counselling with an experienced high conflict clinician with the aid of this independent family report and the orders of the court (sic) assist the parities (sic) to negotiate and resolve their differences and to create enough trust to be able to function with each other.
Dr G reported:
Therefore in all, I formed the view that it’s important for the mother to not be undermined and that she remains well supported and strong as the primary caring parent of her two children. I do have some concerns about the father’s lack of sensitivity and his criticism with denigration of the mother. His attitude that [the child] is disadvantaged because [the child] has a mother with deafness is an unhelpful attitude to have. This makes me concerned that possibly he could undermine [the child’s] relationship with her mother. The major concern in my view is not that the father would intentionally harm [the child] or is an unacceptable risk to [the child] but that he could indirectly harm [the child] through his verbal undermining attacks on the mother.
Dr G stated:
I’m not particularly concerned from the history that there is a likely risk of sexual abuse or physical abuse of [the child], from my reading of the previous problems regarding [Mr H] and [Mr I]. My main concern is the potential damage from the father’s immature approach and lack of positive regard for the mother. As a result I believe that it would be good for [the child] to continue to have a relationship with the father combined with the paternal grandparents which should act as a positive safeguard to [the child]. Therefore, I believe that combining time with the father and the paternal grandparents and then gradually increasing time with the father unsupervised. By the age of 5, I believe that [the child] could have day time contact 1 day per week with the father. I am reluctant to suggest more than day time contact. I believe that day time contact would allow enough time for [the child] to have a positive relationship with the father.
Retaining day time contact would be useful because more extensive time would require more significant negotiation and trust and confidence between the parents that at this point does not exist. Any further time such (sic) overnight time in the future would need a much greater degree of confidence in the parents. Therefore, I also need to be confident that the father would not denigrate the mother in front of [the child] and would not cast dispersions (sic) on the mother’s parenting ability because of her hearing disability.

DR G’S ORAL EVIDENCE

Dr G’s recommendations remained unchanged after cross‑examination.
In relation to the commencement of overnight time for the child, he said that he would not be averse, at some point in time, to considering the potential for overnight contact, in the fullness of time.
He stated that this could be considered when the child was seven or eight years old.

CONSIDERATION

There is no dispute that the child will benefit from having a meaningful relationship with her father. The issue for determination is how that relationship can be fostered while, at the same time, protecting the child from the father’s controlling and difficult behaviour towards the mother, and reassuring the mother that the child will be properly cared for.
Turning, then, to the factors contained in s 60CC(3) of the Family Law Act 1975 (Cth) (“the Act”) in so far as they are relevant:
The child is three and a half years old. She has expressed no views.
The mother is the child’s primary carer in circumstances where the child has never lived with both of her parents. K has lived with the child for all of her life.
Dr G observed a warm and loving relationship between the child and her father.
No doubt the child also has a close and loving relationship with her maternal and paternal grandparents.
The mother, from the child’s birth, attempted to facilitate the father’s participation in the child’s life. The father has, at all times, wanted to participate as fully as he could. With the exception of the period between late November 2013 and the commencement of supervised time in April 2014, the father has had contact with the child in accordance with orders made by the Court. It is an agreed fact that there were 52 supervised visits at J Group. The father’s reliable attendance at the supervised visits is a testimony to his commitment to his relationship with the child.
The father has paid child support as required by the Child Support Agency.
The effect on the child and on the mother of a change in the current arrangements for supervised contact with the father was the focus of these proceedings. That issue was given careful consideration by Dr G and I accept his evidence and his recommendations. Dr G’s reasoning is set out in his report.
I accept the evidence of Dr G about the father’s lack of empathy and insight into the effect of his derogatory communication with the mother. The evidence gives no confidence that, if a regime of parenting that required communication and negotiation between the parents were instituted, the father would be able to restrain himself from continuing to communicate with the mother in the same manner that he has in the past. Neither does the evidence give confidence that the father will be able to restrain himself from criticising the maternal family and making derogatory remarks about them to the child.
However, it is implicit in the mother’s agreement that supervision must come to an end that she accepts that the father must be given an opportunity to prove that he can communicate with, and about, the maternal family with restraint. If he is unable to demonstrate that ability, there will be grave difficulties in persuading the mother that overnight time with the father is appropriate, either when the child is seven years old or at any time.
One of the matters which is to be considered is the attitude that the parents have demonstrated to the responsibilities of parenthood. One of the most important responsibilities of a parent is to treat the other parent with dignity and respect. The father’s communications with the mother, reproduced in these reasons, vividly demonstrate that he has not fulfilled that responsibility. He has been demeaning of her parenting ability, for example criticising her ability to keep the child warm and safe, her housekeeping, the way the child was dressed. He ignored her reasonable wishes in relation to the child, for example not feeding her water. He insisted on coming to her home at times that suited him despite her request that he not do so.
If the father cannot learn to treat the mother respectfully, both in person and in the way in which he speaks of her to the child, it is difficult to see how his relationship with the child can progress past the stage of day time only contact.
Continued denigration of the child’s maternal family is only likely to have the effect that the child, when she is older, will reject her father.

