Carroll and Bane

FEDERAL CIRCUIT COURT OF AUSTRALIA

CARROLL & BANE

[2016] FCCA 3261

Catchwords:
FAMILY LAW – Children – potential risk of time with the father – supervision of child’s access to technology – father failed to participate fully in the hearing.

Legislation:

Family Law Act 1975, ss.4, 61DA, 60CC

Applicant:

MS CARROLL

Respondent:

MR BANE

File Number:

SYC 7613 of 2010

Judgment of:

Judge Boyle

Hearing dates:

4 and 5 July 2016

Date of Last Submission:

5 July 2016

Delivered at:

Sydney

Delivered on:

20 December 2016

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

Mr Tockar

Solicitors for the Respondent:

Forsters Solicitors

Counsel for the Independent Children’s Lawyer:

Ms Reynolds

Solicitors for the Respondent:

Peter Baker Solicitor

ORDERS

The Mother shall have sole parental responsibility for the child X born (omitted) 2005 ("the Child").
The Mother shall consult with the father prior to making any decision regarding the child's long term care welfare and development.
The child shall live with the Mother.
The child shall spend time with the father as follows:
(a)During school terms from 10am to 6pm on the first Sunday of each calendar month.
(b)During each of the short term school holidays for 4 days as agreed in writing, which shall include SMS or email and failing agreement from 10am on the first day of the holidays concluding at 6pm on the fourth day of the holidays.
(c)During the summer holidays commencing 2016 on 28 December 2016 from 10am to 6pm, and from 10am on Friday 27 January 2017 to 6pm Sunday 29 January 2017, or as otherwise agreed in writing.
(d)During the summer holidays commencing 2017 and thereafter for two periods of 4 days as agreed in writing and failing agreement on the first occasion from 10am on the first day of the holidays concluding at 6pm on the fourth day of the holidays and on the second occasion from 10am on Thursday prior to school term commencing and concluding at 6pm Sunday.
The mother or her agent shall deliver the child to the father at (omitted) McDonalds at the commencement of time, and the father shall return X to the mother’s home at the conclusion of time.
The Father shall confirm to the mother by SMS, or otherwise in writing, seven days prior to the commencement of time in order 4 (a), (b) (c) and (d) that he will exercise the time referred to and that Ms L is present at the home with him, and time shall not occur if the father does not so confirm.
The Father shall not consume any alcohol while the child is in his care.
That all overnight time is conditional upon Ms L being present in the home with the father.
The father shall telephone the child each Monday at 7pm, and the mother shall ensure the child is available to speak to the Father at that time.
That during any overnight time the father shall ensure that the child is able to telephone the mother at any reasonable time the child may wish.
The Mother shall ensure that the Father is notified as soon as practicable if:
(a)the child is admitted to hospital;
(b)the child is involved in a medical emergency; or
(c)the child is diagnosed with a serious condition or illness that will require ongoing specialist treatment or care.
The Mother shall advise the father of the names and contact details of all of the child's treating medical practitioners and specialists and authorise such medical practitioners to give the father information about the child's treatment.
The Mother shall notify the Father of any proposed change of school 1 month before making such a decision and shall take into account the father's view as to any change of schools.
These Orders authorise any school which the child attends from time to time to provide the Mother and the Father with copies of all school reports, circulars, notices and documents in relation to the child including copies of reports on behavioural issues and notice of school functions, parent teacher nights and all activities to which parents are invited, as well as any and all information which may be sought from time to time by the Mother and/or the Father in relation to the child which is ordinarily provided by the school.
The parents shall notify each other of any change in telephone contact number or email address, with such notification to be made in writing and within three (3) days of the change.
The parents shall notify each other of any proposed change to their place of residence, such notification to be made in writing and no less than fourteen (14) days prior to the proposed change.
The Mother and the Father shall:
(a)be restrained from:
(i)discussing these proceedings in the hearing of or presence of the child;
(ii)speaking about the other parent or the other parent's family or member of the other parent's household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child;
(b)take all reasonable steps to prevent any other person:
(i)discussing these proceedings in the hearing of or presence of the child;
(ii)speaking about the other parent or the other parent's family or member of the other parent's household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child.
The Father shall ensure that there are parental locks on all computers, and iPads at his home, such that there is no possible access to pornographic sites by the child, prior to the child spending time with him.
The Father shall ensure that his personal mobile telephone has a password lock with a password not known to the child, and is locked when it is not in his immediate possession.
The Father shall ensure that the child is in the presence of a responsible adult at all times that she is using a computer or iPad while spending time with him, and that the adult has a clear view of the screen of the device being used by the child.
The Father is permitted to attend all events at the child’s school which parents are permitted to attend.
In the event that the Mother takes the child to counselling the Mother shall authorise and request the counsellor to consult with the Father.
The Father shall ensure that X takes prescribed medication as prescribed at any time she is in his care.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7613 of 2010

