Bulmer and Bell (No 2)

FAMILY COURT OF AUSTRALIA

BULMER & BELL (NO 2)

[2015] FamCA 697

FAMILY LAW – CHILDREN – Best interests of the children – Whether there is a benefit of a meaningful relationship with both parents – Where there are issues violence – Whether the parents should have equal shared parental responsibility or whether the mother should have sole parental responsibility – Where there is an unacceptable risk of harm to the child due to violence, drug use and criminal conduct – Where the father has failed to take any steps to enrol in the Keeping Contact program – Where the father has cancelled and withdrawn from contact events and withdrawn from these proceedings

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2), 60CC(3), 61C, 61C(1), 61DA, 61DA(2), 61DA(4), 65DAC
Evidence Act 1995 (Cth) s 140(2)(a), 140(2)(b), 140(2)(c)

Bulmer & Bell(No 2) [2014] FamCA 1063
Johnson and Page [2007] FamCA 1235 at [64]-[82]
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
Mazorski & Albright (2007) Fam LR 518
G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286

APPLICANT:

Mr Bulmer

RESPONDENT:

Ms Bell

INDEPENDENT CHILDREN’S LAWYER:

Stephen Bell

FILE NUMBER:

PAC

5716

2012

DATE DELIVERED:

21 August 2015

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

29 September 2014 to 2 October 2014 and 12 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Luke Fermanis (2014 only)

SOLICITOR FOR THE APPLICANT:

Ms Khalil of Claremont Legal (2014)

COUNSEL FOR THE RESPONDENT:

Ms Friedlander

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Snelling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Stephen Bell of Stephen W Bell & Associates

Orders

That the mother have sole parental responsibility for L born … 2008 (“the child”).
That the child live with the mother.
That the mother be permitted to take the child for travel outside the Commonwealth of Australia and give written permission for the child to otherwise travel outside Australia.
That in the event that the child has been placed on any Airport Watch List, that it is requested that the Australian Federal Police give effect to this order, by removing the name of the child previously known as L born … 2008 from any Watch List until further order.
That in the event that there has been any objection made to the mother applying for a passport for the child, that the Department of Foreign Affairs is requested to give effect to this order, by allowing the mother to apply for a passport for the child previously known as L born … 2008 and by removing any endorsements on the passport of the child previously known as L born … 2008.
That henceforth the child previously known as L born … 2008 be known as L B Bulmer Bell.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bulmer & Bell (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5716/2012

Mr Bulmer

Applicant

And

Ms Bell

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns the long term parenting arrangements for the child L, a seven-year-old little girl. The relationship between the child’s parents ended when she was two and a half and they have been unable to reach agreement about her future parenting.
The child’s father, Mr Bulmer (“the father”) commenced these proceedings in the Federal Magistrates Court, as it was then known, in December 2012. He has at all times agreed that it is in the child’s best interests to live with her mother, but sought orders that he share parental responsibility for the child with the mother and that he spend time with her. The father was for some time diligent in pursuing his application to be involved in the child’s life.
L’s mother, Ms Bell has been at all times persistent in promoting her position that it is not in the child’s interest for her to have a relationship with her father, unless and until he addresses the shortcomings that the mother perceives he has as a parent, which she contends he has not done to date.
The proceedings before me were initially heard in October 2014. The father’s case was put before the court and he, his partner and his mother who had filed affidavits, were cross-examined. The mother’s case commenced and she and her parents, who had filed affidavits, were cross-examined.
The proceedings were then adjourned with the consent of the parties for the purposes of family therapy to assist the child in rebuilding her relationship with her father and dealing with her fears and anxieties associated with spending time with her father. During the adjournment the mother was also ordered to be assessed by a psychiatrist. On 2 October 2014 I published reasons for the interim order relating to the mother’s psychiatric assessment and those reasons are to be read with this judgement.
The hearing was adjourned until November 2014 so that an assessment could be made of the progress of the situation under the interim orders and then the matter was to be further adjourned for further hearing, if necessary.
During the adjourned period the mother was assessed by a psychiatrist and no particular matters of concern were identified.
Unfortunately for the child the father disengaged from the process which had been instituted to support her time with him. The father only spent time with the child on one occasion during the adjournment. The father has also now disengaged from the court proceedings.
The resumed hearing in June 2015 was concluded on an undefended basis. The mother proposed orders that she have sole parental responsibility for the child, that the child live with her and other associated orders, including that she be permitted to change the child’s name to exclude the name of her father. The mother proposed that there be no orders for the father to spend time with the child. The Independent Children’s Lawyer (ICL) supports the mother’s proposed orders, with the exception of the order relating to the child’s change of name. The ICL proposed an alternate form of name being Bulmer Bell (that is without a hyphen), to which the mother consented.
The question for me to determine is whether the orders proposed by each of the parties or some other orders are in the child’s best interests.