For these reasons, the regime of contact recommended by Dr G is appropriate and will be implemented.

PARENTAL RESPONSIBILITY

The father contends for an order that the parents have equal shared parental responsibility. The mother, supported by the ICL, seeks an order that she have sole parental responsibility.
The issues about which parental responsibility requires parents to consult are the major long-term issues for the child, which are defined in s 4 of the Act as:
(a) the child's education (both current and future); and
(b) the child's religious and cultural upbringing; and
(c) the child's health; and
(d) the child's name; and

(e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

There is a presumption in s 61DA of the Act that it is in the best interests of a child that the parents have equal shared parental responsibility when making parenting orders. The presumption is rebuttable.
The provisions of s 61DA are set out below:
Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
There is no allegation that either parent has engaged in any act of abuse of the child.
The mother characterises the father’s behaviour towards her as verbally abusive. However, the safest course is to consider whether it would be in the child’s best interests for the parents to have equal shared parental responsibility.
The child is three and a half years old. To date, her parents have not been able to agree on a surname for her and her birth remains unregistered. Annexed to the mother’s affidavit is a letter advising that, to complete the registration, either the parents must agree on a name and each sign the form or the Court must issue an order.
When the child was only weeks old, her parents could not agree that her mother could take her to O Town to visit the mother’s brother.
There has been ongoing disagreement about the child’s medical care. Despite the fact that she is a healthy child who appears to have met her milestones and be developing well, the father has, over a period of time, insisted that he wanted the child to see a doctor of his choosing.
It is instructive to read their correspondence in relation that issue.
On 26 November 2013, the father sent an email to the mother which read:
I have asked many times as nice as I can that I would like to be informed and involved in the child’s life and up bringing and apointments you don’t seem to understand that as [Bs] father I have as much rights to my daughters life as you do not own the child we both are ment to raise care and love her not pull [B] away from me. I have asked you to let me no in wrighting a week befor all appointments so I can arrange my self to be at the appointments so as you find it so funny to play your games I will be taking this matter further if [the child] has been booked in for anything or have appointments I wont to no a week befor hand in wrighting not a text message. also I also have the right to have [the child] cheeked over by my family gp so I am making an appointment for next Wednesday at 3;30 on the 4-12-13 so you have plenty of time to arrange you self to make this appointment. also if you have paperwork that states that as [the child],s father im only aloud one hour on Wednesday and one hour on sunday under your supervision and have to do what you say and sit were you say please bring this along with you tomorrow as ill get [Mr Q] to read over the documents. if you have no documents stating this then your not to even try tell me what and where and how I can do what I want see you at 5;00 at [C Town] tomorrow 27-11-13 kind regards [the child],s father.