MS CARROLL

Applicant

And

MR BANE

Respondent

REASONS FOR JUDGMENT

The central issue in this matter is whether X, born (omitted) 2005, now aged 11 years, should spend time with the father. The time orders sought by the father are opposed by the mother as her primary application, and there are some orders for time sought by her if she is unsuccessful in her primary application.
On 12 April 2016 the matter was set down for hearing by Judge Monahan on 4 and 5 July 2016, and directions were made for the preparation of the hearing.
At the commencement of the hearing the father indicated that he wished to seek an adjournment. He did this on the basis that he could no longer afford legal representation, that his wife is currently in (country omitted) and is not available as a witness, and that he scheduled a moving truck to move home on the second day of the hearing. The father also indicated he could not afford the costs of time supervised by Phoenix Rising ordered on 2 May 2016, and he has exercised no time with X.
The father told the Court that he was aware at 12 April 2016 that his wife would be away, although nothing was said to the Court at the time the hearing dates were allocated.
When the matter was before the Court on 2 May 2016, the Court was advised that the father’s wife would be in (country omitted) on the hearing dates. Options were canvassed with respect to how her evidence might be given from (country omitted) by telephone or audio visual link. The father has taken no steps to advance these options.
The father now says that his wife may be back at Christmas, and further: “She is clearly unhappy about participating in legal proceedings”, and that she left the country without signing the affidavit that had been prepared for her.[1] An adjournment was unlikely to assist in making her available to participate in this hearing.
[1] Father’s affidavit filed 28 June 2016 para 7.
The father raised that he had booked a removalist for 5 July 2016, notwithstanding that was the second day of the hearing. He tendered a letter from (omitted) Real Estate, specifically Ms E, the leasing manager.[2] It sets out the terms and conditions of the lease of a property at (omitted), New South Wales. The commencement date of the property is 2 July 2016, and the rent is $825 per week.
[2] Exhibit F1.
The father provided no explanation for arranging to move on a day this matter was listed for hearing, when there were other options available, such as moving over the weekend prior to the hearing commencing. The father has entered into a lease for a four-bedroom home. It is unclear why he would choose to spend $825 per week in this manner when he advises that he cannot afford to pay for Phoenix Rising to supervise time with X, and there is no firm return date for his wife and children to Australia.
I did not grant the father’s application for an adjournment, and the matter proceeded. The father did not attend court on the second day, and the matter proceeded in his absence. The father was not available to be cross‑examined. Nor did the father cross‑examine the mother’s partner, Mr J.

Documents Relied On By The Parties

For the mother:
a)Initiating Application filed by the Mother on 27 November 2014.
b)Notice of Child Abuse, Family Violence, or Risk of Family Violence filed by the mother on 27 November 2014.
c)Affidavit of the mother filed on 20 June 2016;
d)Affidavit of Mr B filed on 21 June 2016.
e)Affidavit of Ms R filed on 21 June 2016.
f)Affidavit of Mr J filed on 21 June 2016.
g)Affidavit of Ms K (psychologist) filed on 27 June 2016.
For the father:
a)Response filed by the father on 8 December 2014.
b)Affidavit of the father filed on 8 December 2014.
c)Affidavit of the father sworn on 4 April 2016.
d)Affidavit of the father filed on 28 June 2016.
e)Affidavit of Ms M filed on 8 December 2014.
For the ICL:
a)Child Dispute Conference Memorandum prepared by Ms R dated 8 December 2014.
b)Family report prepared by Mr B dated 25 January 2016.
Each party prepared a case outline document.