Background

The applicant father is 28 and was raised in a family in which drug use and some anti-social behaviour was at least tolerated. The father and his brothers had been violent towards each other when they were younger and the father and other family members had also engaged in some criminal conduct. The father had a long history of cannabis abuse which commenced in his teen years. His mother, the paternal grandmother, used cannabis herself when younger and was aware that the father and her adult other children engaged in extensive cannabis use and anti-social behaviour but was unable to control them.
The respondent mother is 27 and is the only child of older, traditional Southern European parents. She had a conservative Catholic upbringing.
The parents were in a relationship for a number of years from around 2006, although the duration and nature of it is very much in dispute.
During the relationship the father used cannabis daily and spent around $150 per week on this substance.
The father lived at premises he leased from the maternal grandmother from around late 2006 though there is a dispute as to whether the mother lived there with him. The mother at least stayed there overnight from time to time.
L was born in 2008 and the mother was the child’s principal carer. Although the father played some role in the child’s care as an infant the mother did not ever allow the father to be alone with the child.
The parents separated in November or December 2010. The father moved out of the home he leased from the maternal grandmother in January 2011 and the child remained in the care of her mother.
Following separation, the father did not see the child for a couple of weeks. After he moved into his parents’ home he spent time with her for a few hours each week in the presence of the paternal grandmother and the mother for about one month. After that the mother only allowed the father to see the child on a couple of occasions in the next three months.
In September 2011 the child spent time with the father and some members of his extended family on Father’s Day. The paternal grandmother and mother were present throughout the day.
The parents then agreed at a family dispute resolution conference that the father could spend one hour each alternate Sunday at a contact centre with the child.
In December 2011, the father commenced a relationship with his current partner Ms C.
The father commenced spending supervised time with the child in May 2012. Records from the D Town Children’s contact centre during this period indicate that their time together generally went very well.
In September 2012, the mother obtained a referral for the child to attend upon a child psychologist and these sessions occurred on six occasions between September and December 2012. The psychologist was of the opinion that the child had lost confidence in visiting her father and thought that a sense of safety and trust needed to be established for future visits to be enjoyable for the child.
In the early months of 2013, the mother began making complaints about the supervision of staff at the contact centre and ultimately the mother lost confidence in the staff at the centre over incidents which did not relate to the father’s conduct.
In May 2013, the mother withdrew the child from the contact centre.
From January to July 2013 the child had a further six sessions with the psychologist and by the last session in July 2013 the child told the psychologist that she did not miss her father since visits to him had ended and that her three wishes were “for [Mr Bulmer]to go away, that she hated him and we don’t want to see him again.”
In July 2013 orders were made for the child to spend time with the father at the contact centre provided he tested negative with respect to cannabis use in three consecutive urinalysis tests.
One of the father’s urinalysis tests in this period did not comply correctly with the chain of custody requirements and another in October 2013 was positive for cannabis. The father says that this was a lapse on a single occasion on Father’s Day 2013 and that he has not smoked cannabis since that occasion.
On 28 October 2013, there was an incident at the mother’s house in which she describes that her car was “firebombed”. The mother believes that the father and his current partner were responsible for this incident. She made complaints to police and they investigated the matter. The father denies any involvement in this incident and has not been charged. The mother however pursued a private application for an Apprehended Domestic Violence Order (ADVO) for the protection of herself.
The father did not spend time with the child in 2013 after the mother unilaterally ceased the visits in May.
In February 2014 the family consultant assessed the family for the purposes of a Family Report. The mother gave a history of severe family violence perpetrated by the father and the child’s fear of the father. The family consultant’s assessment and particularly his observation of the interactions between the child and the father indicated to the family consultant that the child was attached to her father and was not afraid of him. The Family Report was released on 5 March 2014.
It appears that there were two contact events between the child and her father in March 2014 at a different contact centre to the one previously utilised by the family. The records show that the child was reluctant and did not engage well with her father and repeatedly told him to go away.
On 25 March 2014 the father consented to the ADVO sought by the mother without making any admissions concerning the events outlined in the application. A final order was made for two years and will expire on 25 March 2016. The order prohibits the father from approaching or contacting the mother by any means except through his legal representative or as agreed in writing or permitted by an order or directions under the Family Law Act 1975 (Cth) (‘the Act’).
In April 2014, the father’s partner Ms C gave birth to a girl named E, who is the child’s half- sister. Ms C also has a nine-year-old son from a previous relationship who lives with her and the father.
On 17 April 2014 orders were made for the supervised time with the father to recommence at the contact centre.
In May 2014 the child recommenced spending time with her father each alternate weekend for two hours at the centre and at the date of the hearing there had been seven such events. The contact centre records indicate that initially the time together was observed to go well, but that from around the beginning of July 2014 the child started to express negative thoughts about her father and failed to interact with him during the contact events. The last event in August was curtailed after one hour due to the child becoming upset.
There was an incident on 20 July 2014 in which the mother alleges that the father breached the ADVO. The father denies that anything untoward happened on this occasion. The mother reported the alleged breach to police and it was investigated but the father was not charged.
There was a further incident on 16 August 2014 when the mother alleges that the father breached the AVO at the conclusion of his time with the child at the contact centre. The breach was reported to police who appear to have carried out an investigation but the father, who denies any wrongdoing was not charged.

The October 2014 hearing

The father

The father took the position that he wished to maintain his relationship with the child through orders that he spend time with her. He also proposed that the parents equally share parental responsibility for the child and that for a period of one month the child spend time with him each Saturday between 9am and 5pm and that this gradually increase over time. Ultimately under his proposal he would spend time with the child each alternate weekend from the end of school on Friday to the commencement of school on Monday, half the school holidays and special occasions. He also sought an Airport Watchlist Order.
The father’s general position was that the relationship between he and the mother was volatile and that the mother was domineering and controlling. He says that the pregnancy with the child was exciting for them as a couple. He says that he was involved in the care of the child prior to separation but seems to accept that the mother carried out the majority of that care. He denies any physical violence in the relationship but says that the mother was verbally abusive towards him.
It was essentially his case that when the parties separated the mother told him that she would not let the child see him or his family and that all times since separation the mother has made it difficult for him to have a relationship with the child. He says that the mother was uncooperative at first, insisted on supervision when it was not required and unilaterally withdrew the child from the supervised visits at the contact centre after they had gone well between May 2012 and May 2013.
The father says that he had smoked cannabis since his teenage years and that he smoked it daily at around the time of separation but had a period of several months abstinence leading up the hearing. He says the positive urinalysis test in October 2013 related to a single lapse on that date. The father seemed frustrated that this single lapse as he described it, and the fact that one of his other urine tests did not comply with the chain of custody requirements which was not his fault, meant that he did not spend any time with the child for nine months.
It was the father’s position, as I understand it, that at the time of the October 2014 hearing he had matured and was more stable in his personal life. He says he was not using drugs, had secure permanent accommodation with his new family and had obtained full-time employment.
The father also took the position that the obtaining of an ADVO in October 2013 and subsequent allegations of breach are all part of the mother’s efforts at discrediting him for the purposes of denying the child a relationship with him. He says that he only agreed to the ADVO because he could not afford to defend it and says that he consented to the order on an “without admission” basis and maintains his innocence in relation to that alleged incident.
The father says that the seven sessions of time with the child at the contact centre between May and August 2014 did not go well as the child only occasionally engaged positively with him and generally was reluctant and indicated that she did not want to spend time with and interact with him. He says that this is in stark contrast with her engagement over the 12 months up until May 2013. It is his position that the mother is responsible for the child’s charge of heart and attitude towards him.
At the hearing the father expressed a desire to rebuild his relationship with the child but accepted that it would take some time and patience. At the time of the hearing the father was in a relationship with his partner Ms C and they were engaged to be married. The father and his partner lived in a three bedroom townhouse owned by Ms C’s parents and intended to remain at those premises in the future. The father was employed on a permanent full-time basis but did not pay child support for the child and had not paid it at any time in the past. The father said that he and the mother did not communicate at all and claimed that this was the reason he did not financially support the child but said that he had an intention to assume full financial responsibility in the future once he was spending time with the child. He proposed that the time should resume during the day on an unsupervised basis and then move to include overnights in accordance with his proposed orders.
Under cross-examination the father agreed that he was not on good terms with the mother and no communication between them was possible at least until the expiry of the ADVO. He agreed that he had not thought about communication with the mother or about how they could achieve joint decision making but simply said that he hoped they would be on speaking terms and have a discussion about important issues.