The father, a short time later, sent a further email:
I would also like to get copys of the records of [the child],s immunisation each and every time [the child] goes to the doctors and has her neddles. also a copy of the book that the midwife feels in for each appointment I would like you to bring this along with you tomorrow with all information that you have since [the child] has been born as I am entitled to all of this information.
On 27 November 2013, the mother replied by email:
Could you please email the address for the GP?
I can give u copies from [the child’s] blue book. You are welcome to look at it. I can ask Dr [W] to print off a copy of the child’s immunisation records for you.
Please understand that all appointments & visits with you need to take into consideration I have 2 children and I may have previous appointments for [K] or myself. Could you please talk to me about available dates and times before making appointments? I have informed you of [the child’s] appointments and I have text u updates after those appointments.
I don’t have any paperwork that states u can only see [the child] on wed & Sunday however I was hoping to ease your anxiety and accusations by offering you set days and times. Final days, times & locations can be established at mediation. I was making reference to a document that explains what to do for [the child] best interest and helps outline age appropriate custody. The documents suggests that short frequent visits with the other parent is suitable for a child of [B’s] age. It explains that a very young child will experience distress when taken from the primary carer for long periods. Once [the child] is eating and drinking from a cup u may be able to have the visits with out me present however for now I would appreciate if you could stop trying to take [the child] away from me as she is breastfeeding. you have no way of feeding her at the moment.
Please try to be calm and patient, she is only a baby. She can feel the stress from you so u need to be calm when with her.
On 28 November 2013 the father sent an email to the mother:
you need to understand that I am [the child],s father and need to see my daughter with out your abusive behaver and the way you snach [the child] out of my arms when ever you feel time is up that not how you handle a baby mybe you and your father can go get some help in how to handle a small child and how to handle stressfull moments it will help you. im only looking out for my daughters best intrests as I no you think your doing the best to stop [the child] having a strong helthy relationship with her father I am asking you to try harder to see I only want the very best for [the child] as I love her as much as you. I no you struggle with your son and his behaver but that is not anyone eles as falt but his parents. and I don’t want my dautghter to turn out with problems like what I have seen from your family it is going to be hard for [the child] to live a life with out both parents together so let do the very best to get along and both raise [the child] and keep her safe and well. ps what time for sunday and how bout we go sit at the [U Town] police station for my viset as I don’t no next what you are going to try pull on me I think its probly the only way now that we have to have police with us around us as you or your family like to think that they control the fathering of my daughter very sad now you have mad it such a mess it could of been so much better than this and nice and healthy for [the child] please let me no what time to meet you at the station thanks also I will need all copys of [the child’s] medical records and documents please provide this on sunday thank you.
On 5 December 2013, the father sent an email which read:
I have been advised by my solicitor and the police that until this matter goes to court and legal parenting documents have been filed in court and heard befor the judge I have every right to see my child so unless you have something to hide we will be meeting at [U Town] police station on sunday at 11;00 am. as you have stopped me from seeing my daughter last wednsday 27-11-13 and sunday 1-12-13 and this wednsday 4-12-13 and giving me no time at all with my child and I have requested many times for all medical records and widwife records. if you are not hiding anythink from me. I would like this information sent to me asap. the name and number for the GP that you say that you have been taking [B] too. these are my rights as [B’s] father to have all off this if you are not hiding anything I would like this information as soon asap.
On 12 December 2013, the mother sent the father a short progress report about the child and concluded “I am not comfortable meeting with you until there is a parenting order in place.”
On 15 January 2014, the father sent an email to the mother which appears to have initially been sent on 30 October 2013:
… how is my daughther you do not keep my informed with how the child is every text msg I send you egnore I am intitled to no every thing about my daughter as you have stopped all accsess and phone contact I asked to have some time christmas day and your answer was no great mother wow your not. as on boxing day you made no contact to let me see my daughter I drove up to your place and herd your dog inside walking on the floor bords I have asked you so many times to keep that dog out of the house and away from my daughter as that dog is a very big risk to my child. u show no respect to me or my daughter. I knocked on the door twice as you chose to egnor me and not respond. if you cant hear that how on earth can you hear my daughter. so I left the bag of presents hanging on the front door and took a photo of the bag of presants. I sent you msg to let you no as you cant hear and you did not respond. I sent you a nother msg next day about presants and how they fit and look god on [B] you respond back much later with no presants opened I ask why no respond I just want to no about my daughter is it so hard or you hiding things from me I what to no [the child’s] health and welfare. 31.12.13.
A few minutes later, the father sent a further email to the mother, “I need to no how my daughter is and when you are planning letting me see my daughter.”
On 20 January 2014, the mother responded by email to the father saying “[The child] is well. She is just about sitting up and she has started eating. You will be able to see [the child] once a parenting order is in place.”
The father responded by email:
well that will be soon. ok keep your eyes open and your ears on my daughter. also I want a full up to date medical report on my daughter sent to me this week. and keep that dirty dog out of the house and car as you have been seen with it in your car with my daughter it is not safe. you need to start relies and thinking about safty in the house as your place is a danger zone hope you can start to think and act on this befor my daughter is harmed and you don’t wont that do you …
On 28 January 2014, the mother posted to the father, by registered post, photocopies of the child’s newborn examination, 1-4 week health check, 6-8 week health check, progress notes and immunisation records. That letter was returned to the mother uncollected.
On 18 April 2014, the father sent a text message which read in part:
… how is [B] girl could u tell me more about [B’s] medical how is [B’s] health and eye site and hearing could I see some reports on [B’s] health I also ask u to do something about that fire place in your house as it dangerous I dont want [B] hurt
The mother responded shortly thereafter:
[the child] is good. She has not been sick or required any medical attention so there r no medical reports to view. She had her 6 month check and there were no concerns regarding her hearing or eye sight or her development.
On 28 April 2014, in response to a message from the father, the mother sent a text to the father which read:
I can post you a copy of the [X Child Care] parent hand book for your reference and a copy of the child immunisation records however there are no further records to view as I explained before. I have tried posting this information before however u claimed to have not received it. Please contact my solicitor to address any other concerns you may have.
On 2 May 2014, the father sent a text confirming contact time on Sunday and asking the mother not to be late. He concluded “… and also [the child’s] health and welfare u haven’t been bothering to keep me informed I need u to keep me updated every day thank u”. The mother responded “[The child] is sneezing and has a running nose today. But seems ok otherwise. She may need to see a Dr. I’ll let u know.” The next day, 3 May 2014, the father sent a text to the mother which read:
… how is my little girl this morning I think u need to get some decent heating in ur place as the dangerous fire place u have dose not warm the house up and keep [B] warm this is why she has runny nose please give it some thought. also need conformation for sunday morning at 9am [C Town]
The mother responded “[The child] is ok. Still has a run by nose but otherwise she is still happy and smiling. Yes I will bring her to met u on Sunday at 9.”
On 7 May 2014, the father sent a text which read
… as I haven’t hurd from u since sunday and I have asked nice to be updated and informed about [the child’s] health and welfare can u please give me a update and email me any doctors reports please also still after a extra hour though the week and I need to be involved in selecting a daycare and coming to meet them so it would be nice to work on all that thanks
The mother responded “[The child] is good. She has started saying mamma and dad da sounds. She went to the baby clinic yesterday and she is doing well. Her weight and development fine.”
On 11 May 2014, after the father had spent time with the child in the morning, he sent a text to the mother:
how is my little girl you keeping her warm I noticed today her runny nose u need to warm ur house up of a night the night cold air up there is not good for baby’s try looking into fixing the heating in that house the welfare of my child is in danger
On 24 May 2015, the father sent a text message to the mother which read:
… [B] is doing great with me and trying to teach her words how to speak better its very important to [B] to learn to communicate correctly so im really trying to get [B] up two speed with her words. so i hope u will do the same. also counting we get 1234 but its a good start but i ask that u will involve ur self in the learning process as its best if we both want the best for [B]. thank u. [B] loves me. and every one of my family loves [B] she is very looked after and cared for by all of us. [J Group] is going good
The mother regarded this text message as being critical of her own ability to teach the child to speak and suggested that she is not interested in the child’s speech and communication. She regarded it as insulting.
On 22 October 2015, the child’s general practitioner, Dr W, provided a report which stated:
This is to state that as her general practitioner, I find the child’s speech to be perfectly normal for her age. I can also state categorically that her mother … despite a moderately impaired hearing, is functioning at a high level in speech and hearing. I have no difficultly in conversing with her and have observed her interaction with the child. [The mother’s] verbal communication to [the child] is clear and adequate.
[The child’s] speech development is not hampered by her learning to use sign language. As a normal child she is completely able to speak well and also learn to sign to be able to communicate with her maternal grandmother who has a more profound hearing loss. Such a skill is desirable for her emotional development.
Currently there is no agreement about what school the child should attend when she starts school in 2019. The mother wants to enrol her at X School, which is next door to the mother’s place of work. The father has suggested other schools which he believes are more suitable and are further from the mother’s work. On the available evidence, there is little likelihood of any agreement.
This is not a matter where the parents are incapable of communicating. A perusal of their written communication suggests an excess of communication. Rather, this is a case where the parents are incapable of agreement.
It is not in the child’s interests for her to be disadvantaged because her parents cannot reach an agreement about important decisions such as which school she attends or which doctor cares for her.
Counsel for the father submitted that the form of the order sought by the ICL was ineffective because no order could ensure that the mother gave genuine consideration to the father’s views about any decision. I accept that this is so but the mother has, in the past, provided the father with information, unprompted, and I accept that, if she is required to do so, she will consult with him about any important decision. There is no evidence that she will act perversely or make a decision only to spite the father. Ultimately, if they cannot agree, she will be the decision maker.