The Exhibits

The following exhibits were tendered:
a)Court Exhibit 1. An email from Mr Corish, the father’s former lawyer, to the parties dated 3 May 2016.
b)Court Exhibit 2. An email from Mr Bane to my Associate dated 5 July 2016.
c)ICL Exhibit 1. Documents produced under subpoena from the NSW Department of Education.
d)ICL Exhibit 2. Documents produced under subpoena from (omitted) Psychology.
e)Mother’s Exhibit 1. X’s report card from (omitted) School for year 5.
f)Father’s Exhibit 1. Email from (omitted) Real Estate to the father.

Parties Orders

The mother sought orders in accordance with a proposed minute of orders:
1. The Mother should have sole parental responsibility in relation to X, and that she shall keep the Father informed of any decisions made by her in respect of any major long-term issues regarding X and to provide him with all relevant information pertaining to such decisions.
2. The parenting orders made on 13 December 2011 be discharged in so far as they allow the Father to spend any time with X.
3. In the alternative to order number 2:
3.1 That X spend time with the Father, for the first 6 months from the date of these orders, on alternate Sundays as follows:
a. The first Sunday will be the second Sunday after the date of these orders from 10am to 2pm.
b. For the next four alternate Sundays from 10am to 2pm.
c. For the following alternate Sundays from 10am to 4pm.
3.2 That each of the occasions of time referred to in order 3.1 herein shall be supervised by Phoenix Rising with the cost of same to be met by the Father.
3.3 After 6 months from the date of these orders X is to spend time with the Father on alternate Sundays from 9am to 5pm.
3.4 These visits shall be supervised by the paternal grandmother, Ms A, who is to be with the Father for all of the time that X is with him on each visit.
4. That the changeovers on the first 6 months shall occur by, the Father arranging the Phoenix Rising supervisor to collect the X from the mother’s home at the commencement of his time and deliver X to the Mother’s home at the conclusion of time.
5. That changeovers shall otherwise occur by the mother delivering X to the paternal grandmother at (omitted) McDonalds at the start of the Father’s time and the Father shall deliver X to the Mother’s home at the conclusion of his time, and the Father shall not enter the Mother’s home during the changeover.
6. Both parties do all acts and things, and sign all necessary documents, to engage Phoenix Rising to supervise the Father’s time pursuant to these orders.
7. The Father shall have telephone contact with X each Monday at 7pm for no more than 10 minutes by calling the Mother’s landline.
8. Both parties are injuncted and restrained from speaking in a derogatory or critical manner about the other parent and their family, or permitting any other person to do so, in the presence or hearing of X.
9. The Father is at liberty to attend all school and extra-curricular functions that parents normally attend.
10. Whilst the X is in the Father’s care the Father shall ensure that X does have access to the internet or have access to iPads or similar devices.
11. The Father shall ensure that all personal computers, laptops, iPads and any other similar device in his home have a parental lock installed so that pornography cannot be accessed from the devices.
The father sought orders in accordance with the minute of orders sought contained in his case outline document:
1. That order made by her Honour Judge Boyle dated 2 May 2016, being orders 1 to 13, continue with new dates being inserted in paragraph 2 of the said orders.
2. That after a further two months following the date of further orders, the father’s time with the child be extended to be from 10am to 6pm and the need for the paternal grandmother to be present at the initial handover be deleted.
3. In addition, the child be at liberty to spend one week of school holiday periods with the father from October 2016 if the child expresses a wish to do so.
4. From the commencement of the school term in 2017, the orders made 13 December 2011 in respect to the child spending time with the father be restored with respect to orders 1 to 7 but otherwise maintaining the said interim orders made by Her Honour Judge Boyle on 2 May 2016 in respect of order 5 (without the requirement for the paternal grandmother to be present) in respect to handovers and orders 8 to 13.
5. The parties each be restrained from referring to the other parent, or allowing anyone else to do so other than as “Dad” or “Mum” or by similar address.
The ICL sought orders in accordance with their minute of orders:
1. That the Mother have sole parental responsibility for the child X born (omitted) 2005 ("the Child").
2. The Mother is to consult with the father prior to making any decision regarding the child's long term care welfare and development.