The mother

At the October hearing the mother was seeking orders that she have sole parental responsibility for the child, that the child live with her and that there be no orders for the child to spend time with the father. She did however seek orders that she give all consents necessary for the child’s school to forward to the father school reports, weekly notices, correspondence and applications for school photographs. The mother also sought an order that the father do all things necessary to cause a passport to issue to the child, that she be permitted to take the child overseas for holidays and that the child’s surname be changed from “Bulmer - Bell” to “Bell”.
The mother’s position generally was that there was an unacceptable risk of harm to the child should she spend any time with her father due to the father’s violent conduct and associated with the child being exposed to drug use and criminal activities by the father and his family.
It was the mother’ case that a risk of harm to the child continues to arise due to the father’s cannabis use as the father had not produced three negative urinalysis results.
It was also the mother’s case that while the proceedings have been ongoing the father has continued to perpetrate violence against her. The mother relied upon on the ADVO made by consent on 25 March 2014 and maintains that there have been breaches of this ADVO since that date. She contended that these breaches form part of the pattern of ongoing coercive and controlling violence and threats perpetrated by the father towards her and the child. On this basis the mother contended that it is not in the child’s best interests to spend time with or communicate with the father.

At the time of the October proceedings the mother and the child continued to live with the mother’s elderly parents in their home. The mother had been in a relationship with Mr F for some time but they did not live together. The mother was a student studying town planning at University.
The mother gave some evidence in the course of cross-examination to the effect that she could not accept any court orders that required the child to spend time with the father and would not cope if such orders were made.

The adjournment

At the initial hearing in October 2014, following the completion of virtually all of the mother’s case (only the mother’s partner was yet to give evidence) the ICL had not formulated a position in relation to final orders, but made application for the proceedings to be adjourned although they were incomplete. The ICL sought a psychiatric assessment of the mother and that the child be provided with some therapeutic services for the purposes of assisting her in managing the time that had been ordered for her to spend with her father. The orders for time had not ever been suspended and it was the ICL’s position that this time should recommence. The order for therapeutic services and for a recommencement of the child’s time with her father in a supervised setting was consented to by the mother.
As noted, the order for psychiatric assessment for the mother was opposed and a judgment in relation to that order was delivered on 2 October 2014.[1] Although I do not repeat the reasons for that decision here it suffices to say that I was of the view that the mother was displaying high levels of anxiety surrounding the issue of the child having a relationship with her father, and felt that a psychiatric assessment was required. Also, although the mother seemed to contend that the father’s violence had caused her such high levels of anxiety that her parenting would be impaired if the child were to spend unsupervised time with him, there was no expert evidence in relation to this issue.
[1]Bulmer & Bell(No 2) [2014] FamCA 1063
It appeared at the completion of the mother’s evidence in October 2014 that she had closed her mind to the possibility of allowing and facilitating the child having a meaningful relationship with her father and there was a concern that if steps were not immediately taken for that relationship to be rekindled that it may be too late to await the final judgment. The mother ultimately did consent to therapy being provided to the child to assist her with the relationship with her father and for some limited time with the father to occur in a supervised setting similar to that provided for in the then current interim orders which had not been suspended.

Events since the October 2014 hearing

Although at the completion of the initial hearing in October 2014 the mother remained of the view that she did not feel that it was safe for the child to spend time with her father, she did consent to interim orders. These orders provided for the parents to enrol in a post separation parenting program and participate in therapy as recommended by that program. the child was to be provided with therapeutic support from an agency as determined by the ICL to assist her in rebuilding a relationship with her father and dealing with her fears and anxieties associated with spending time with him. All parties also consented to the child spending time with her father during the adjournment and that was to occur unless the therapist appointed to assist the child was of the view that it was not appropriate, in which case the matter was to be relisted for further consideration.
So far as the therapeutic support for the child was concerned, the ICL selected the Anchor program and advised each of the parents to take the necessary steps to have the child enrolled. The mother took steps to enrol the child in the program, initial appointments were made for the child to receive counselling through the program and at the time of the resumed hearing the child had attended one appointment and two further appointments had been scheduled. The father has not made any contact with the Anchor program.
Following the adjournment the mother participated in the initial process of the Keeping Contact program. At a court event on 11 December 2014 which both parties attended, it was apparent that the father had taken no steps to enrol himself in the Keeping Contact program. A notation was made to the effect that it was expected that the parties will have enrolled in that program by 9 March 2015. It was noted also that it was expected that the child would have commenced participating in the Anchor program and that the father would have complied with the ICL’s request on at a least one occasion to provide a chain-of-custody urine sample with respect to his drug use by the adjourned date.
L’s time with her father at the children’s contact centre was scheduled to recommence in December 2014. The father only attended one of five scheduled visits, on 10 January 2015 and on that occasion the session was terminated early. The father cancelled the balance of the appointments. The contact service then terminated the contact visits due to the number of cancellations.
The father did not maintain contact with the ICL as required under the interim orders and although directed to undergo urinalysis on four occasions between December and April 2015 the ICL received no response from the father and accordingly this testing did not occur.

The resumed hearing 2015

The father’s legal representative ceased to act on his behalf at the end of January 2015. The father did not attend further Court events in relation to the proceedings, including for final submissions.
At the resumed hearing the mother sought orders in slightly different terms than those which she was seeking in the first stage of the proceedings. She continued to seek orders that she have sole parental responsibility for the child, that the child live with her, that there be no orders for the child to spend time with the father and orders in relation to the child’s surname and permission to travel overseas. However, the mother was no longer seeking an order that she give consent for information from the school to be provided to the father. She was also seeking orders removing the child’s name from the Airport Watch List and allowing her alone to apply for a passport for the child.
The mother gave oral evidence to the effect that she had served the father with a sealed copy of her latest Response and I was satisfied that the father was aware of the orders she was seeking and the date of the final hearing.
At the resumed hearing the only additional evidence received was a report from the psychiatrist who had assessed the mother during the adjournment. She was also briefly cross-examined by counsel for the ICL in relation to her updated affidavit.

The matters in dispute

Although the resumed hearing was conducted on an undefended basis there had been extensive conflicting evidence given in the first part of the proceedings concerning many factual matters in dispute. The affidavits filed by the parents and on their behalf contain details of numerous incidents over many years and concerning circumstances relating to the extended families which in my view are only of marginal relevance to the competing parenting applications before me. It also appears to me that many of those matters are not capable of being resolved. For that reason those matters are not dealt with in this judgment.
However, a significant matter of dispute which is central to the orders sought by the mother and is of great significance in relation to the child’s best interests is the matter of family violence.