SURNAME

Both parents now agree that the child should have a surname which includes the names of both of her parents.
The father’s explanation for wanting the child to have the surname “Beach‑Watson” appears to be that he is concerned that, if the mother should marry and take the surname of her husband, she will change the child’s surname to that of her husband.
That concern is easily laid to rest by an order that restrains the mother from changing the child’s surname without his consent or an order of the Court.
Documents attached to the mother’s affidavit record that the child is known at her pre-school and to her general practitioner as “Watson-Beach”.
Presumably, that is the name the child calls herself.
There is no evidence that suggests that there is any benefit to the child in changing the name by which she is now known.
The orders will provide that the child be known by the surname “Watson-Beach”.

THURSDAY OR SUNDAY?

When the child reaches four years of age in July 2017, the father proposes that her contact with him take place on Sunday rather than Thursday as it presently does. In support of that application, the father relies on the fact that, on Sunday, he will be able to involve the child in activities with the rest of his extended family including cousins and, presumably, with Mr H and Mr H’s partner and child. Those opportunities are limited on weekdays.
The father also submits that, although he is self-employed, Thursday is a working day. The father works as a tradesman.
On behalf of the mother it was submitted that Thursdays are convenient for her as she does not have to factor K into any arrangements for Thursdays. The child would then have the whole of each weekend with K.
No doubt it would be convenient for the mother if she does not have to accommodate time for the child with the father into her weekend arrangements. K is almost 14 years of age. He will, in the normal course, have commitments of his own at the weekend which will not include the child. The child will start school in 2019 and Thursdays will not be convenient.
I accept the submission on behalf of the father that the opportunity for the child to spend time with her extended paternal family is important. The Orders will provide for weekly contact to occur on Sunday once the child is four years old.

MAKE-UP TIME

The father seeks make-up time if the mother takes the child away for a holiday and he misses time with her. The maximum time that the father could lose is two days twice a year (four days).
I do not consider it appropriate at this time for the child to have two consecutive days with her father and there is no other way in which make-up time could occur since the father will see her every Sunday.
There will be no order for make-up time.

COMMENCMENT OF OVERNIGHT TIME

The mother opposes any order for the child to have overnight time with the father.
The father seeks an order that overnight time commence when the child is seven years old.
Dr G did not support the father’s application.
The obligation of the Court is to make orders which are in the child’s best interests. The child has never had unsupervised time with her father. She has never spent more than three hours with him and the supervisor. There were concerns about the father’s behaviour towards the mother before the orders for supervision were made and they had personal contact. There are concerns about the father’s parenting skills. There are concerns about the father’s insight into his own behaviour and the effect of that behaviour on the mother. There are concerns about the way in which the father might behave as the child grows up and becomes less compliant.
It is not possible to predict whether the child will be ready for overnight time with the father in four years’ time or whether overnight time will be appropriate.
It is therefore not possible to say with any certainty that the commencement of overnight time as the father’s seeks will be in the child’s best interests.
I am conscious of the provisions of s 60CC(3)(l) but the requirement to make an order which is in the child’s best interests is overarching.
No order will be made for the commencement of overnight time.

MEDIATION

The ICL proposes an order which requires the parents to attend mediation if they cannot agree on the commencement of overnight time when the child is seven years old.
The mother opposes that application. Her reasons are not clear.
If the parents cannot agree on overnight time starting, then the father will have to bring an application before the Court. The provisions of s 60I of the Act would require them to attend on a dispute resolution practitioner before the proceedings could be commenced.
The ICL’s application does no more than provide for a time when that process is to commence.
Orders will be made in accordance with the ICL’s proposal.

COSTS OF THE ICL

The ICL made an application for costs but made no submissions in support of that application.
Neither of the parents has significant income or assets.
There will be no order for costs.

I certify that the preceding two hundred and fifty-four (254) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 15 March 2017.

Associate:

Date: 15/03/2017