3. The child is to live with the Mother.
4. The child is to spend time with the father as follows:
a. From 10am until 2pm on alternate Sundays, for 2 occasions only, supervised by Phoenix Rising, unless the father has already had 2 occasions of time with the child supervised by Phoenix Rising prior to the date of these orders.
b. After the father has had 2 periods of time supervised by Phoenix Rising: thereafter
i. From 10am to 6pm on the first Sunday of each calendar month.
ii. For 3 nights in each short holiday such time to be in the first week of each short holiday, and commence at 10am on the first day and conclude at 6pm on the fourth day.
iii. For two periods of 3 nights in each Christmas holiday, and commence at 10am on the first day and conclude at 6pm on the fourth day, the first such period to be in the first week of the Christmas Holiday and the second period to be in mid January.
5. Changeovers are to occur at (omitted) McDonalds at the commencement of time, and at the mother's home at the end of the father's time.
6. The Father is [sic] pay all costs of Phoenix Rising.
7. The father is to confirm with the mother 7 days prior to time commencing that he will attend to collect the Child, and if the father does not confirm his attendance 7 days prior then his time with the Child shall not occur on that occasion.
8. The Father is not to consume any alcohol while the child is in his care.
9. All overnight time which the child spends with the father is conditional on Ms L residing with the father.
10. The father is to telephone the child each Monday at 7pm, and the mother is to ensure the child is available to speak to the Father at that time.
11. The father is to ensure that the child is able to telephone the Mother at such other reasonable times as the child wishes to do so.
12. That the Mother shall ensure that the Father is notified as soon as practicable if:
a. the child is admitted to hospital;
b. the child is involved in a medical emergency; or
c. the child is diagnosed with a serious condition or illness that will require ongoing specialist treatment or care.
13. The Mother shall advise the father of the names and contact details of all of the child's treating medical practitioners and specialists and authorise such medical practitioners to give the father information about the child's treatment.
14. The Mother shall notify the Father of any proposed change of school 3 months before making such a decision and shall take into account the father's view as to any change of schools.
15. These Orders authorise any school which the child attends from time to time to provide both the Mother and the Father with copies of all reports, circulars, notices and documents in relation to the child including copies of all school reports, reports on school progress and behavioural issues 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 and/or the Father in relation to the child.
16. The parents are to notify each other of any change in telephone contact numbers, such notification to be made in writing and within three (3) days of the change.
17. The parents are to notify each other of any proposed change to their place of residence, such notification to be made in writing and no less than fourteen (14) days prior to the proposed change.
18. The Mother and the Father shall:
a. be restrained from:
i. discussing these proceedings in the hearing of or presence of the child;
ii. speaking about the other parent or the other parent's family or member of the other parent's household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child;
b. take all reasonable steps to prevent any other person:
i. discussing these proceedings in the hearing of or presence of the child;
ii. speaking about the other parent or the other parent's family or member of the other parent's household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child.
19. The Father is to ensure that there are parental locks on all computers, and Ipads at his home, such that there is no possible access to pornographic sites by the Child, prior to the Child spending time with him.
20. Deleted.
21. The Father is to ensure that his personal phone has a password lock with a password not known to the Child, and is locked when it is not in his immediate possession.
22. The Father is to ensure that the Child is in the presence of a responsible adult at all times that she is using a computer or Ipad while spending time with him and that such adult has a clear view of the screen of the device being used by the Child.
23. The father is permitted to attend all events at the Child's School which parents are normally permitted to attend.
24. In the event that the mother takes the child to counselling the mother is to authorise and request the counsellor to consult with the father.