Family violence

It is the mother’s case that the father was the perpetrator of family violence throughout the relationship and since separation. In her trial affidavit she outlines the history of the relationship and instances of significant violence and abuse that she says were perpetrated by the father which have caused the child to be afraid of him and contends that this fear was current at the time of the proceedings.
As a general non-specific complaint, the mother says that under the effect of drugs “[the father] would frequently become very physically violent and on a number of occasions smacked [her] across the face with an open hand so hard that it caused bruising to [her] face.” She says she did not report this violence to the police as she feared further violence. She provides no further detail or context for this general complaint.
The mother also alleges that the father was verbally abusive throughout the entire relationship and after separation.
The mother also sets out a number of specific allegations of serious abuse. First, she says that the child was conceived as a result of the father sexually assaulting her. In her affidavit she gives the following account of this incident:
In August 2007, [Mr Bulmer] left me in a dangerous situation where I was almost raped by a couple of his friends. We were celebrating my 20th birthday at [Mr Bulmer’s] place … I was cornered into a room and a couple of people tried to assault me. [Mr Bulmer] came into the room later and then [Mr Bulmer] sexually assaulted me.
The mother gives no other details of this incident but went on to say that she did not talk to the father or see him “much” after this event but telephoned him in October 2007 when she became she became aware she was pregnant.
The mother says that the father broke up with her towards the end of November 2007 but that on 1 January 2008 he assaulted her as follows:
…He grabbed me by the throat and said to me in words to the effect of “you’ve been ignoring me”. [The paternal grandmother] woke up and, with great effort got him away from me.
The mother said that she did not call police as the paternal grandmother said that this would result in her being responsible for putting her unborn child’s father in prison.
The mother says that on an unspecified occasion in 2010 the father “grabbed [her] by the throat and threatened [her]”. She said that she did not report this incident to police due to fear from threats made by the father and his mother. No further details or context are given in relation to this event.
The mother relates another incident in November 2010 when she went to the home the father was renting from her mother and while she was mowing the lawn the father and other people were inside smoking cannabis. The mother said that when she went indoors the father began abusing her and spat on her and tipped over a number of garbage bins and pushed and shoved her. The mother said that when she was speaking to the paternal grandmother on a telephone the father grabbed the phone and threw it and she ran and locked herself in the car until her father came and helped her. While she was sitting locked in the car, she alleges that the father yelled threats and abuse at her and waved a hunting knife around.
The mother relates a further incident which she said occurred “towards the end of 2010” when she says she was assaulted in the course of an argument about her safety concerns for the child as the father was drug affected. She says the father pushed her against a dryer and as she tried to escape “he pulled the side of the pool table off and used it as a club to then hit [her]”. She says her fingers were cut by the staples from the pool table and annexes to her affidavit photos of the damaged table and her bleeding hand.
The mother also alleges that the father would humiliate her by making sexualised remarks about her body in the presence of his friends for his amusement. She deposes to an incident in her affidavit at the end of December 2010 when she was helping the father find accommodation when she alleges he did not allow her to leave the home. She says that the following occurred:
[Mr Bulmer] forced himself on me and as I was trying to get away he overpowered me and said “shut up. Get used to it. This is how you will be treated by the dirty wog cunts” as well as commenting “how fucked are your tits at least your pussy is still tight”. I cried and told him to stop and I was extremely affected by this. When [Mr Bulmer] was done having sex on me he left and I cried and cried I had a shower and remember sitting in the shower for ages because I felt so sick and I actually recall vomiting.
The mother says in about January 2011(around the time the parties were separating and the child was two and a half) there was an incident at the father’s house when she believes that the father was drug affected and he suddenly starting smashing up a birdcage in front of the child. She said that the child started crying and said “don’t don’t” but he continued to smash the birdcage until it was flat. The mother seems to attach particular significance to this incident, and the child’s reported memories of it occurring as a basis for the child’s fears.
The mother was cross-examined about most of the more serious violent allegations but not all of them and remained adamant that those events had occurred.
In his affidavit the father says that although the relationship was acrimonious and he and the mother constantly argued “there were no issues of physical violence”.
Under cross-examination the father agreed that on occasions he did push the mother but said he did not hit her. He said that this did not often occur but if they were arguing and the mother was “up in [his] face yelling” he would push her away. The father conceded that he also verbally abused the mother “out of frustration”. The father denied all specific incidents of violence that the mother alleged in her affidavit and specifically denied raping her on two occasions. Some of the other serious specific allegations of violence such as slapping the mother in the face and grabbing her by the throat were not put to the father under cross-examination.
The paternal grandmother says while she was aware that the parents were verbally abusive towards one another, she did not ever witness physical abuse.
The maternal grandparents gave evidence of the mother reporting some of the incidents of physical abuse to them, and the maternal grandfather describes seeing bruises on the mother’s face and cuts on her hand.