Background

There has been a history between these parties of difficulty with the father reliably spending time with X. The parties separated prior to X’s birth in (omitted) 2005. The mother arranged time with the father. This generally took the form of short visits which continued from a few weeks after X’s birth until (omitted) 2006. The father was not reliable in making arrangements with the mother for time to occur. In February 2006 there were some efforts to reignite the parties’ relationship which failed.
In April 2006 the mother met Mr J, her current husband and a relationship developed. Shortly after the mother commenced a relationship with Mr J, she complains that she began receiving telephone calls from the father that were harassing and offensive. She complained to the police on 28 July 2008 about phone calls occurring up to 10 times a day between May 2006 and 15 October 2007, on her mobile telephone and on the home phone. She says that she received text messages from the father until 15 October 2007 when she changed her mobile telephone number.
The calls and texts from the father occurred at all times of the day and night. The more harassing communication was between 10pm and 3am. Mr Bane would either hang up or swear at the mother calling her names, saying things such as, “I’m going to get you. I’m going to fix you right up, dumb fucking crack whore. What don’t you fucking understand? Hope you fucking die. I’m going to fuck you over.” The maternal grandparents also received calls from the father in the middle of the night. I accept the evidence of the mother and the maternal grandparents with respect to the telephone calls and texts.
The mother went to a mediation session with the father on 6 June 2008 to discuss time arrangements with respect to X. She then commenced receiving telephone calls again from the father where he called the mother a “crack whore”, and other names similar. There was an arrangement reached at mediation for the father to be able to speak to X by telephoning her at the mother’s home at 6 pm. The mother was content for that to occur, as long as the father did not contact her outside of that arrangement.
During 2008 the father spent time with X on two occasions, on 15 January and 23 April 2008. There were difficulties on the first occasion, in that the father did not return X at the time she was supposed to be returned and the mother was required to collect her. From 23 April 2008 to 28 December 2009 the father did not see or speak to X. It is now clear on the father’s evidence that he was travelling for some of that time. He commenced a relationship with his now wife in (country omitted) whilst he was away. Neither the mother nor X were aware that the father was absent from the country as he did not communicate with them at all over that period.
On 24 July 2008 the maternal grandparents received abusive telephone calls from the father, including him shouting at the maternal grandfather “I want to cut your throat”. An ADVO was applied for on 26 July 2008, interim orders were made and the matter adjourned to 19 August 2008. On that occasion the father did not appear and the Magistrate made orders for a final ADVO for a period of 12 months.
The mother says that from 8 April 2010 until about September 2010 when she changed her telephone number, the father sent her offensive text messages and made offensive telephone calls to her. Over this period he spent time with X on about nine occasions.
The father commenced proceedings in this court in 2010, which were resolved by final consent orders on 13 December 2011. Those orders provided for equal shared parental responsibility and for X to live with the mother. There were orders for time between the father and X from the commencement of school term in 2012, each alternate weekend from 4 pm Friday until 4 pm Sunday, and from 2013 for half of the three mid-year school holiday periods, and for two weeks in the long summer holidays.
The father was to collect X from the mother’s home at the beginning of time, and the mother collect X from the father’s home at the conclusion of time, provided that the father was up-to-date with his child support payments.[3] If he was not up to date he was obliged to return X to the mother’s residence at the end of his time. Over the Christmas holidays of 2011/2012, the father was due to spend one week with X, however, he failed to do so.
[3] Final consent orders made by Federal Magistrate Scarlett (as he then was) on 13 December 2011.
In February 2012 the father’s wife, Ms L, returned to (country omitted). She remained there for about one and a half years, returning in late July 2013.
The parents have different attitudes towards a number of parenting issues for X, including the way they each manage her use of technology, and managing her health. The father gave X an iPad for her eighth birthday. The mother was concerned that parental locks be put in place and that X be properly supervised whilst using the iPad. The father did not comply with the mother’s requests.
X has an asthma puffer which she uses as a preventative measure for asthma. Her mother ensures that X uses it regularly. The father, on at least one occasion on 27 May 2012, did not provide it to X when she was spending a weekend with him.
X suffered a fall in November 2012 when with her father for the weekend. She lost a front tooth and had swelling, bruising and bleeding from her chin and mouth. The father did not seek any medical attention for X, and did not notify the mother. It was not until X returned home that the mother became aware of the accident. The mother took X to (omitted) Hospital where her injury was treated. The father did not regard this as a serious accident, where the mother did. It is clear that the father should have told the mother what happened, at the time that it happened. The parties could then have discussed seeking medical advice.