As noted previously, it is the mother’s case that the father’s violence towards her continued after separation and up until the time of the October 2014 hearing and that as a result of this behaviour she and the child are fearful of him. In particular she alleges that there was an incident on 29 October 2013. In her affidavit the mother says that at around 1:30am on that day she went to her driveway as she heard a loud bang and saw a glass petrol bomb which had exploded. She says she saw a car of the same colour and model as the one used by the father drive past and heard the father yell out words to the effect of “warning you wog bitch”.
The father and his partner say that in the early hours of that morning they were at home in bed. At that stage the father says that he worked an early shift that started at 5am and had to wake at 3:50am to prepare for work (so he was asleep at the time of the alleged incident). The father also says that he was suspended from driving at the time and did not drive as he did not want to jeopardise his driver’s license. He also said that he did not want to jeopardise his application and the family law proceedings at the time, and therefore would not have behaved in this manner.
The father and his partner say that police contacted them and they denied any involvement in this incident. Although the father was not charged he subsequently attended court and agreed to an ADVO sought by the mother for her protection, without admitting the allegation.
The mother also alleges that the father intimidated her at a shopping centre on 20 July 2014. It appears that she suggests that the father deliberately attended the shopping centre on this date knowing she was likely to be there and claims that he glared at her and lurched forward which caused her to think that he was going to run at her.
The father maintains that he has not engaged in any conduct in breach of the ADVO. He says that on around 20 July he saw the mother, maternal grandmother and the child when he was at a shopping centre but did not stop or approach them. Instead he says he walked into a shop, purchased some items and waited until they had left the vicinity. The mother also reported this incident to police who investigated the matter. The father was not charged.
The mother also alleges that there was an incident outside the D Town Contact Centre on 16 August 2014. She says that on that date she collected the child at 3:00pm and when she stopped at traffic lights not far from the centre she saw the father alone in a vehicle, he looked straight at her and yelled loudly “you’re dead bitch”. She said that the father then accelerated away very fast and that she felt shaken and very scared. She says she noted that the clock on her dashboard said 3:05pm.
This alleged incident is also denied by the father. The father says that he was still at the contact centre until 3:15pm and specifically remained at the centre following his time with the child to avoid coming into contact with the mother in accordance with the rules of the centre. Records of the contact centre indicate that the father was at the contact centre until 3:15pm on this day.
The allegations of violence made by the mother particularly during the currency of the relationship are very serious. It was the mother’s case at the completion of the October proceedings that the child had been exposed to the father’s violence and remained fearful of the father because of it. The mother also contended that as there was evidence which indicated that the father had continued to behave in an intimidating manner since separation and up until the time of the hearing he is likely to continue to behave in this manner. She was and remained concerned about the child spending time, particularly overnight or unsupervised time with the father who she contended will continue to behave violently. She maintained that the father’s violence and her fear of it also affected her capacity in the care of the child.
The issue for the Court to determine is whether there is an unacceptable risk of harm to the child should the father’s proposed orders be made. Alternatively, the question is whether there is such a risk, and if so whether it is of such magnitude to justify the Court making no orders that the child spend time with her father. In my view, having regard to the authorities concerning the inter-relationship between being satisfied that the alleged harmful acts occurred and finding of unacceptable risk[2], it is appropriate to approach the matter first by determining whether I am satisfied that the violent conduct alleged by the mother did occur. The applicable standard of proof is the balance of probabilities, having regard to the matters set out in s 140(2)(a)-(c) of the Evidence Act 1995 (Cth).
[2]see Johnson and Page [2007] FamCA 1235 at [64]-[82].
I am not satisfied to the requisite standard that the father committed the particular acts of assault set out in the mother’s affidavit such as the alleged sexual assaults in August 2007 and December 2010, grabbing the mother by the throat in January 2008 or slapping her on the face on unspecified occasions. However, I am satisfied that father was violent to the mother on occasions throughout the relationship prior to separation as even on his own version of events he at least pushed her and was verbally abusive to her.
The reasons that I am not satisfied about the specific serious incidents alleged by the mother are as follows.
First, records which in my view are likely to be reliable, made at the time of allegations of serious violence in my view are not consistent with the mother’s case. For example, the mother annexes to her affidavit medical records from an ante-natal visit in February 2008 when she was pregnant with the child. The notes record that the mother “states her main concern today is about boyfriend’s excessive cannabis use”. Under the heading “social” it is recorded that the mother has been in a relationship with the father for the last two years, that it was an unplanned pregnancy and that they are now engaged. The notes also record “long discussion about domestic violence à started verbal and emotional abuse since beginning of relationship with [Mr Bulmer]”. It is to be remembered that at this stage, according to the mother she had been sexually assaulted by the father resulting in the child’s conception and she had been the victim of an assault in which the father grabbed her by the throat five weeks previously. Although a failure to report a serious sexual or physical assault is not necessarily evidence that it did not occur, this is not a matter where the mother asserted there was no violence but reported only that the father was verbally and emotionally abusive. It seems unusual at least that she would fail to report far more serious and recent abuse.

The mother also did not report any of the serious allegations of assault to police at the time they allegedly occurred and gives the reason that she feared further violence. While the failure to report such matters to police is not evidence that the incidents did not occur, the mother in this case is not hesitant to report far less serious matters to police and she has done so on numerous occasions, particularly since separation. She is also well aware of her own capacity to seek and obtain an ADVO privately and had done so in circumstances where the police had investigated her complaints and not sought an ADVO on her behalf.
Further, according to the mother’s affidavit she first made a complaint to police in May 2013, over three years after separation. The mother says “I made this statement (to police) because I was fearful, based on past incidents that [Mr Bulmer] would become violent and aggressive towards my family and I once he read my family law affidavit.” This would suggest that there is a connection between the making of a complaint and these proceedings. Further, there are a number of inconsistencies between this complaint and the mother’s evidence. In that statement to police the mother did not report a number of the serious specific allegations of violence that she now alleges. For example, she did not report the alleged sexual assault in August 2007, the incident in 2010 when the father allegedly grabbed her by the throat, the alleged sexual in December 2010 or the incident in January 2011 when the father allegedly smashed a birdcage in the presence of the child. The mother also did not include the general serious complaint that the father had on a number of occasions smacked her across the face with an open hand so hard it caused bruising.
Some of the specific incidents related in the affidavit are in the mother’s statement to police of May 2013 but the details differ. For example, the only description of the January 2008 assault was “he assaulted me”, whereas in her affidavit the mother says that the father grabbed her by the throat and the paternal grandmother was woken up and had to intervene to stop the assault.
The specific assaults referred to in the mother’s police statement are also those which are at the lower degree of seriousness of the violence alleged in these proceedings. For example, the incident in which the father is said to have pushed the mother into a dryer and hit her with a piece of wood from the pool table is contained in the mother’s police statement. The photographs in relation to this incident show superficial scratches to the mother’s hand and in my view are more consistent with a relatively minor incident.
Without in any sense minimising the significance of any level of family violence, in my view the mother has exaggerated some of the incidents and this has increased in her retelling them over the years. In the last mentioned incident for example, the mother’s injuries in the photographs do not seem consistent with the description contained in her affidavit that the father used a piece of wood from a pool table “as a club” to hit her. The description in the police statement of the incident includes that the child who was less than two years old was yelling “daddy daddy don’t kill mummy”. This in my view is simply unbelievable.
The police statement of May 2013 also includes a particularly serious incident of violence perpetrated against the child herself which is not included in the mother’s affidavit. In the statement the mother relates an incident in 2009-2010 (when it appears the child must have been around 18 months old) in the course of a heated verbal argument in which the father allegedly threatened to kill the mother and the mother says “the father finally gave in and threw the child at [her]”. In my view, it is simply inconceivable that the mother who is particularly protective of her child did not report this incident to any authority if it occurred nor does she give an account of it in her affidavit.
So far as the first reporting of the father’s violence to the police is concerned, it is also to be remembered that this occurred shortly after the mother had unilaterally withdrawn the child from the contact centre, made complaints about the contact centre staff and was taking the child to a psychologist in relation to her visits with her father. It is also to be remembered that the records of the contact centre for the period commencing twelve months earlier indicated that the time spent between the child and her father generally went very well.
The next incident of violence that the mother alleges following her complaint to police in May 2013 is the alleged “firebombing” incident in October 2013. As indicated, the mother made complaints to the police concerning this event which were investigated, but the father was not charged.
The police records in relation to this incident reveal some inconsistencies with the mother’s version in her affidavit. For example, the words that the mother alleges were yelled by the father and the fact that she recognised him by his voice as present at the incident is not contained in the police record. It is noted that while the mother’s partner told police he believed the father could be responsible he had “no evidence to support this claim”.
I also note that according to police records when the police attended the mother’s home on the evening of the incident she and her partner “reiterated that at this stage that they will not provide statements”. The police records also record that the mother and her partner on the second occasion provided a different number plate for the vehicle driven by the offender, than that which they had provided when police were first called. During this police visit the mother’s partner said he saw a large male figure get out of the vehicle and yell out “that’s what you get bitch” or something similar. The mother’s version in her affidavit is that different words were spoken by the father while he was driving. The mother does not provide the number plate details of the car driven by the offender in her affidavit even though this information was provided to police.
The mother then pursued a private ADVO application against the father. In her statement in support of the application the mother alleges that the father was extremely violent to her during the relationship. In that statement under the heading “history of violence” the mother does not refer to the alleged sexual assault which resulted in her pregnancy with the child. She does refer to the alleged assault in January 2008 but the description of the incident is quite different to the description in her affidavit. She also relates some incidents which were in her previous statements to police but which are not in her affidavit and some of the incidents which are contained in her affidavit including the allegation of sexual assault in December 2010.
In my view, the mother’s description of the “firebombing” incident of 29 October 2013 contained in her ADVO application shows elements of significant exaggeration. She says of that incident:
At approximately 1:30am, I heard a loud crash outside and went out to investigate. I was confronted by broken glass and flames everywhere. I was in shock and I stood on glass while I was battling to try to extinguish the flames.
She also says that she very clearly recognised Mr Bulmer’s voice and that he “even ran a red light in making his escape”. She described herself as “living in constant fear” of the father and being “terrified for herself and her family”. This description is significantly more serious than that in her affidavit when she simply says:
When I went outside I saw that something was on fire on the driveway. I walked over to it and it looked like a glass petrol bomb that had exploded.
In my view the level of fear and terror the mother claims she felt is inconsistent with not providing a statement to police when they attended her home following the incident.
Police records of the incident also indicate reports of a far less serious incident. The records say that the mother’s partner when awoken by the sound of smashing glass “looked out the window [and] could see a small fire at the end of the driver (sic) way… and a medium four door white sedan driving past. He used a blanket to extinguish the fire, quickly realising that unknown persons had caused minor burn damage to the driveway at the location.”
The timing of the application for ADVO and allegations of breach are also in my view significant. These proceedings initially were listed for a hearing in the Federal Circuit Court to commence on 19 March 2014 but the hearing did not proceed on that date. Ultimately the final order ADVO was consented to by the father on 25 March 2014.
It appears that as a result of the family consultant’s assessment and observation between the child and her father contained in the family report which was released at the end of March, in April 2014 orders were made for the supervised time with the father recommence again at the contact centre. In May 2014 when the child recommenced spending time with her father at the contact centre the records indicate that the time together was observed to go well.
In July 2014, the mother alleged that the father breached the ADVO and the matter was reported by the mother to police and investigated but the father was not charged. At this time the child is recorded as failing to engage with the father during their time together.
The mother alleged a further incident on 16 August 2014 occurred at 3:05pm after she collected the child from time with the father. As previously noted, the father’s version is supported by the records of the contact centre. In my view, it is significant that this incident is said to have occurred at around the same time the child last spent time with the father.
In my view, an adverse inference concerning the mother’s credit can be drawn from the pattern of her reports of allegations of violence. The complaints only commenced in May 2013 years after the alleged incidents, when the child’s time with her father had been going well but when the mother had withdrawn her from the contact centre. Prior to this time the mother had reported verbal and emotional abuse only at the time serious incidents of physical abuse were said to have occurred. The inconsistencies as to details in the various versions, the increasing tendency as the matter progressed to complain to police and the mother’s own demonstrated capacity to seek protection are in my view inconsistent with the serious allegations of violence she alleges and her reasons for failing to report it at the time.
However, in light of the father’s admissions about his own verbal abuse, and admissions of physically abusing the mother, which are consistent with the less serious assaults she alleges, I am satisfied that the father was the perpetrator of family violence against the mother. I am satisfied that he pushed and shoved the mother and verbally abused her on a number of occasions throughout the relationship.
There is also a great deal of evidence that the father’s extended family accepted violence and aggressive behaviour as the norm within their family. Violent language is apparently used by the father and other family members in Facebook posts annexed to the mother’s affidavit. She also annexes a number of photographs of family members wielding knives (even apparently in jest) and the father and paternal grandmother both agreed under cross-examination that the father and his brothers were engaged in physical fights between themselves and other associates from time to time.
While, for the reasons given, I am of the view that the mother exaggerated the level of violence perpetrated by the father, I am satisfied that she had a genuine fears about the child being exposed to many aspects of the prevailing culture in the father’s home including violence and aggression.
However, on the basis of the evidence before me I cannot be satisfied that the father has been physically aggressive to the mother since separation or that he generally conducts himself in a violent manner in partner relationships. The father’s partner said that she has not experienced the father to be violent or aggressive. Though she conceded that they may argue from time to time she said she has never had cause to fear for her own safety or that of her children. The father’s criminal record has no entries for matters of violence, nor is evidence of there having been any other ADVOs issued against him other than the one he consented to in March 2014. I am also not satisfied that he committed any act of family violence associated with the making of that order.