Whilst the father’s wife was in (country omitted) in 2012/2013, there was an issue about the father having flatmates in his home who were unknown to the mother. The mother was not provided, despite her requests, with any details of those people. Between March and May 2013 there were phone calls between the parents where the father referred to the mother in derogatory terms such as “fucking bitch, fat fucking slag, I hate you.”
In late July 2013 the father’s wife, Ms L, returned to Australia with their two children.
In about May 2014 further issues arose with the father returning X late, and the mother’s partner was required to come and get her on two occasions. On one occasion she missed the first day back at school. X was distressed by that, which is unsurprising given that X is a diligent and committed student. Her father would have been aware that his actions would cause X distress.
X spent time with the father during the school holidays in July 2014. After the holidays the mother became concerned there was a change in X’s behaviour. She was upset and she withdrew. X said that she did not want to spend time with her father, and advised both the father and the mother of this. After those holidays in July 2014 she ceased to spend weekend time with the father. The parties had disputes over that, as the father was keen to have X spend time with him, and clearly viewed the mother as preventing that occurring.
X spent time with the father during the first week of the September school holidays in 2014. Although she was sent with medication she required and advice for the administration of medication, the father did not provide that to X and she was brought home early as she was unwell. The father agreed that on one occasion he forgot her asthma medication. X has not spent time with the father since September 2014.
On 30 September 2014 the father telephoned the mother and advised that his sister had called him. His niece E was having nightmares and apparently told her mother it came from things X showed her on her iPad. It is accepted by both parties that X accessed pornographic material on her iPad. The mother had thought that the material may be on X’s iPad from the father, or someone else, using the iPad to access pornography. The father vehemently denied having accessed any pornographic material on X’s iPad. It is now agreed that X looked up the material.
The iPad, although given to X for her birthday, was retained by the father for X’s use at his home. On 1 October 2014 the mother spoke to X about whether she had looked at pornographic material. X told her that she had found a photo of the father’s wife, Ms L, lying naked in the lounge and a video of Ms L “doing disgusting things to herself”. X said that the father was filming the video.
When X was asked by the family consultant whether it was possible the video was of someone else, she said not “unless it was her twin.”[4] The father agreed that he had a photo of Ms L without a top on, on his iPhone. He denies the existence of a video as described by X.
[4] Family Report, para 43.
The pornographic material accessed by X from the internet was clearly extremely upsetting for her, and caused her significant distress and shame. X refused to speak to her father thereafter.
The mother arranged for X to receive some assistance from a counsellor, Ms J, of (omitted) Psychology at (omitted). She saw Ms J on six occasions between October and December 2014. The notes of that counselling reveal X’s concerns: “It is all my fault”, “People think I am bad”, “At school I sometimes think that I am a bad person; no one likes me.” X said on a number of occasions things like, “I feel more normal at home with mum.”[5] The counselling assisted X, and the mother described her as back to her normal self. Counselling was not thereafter continued.
[5] Exhibit ICL 2.
The interim orders of 2 May 2016 provided for a reintroduction of time between X and her father. Unfortunately that did not happen, because the father did not arrange for visits through Phoenix Rising. Whilst he says he did not have the funds to permit such visits the father has rented a four-bedroom property for $825 per week. He is the only person currently residing there. Making arrangements for supervised time with X has not been a priority for the father.
The mother’s case, in essence, is that there are risks associated with recommencing time. She says that X is doing extremely well as things are, and that to introduce time between the father and X runs a risk of destabilising her otherwise steady progress at school, socially and in her extracurricular activities.
The family consultant provided a report, and was cross-examined. When asked about spending time with her father, X said she cannot really remember why she is not spending time with her father at the moment, saying, “I did enjoy it, but I missed out on a lot of things.” She said it was her decision to not see her father, and that she likes it how it is now, although she said that she could “maybe go for school holidays”.[6]
[6] Family Report, para 40.
When the issue of viewing the pornography was raised with X she said, “I’m ashamed about what I did. I’m embarrassed.” She said she saw a video on her iPad of Ms L. X made it clear that she accessed pornography from the internet, saying, “I typed in the words.”[7] At that point she became very distressed. The family consultant said in evidence that X regrouped, and although she was upset she was able to manage the interview.
[7] Family Report, para 43.
X is described by her parents as a bright child, which is clear from her school report.[8] She is excelling in all areas of her academic life, and appears to be a delightful student. She is also very interested in dance, and a very good swimmer. X is developing into a well-rounded individual.
[8] Exhibit M1.