The Law & Discussion

The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in section 60B, form the framework for the part of the Act dealing with parenting.
The objects are to ensure that the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
According to section 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

Primary considerations

The primary considerations (under s 60CC(2)) are:-
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
As these proceedings commenced after 7 June 2012 greater weight is to be given to subparagraph (b), – the need to protect the child from harm of a particular type.
The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[3] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[4] and has also agreed with the reasoning of Bennett J in G & C[5]. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
[3] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[4] (2007) Fam LR 518
[5] [2006] FamCA 994
Bennett J discussed the terminology in G & C (supra) and said “the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).”
The father’s proposed orders for time with the child would mean that the child would experience a meaningful relationship with him. The same cannot be said of the mother’s proposal as it includes that there be no order for time with the father.
The Full Court said in McCall & Clark (supra) at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
It is the mother’s case that there will be no positive benefit to the child by the Court making the orders sought by the father which would foster the child’s relationship with him as such a relationship would not be in the child’s best interests.
The history of the father’s conduct in the proceedings to date shows that he has had a mixed response towards the steps he needs to take to foster the child’s relationship with him. It is clear from the evidence that, regardless of the causes for it, the child has had considerable anxiety associated with spending time with her father. Since at least the first half of 2013, the child has expressed in clear terms that she did not want to see her father though it is interesting that she expressed this wish as “we don’t want to see him again”. The psychiatrist who examined the mother in November 2014 hypothesised “that there seemed to be a high likelihood that there is a powerful dependent relationship between [the mother] and her parents” and “there is possible family enmeshment between [the mother] and her parents and extended to the child”. The use of the word “we” with respect to her own wishes may evidence this enmeshment.
Although the family consultant was of the view that the child’s stated views were inconsistent with her presentation when he assessed the family in March 2014 and following this assessment the Court once again ordered that the child’s time with her father recommence, by around July 2014 she began expressing negative thoughts about her father and failed to interact with him during contact. The father very sensibly did not press contact in these circumstances.
However, the father was given another opportunity during the adjournment between October 2014 and June 2015 to spend time with the child and to participate in a process of therapy to assist the child to adjust to those contact events. The father’s failure to take any steps to enrol in the Keeping Contact program, his cancellation of the contact events and withdrawing from these proceedings lead to an inference that he accepts that there will be no positive benefit to the child from the Court making orders that will foster her relationship with him.
So far as the need to protect the child from physical or psychological harm of the type envisaged by s 60CC(2)(b) is concerned, there is no evidence that she has been neglected or abused by either the mother or the father. For the reasons given earlier I am of the view that the father did perpetrate family violence against the mother and it is likely that the child was exposed to that violence from time to time. I also find that an appropriate means of managing the psychological harm that may have been occasioned to the child as a result of exposure to violence perpetrated by her father was and is through supervision of at least some of the father’s time with the child. The family consultant had also recommended that the father undertake an anger management program, which in my view would provide an additional protection for the child. There is no evidence that the father has undertaken such program.

Although I am not satisfied that the father’s violence towards the mother continued after separation, and in particular throughout 2013 and 2014 as alleged by her, there is a risk that if the parties were to come into contact with each other the father may be at least verbally aggressive to the mother to which the child may be exposed. The father’s proposal that changeovers occur at school once weekend time commences would in my view provide an appropriate safeguard for the protection of the child. In my view the need to protect the child from harm from being exposed to family violence alone does not justify no time with the father. Making no such orders would have that protective effect, as it would leave the matter of the father’s time in the hands of the mother.

Additional considerations

Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

L’s views

L, who is seven years old, has expressed a clear view for some time that she does not wish to see her father. However, I attach little weight to her views having regard to her age and the observations of the family consultant that her views were inconsistent with her interactions with her father. Further, the child psychologist who provided therapy to the child in 2012 and 2013 expressed the opinion:
That [the child’s] lack of confidence in visiting her father seems to be dependent on her recall on her father’s past aggressive outbursts and her mother’s uncertain sense of safety for both her and [the child].
In my view, there are some concerns about whether the child has a genuine memory of the father’s outbursts given her age when those incidents were said to have occurred. The psychiatrist who assessed the mother only during the adjournment was informed by the mother of the child’s memories of the father’s violent conduct when she was about two years old. The psychiatrist said “it seems highly unlikely that a child at the age of two would remember, as children before the age of three don’t lay down long term memories”. Further, the mother’s uncertain sense of safety in the opinion of the child’s psychologist has some impact on the child’s own perception of safety. The psychiatrist who assessed the mother said “it is on balance most likely the distress that [the child] is expressing is in relation to [the mother’s] concerns.
It is also to be noted that in the last session with the psychologist in July 2013 the child expressed her wishes in terms that “we [emphasis added] don’t want to see him again” which suggests some maternal influence in the expression of her views.

Nature of child’s relationship with each parent and other significant persons (including grandparents or other relatives)

The only expert evidence concerning the child’s relationships is contained in the family report which was not tested by cross-examination. Nonetheless, I attach some significant weight to that report. The mother has clearly been the child’s primary carer all her life and understandably would be the child’s primary attachment figure. the child’s maternal grandparents who gave evidence in the proceedings also appear to have close and loving relationship with the child. Nothing is known of the relationship between the mother’s partner and the child.
Although at the time of the Family Report in March 2014 the family consultant expressed the opinion that the “father’s loving descriptions of the child seemed genuinely felt and he appeared eager to share a close relationship with her” and the family consultant’s observations were that the child showed no fear of him and that she was attached to him, much has changed since the date of that report. There are uncontradicted reports that the child has become distressed and uncomfortable and has avoided interacting with her father on a number of occasions from May to August 2014 and in January 2015, on the only occasion the child spent time with her father during the adjournment the visit was curtailed on the child’s request.
Currently the nature of the relationship between the child and the father is unknown and the father has recently disengaged from pursuing such a relationship.
L appears to have spent insufficient time with most members with the paternal family to have formed any relationship with them. She does appear to have a relationship with the paternal grandfather which has been facilitated by the mother.

Extent to which each of the parents has taken or failed to take the opportunity to participate in long-term decision making regarding the child and to spend time and/or communicate with the child

As the parent who has had sole parental responsibility for the child for most of her life, the mother has made all of the long-term decisions. To some extent it appears that the mother has successfully precluded the father from making such decisions, largely it would seem, as a result of her disapproval of the lifestyle that he and his extended family and associates were engaged in and her lack in confidence in his decision making.
The father initially took a number of steps to play a role in the child’s life, especially in attending time with her at a contact centre over a lengthy period. However, at a critical time in the proceedings, when they were adjourned to give the father the opportunity to spend time with the child while providing therapy to her, he failed to take up that opportunity and ultimately the contact centre withdrew its services.
There is no evidence concerning the father’s communication with the child.

Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child

The mother has been entirely responsible for maintaining the child since separation. Although the father expressed an intention to financially support the child during the October 2014 proceedings there is no evidence that he has ever done so and there is no adequate explanation for his failure to do so.

Likely effect of change in circumstances

The change in circumstances that would be brought about in the child’s life if the father’s proposal was implemented through orders would be significant for the child in light of the evidence of her behaviour for at least the last year. The father envisaged, as I understand it, a short period of day time contact only. He even appears to have contemplated that this time be supervised. However, he also proposes that reasonably soon this would move to overnight and weekend time. In my view, even if the basis of some of the child’s fears is unfounded, she appears genuinely reticent and concerned at the very least about even seeing her father let alone spending lengthy periods of time with him. It appears that the child has never met the father’s partner and the nature of her current relationship with her father currently is unknown.
The father appeared to recognised prior to the adjournment that it would take some time for the child’s relationship with him to rekindle and she would need therapeutic support. However, he failed to engage in that process. In these circumstances, imposing such a change in the child’s circumstances as envisaged in the father’s orders in my view could be seriously detrimental to her.
If the Court were to make the orders as proposed by the mother this would confirm the status quo.

Practical difficulty or significant expense involved in spending time with and communicating with the other parent

Given that the parents live so close to one another there is no practical difficulty or expense associated with the father’s proposed orders.

Capacity of each parent and any other person (including grandparent or other relative) to provide for the child’s needs including emotional and intellectual needs

The mother has demonstrated that she has great capacity to provide for the child’s needs. It appears that the child is very well cared for in a loving extended family.
Although the father’s capacity to provide for the child’s needs may have legitimately given rise for concern in the past, in October 2014 it appeared that he may have matured and settled, particularly in the context of his new relationship. It appeared to me that subject to one concern discussed below he had the capacity to meet at least the child’s physical and material needs.
A significant concern in relation to the father’s capacity is his longstanding cannabis use. This was clearly identified as an issue from at least July 2013 when orders for the father to spend time with the child at a contact centre provided that this time would not commence until he had tested negative in three consecutive urinalysis tests. As indicated he did not comply with that requirement but ultimately further orders were made for the child to spend time with him. Although the father says that he was not a drug user at the time of the October 2014 hearing there is no evidence to support this assertion. Given the extent of his admitted cannabis use and the mother’s allegations of his impaired capacity, particularly in relation to supervision of the child, the father must have known that compliance with urinalysis during the adjourned period was a significant issue. It is of concern that he failed to undergo any urinalysis testing as directed by during the period of the adjournment.

Maturity, sex, lifestyle and background (including culture and traditions) of the child and either parent

On her mother’s side, the child is of Southern European heritage. She enjoys the benefits of her culture and family traditions and will continue to do so under either of the suite of orders proposed by the parents.
As indicated, the father comes from a very different background and his lifestyle, at least in the past, has been characterised by drug use, anti-social behaviour and some offending. While these matters do not disentitle a parent taking a role in a child’s life, particularly having regard to the objects and principles of the Act, they are matters which give rise to some concerns which could have been, but ultimately were not, addressed by the father.

Attitude to the child and responsibilities of parenthood demonstrated by each parent

The mother has demonstrated that she is a responsible parent through her care of the child throughout her life.
While earlier in the proceedings the father appeared to have a genuine commitment to the child, this seems to have dissipated in recent years. In my view, it is particularly concerning that the father failed to take advantage of the opportunity provided to him during the adjourned period to spend time with the child while she was provided with therapeutic support in a supervised setting.
The father’s failure to enrol in the programs to assist him and the child in the adjourned period and his cancellation of four of the contact events without explanation reflect poorly on his attitude to the child and the responsibilities of parenthood.
Although in the October proceedings the father acknowledged that he had not provided any financial support for the child to date, he said he had an intention to do so and was then in full-time employment. However, there is no evidence that he has ever provided any financial support for the child.

Family violence relating to the child or a member of the child’s family

The issue of family violence is discussed earlier in these reasons. There is currently an ADVO for the protection of the mother which will expire in May 2016

Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child

In my view, it is likely that if orders are made as sought by the father that this will lead to further proceedings. The mother has made it clear from her evidence in the October proceedings and her actions to date that she is of the view that the father represents a danger to the child and it is not in the child’s interests to have contact with him. Her complaints about the contact centre staff, withdrawing the child from the contact centre and her oral evidence to the effect that she would not accept any such orders raise a risk that she may not cooperate with any regime for time with the father. In these circumstances there is a risk that contravention proceedings would be instituted in the future. However, this section does not require the Court to make an order that would be least likely to lead to the institution of further proceedings, but requires the Court to consider whether it would be preferable to make such an order.
So far as the mother’s proposed orders are concerned, it can be inferred from the father’s actions in the adjourned period and his lack of engagement in these proceedings since then, that he does not oppose the mother’s position of seeking no order in relation to the child’s time with him. For this reason, in my view, he is not likely to institute further proceedings if the orders sought by the mother are made.

Parental responsibility

Unless the Court makes an order changing the statutory conferral of joint parental responsibility, section 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
In Goode & Goode[6] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[6] (2006) FLC 93-286
Where the Court is to determine parental responsibility, the starting point is section 61DA. This section provides that 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. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
In circumstances where I have positively found that the father perpetrated family violence, the presumption of equal shared parental responsibility does not apply.
The parents have also demonstrated that there is no capacity for joint decision making between them. They have not communicated with each other for a number of years and there is currently an ADVO in place until May 2016 restraining the father from communicating with the mother. In advancing his proposal the father appeared in October 2014 not to have considered the practicalities of joint decision making. In light of his failure to engage in the proceedings since December 2014, I am of the view that it would not be in the child’s best interests for parental responsibility be shared.
In these circumstances the mother should hold sole parental responsibility.

Conclusion

It is a matter of great significance in my view that there was a window of opportunity for the child’s relationship with her father to be rekindled and developed from October 2014. At that stage, despite the mother’s contentions that the father had been violent towards her and that the child had been exposed to this violence and was fearful of him, the family consultant still felt that there was an attachment between the child and her father. The father expressed some commitment to the child, appeared to appreciate that supports were necessary for the child and also appeared to have settled and matured in his personal life. The mother also, at that stage, consented to the adjournment and for the supports for the child and even for the father’s supervised time to continue. However, the father’s failure to enrol in the programs that would assist him and the child, failures to undergo urinalysis as required, cancellation of time at the contact centre and withdrawal from these proceedings indicate that he has essentially lost interest in pursuing a relationship with his daughter.
Although I am satisfied the father was aware of the date of the final proceedings he did not appear or have a legal representative appear on his behalf. I infer that in these circumstances he has no objection to the orders proposed by the mother. For the foregoing reasons I am satisfied that the orders she proposes are in the child’s best interest.
The orders that I make are as set out at the forefront of these reasons for Judgment.

I certify that the preceding one hundred and sixty eight (168) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 21 August 2015.

Associate:

Date: 21 August 2015

[2015] FamCA 697

21 August 2015

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Jurisdiction

Remedies

Procedural Fairness