A matter of concern, as advanced by the family report writer, is X’s feeling of responsibility with respect to her relationship with her father. Time ceased after she accessed the pornography, therefore she feels responsible. If there is no time with her father, it would need to be made clear to her that it is not her fault, nor her responsibility. The family consultant was concerned that if she does feel responsible, it could make her more likely to experience depression and anxiety in the future.
Ms R provided a Child Dispute Conference memo to the Court when the matter first commenced.[9] Ms R referred to X as needing to be able to put the accessing of pornography into perspective, that she was not naughty or bad, and her father was not naughty or bad, so she can repair her relationship with her father.
[9] CDC Memo of Ms R dated 8 December 2014.
Mr B gave evidence that X may need some therapeutic assistance to repair her relationship with her father. It was clear to Mr B that X felt her father did not believe her, or was calling her a liar, with respect to the video of Ms L. Mr B’s opinion was that if the father took responsibility for the video, it would lessen X’s sense of responsibility with respect to accessing pornography.
X exhibited a very warm and comfortable relationship with her siblings in her father’s home, and would clearly benefit from being able to spend time with them once they return to Australia. Mr B supported some supervised time to reintroduce the time arrangements, in part to give the mother some confidence about how X is managing resuming her relationship with her father. He also viewed it as likely to reduce any anxieties X might have and, therefore, to be beneficial for her.
Mr B thought that time occurring less frequently than fortnightly during school term may be helpful for X. Fortnightly time has not occurred since 2014. The mother would find it easier to sustain less frequent time during school terms. She becomes anxious around X spending time with the father. It is important the relationship between X and the mother not be stressed by the mother’s anxiety. There would also be difficulties if X said she did not want to go, in her being forced to do so.
Mr B did not view the father as being a danger for X, but rather was concerned that risks for X arise from him being inattentive. The use of the iPad is a clear example of this.
The value for X of spending time with her father was viewed by Mr B as being dependent on the mother being able to support X’s time with her father. She will be better placed to do so if it is based on what X wants. Therefore time in school holidays, X’s expressed preference, may be more likely to work.
Unfortunately the father’s past conduct with respect to offensive SMS and the like has only heightened the mother’s concerns about him as a parent, and his capacity to behave in a responsible manner. It seems likely that alcohol played a role in the father’s late night offensive communications. The father has, since time ceased, attended outside X’s school and at a dance concert. These were described as stalking by counsel for the mother. The contrary view, as Mr B put it, is that the father simply really wanted to see X. Whilst he might have given no thought about the impact of his unexpected appearance on others, his actions were understandable in that context.
Mr B agreed with the proposition that introducing time with the father is a near certainty to cause a resumption of conflict between the parents. X has had two years without having to deal with conflict between her parents. Conflict between the parents will likely cause the mother’s anxieties to increase.
Should there be no order for time, Mr B thought it may be possible that X could frame this as due to her parent’s poor relationship, rather than her responsibility. X has long been aware of the difficult adult relationship. In my view there is still a significant risk of X feeling responsible given her intelligence and the link between her viewing pornography and time with her father ceasing.
The mother had a one-off session with Ms K on 21 June 2016, shortly before the hearing. Ms K’s report refers to the mother’s stress and her ability to cope.[10]
[10] Affidavit of Ms K filed 27 June 2016.
I find the mother to be a sensible and responsible parent. She has not sought counselling for herself despite that being recommended. No doubt it is stressful for her to deal with Mr Bane. Given her capacity as a parent and her commitment to her daughter, were she to need some assistance in managing X spending time with Mr Bane, I do not doubt that she would do so. Equally if she perceives that X needs counselling there is no question that she would make appropriate arrangements, as she has done in the past.
By not making himself available for cross-examination, nor fully participating in the hearing, the father has placed the Court in a difficult position. He has spent time with X in the past. The observations and views of the family consultant suggest that there may be benefits for X in spending time with her father in the future. The father has not been present to suggest how that could sensibly be organised for X, including any involvement of his extended family.
When cross-examined, both maternal grandparents were very clear that they regard the paternal grandparents as good people, who would promote and support X. They do not know the paternal aunt, Ms M, however they regard her as someone who could offer a beneficial relationship to X. As none of those people were on affidavit or at court, it was impossible for there to be any proper consideration of the role they may play in orders for X to spend time with her father. It is hoped that he would involve them in seeing X during periods he may spend with her.

The Law

The Court is required to determine what orders may be in X’s best interests. The legislation provides the method to ascertain her best interests.

Primary considerations

Section 60CC(2) The primary considerations 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.

X viewing pornography has exposed her to psychological harm, through the father’s neglect of her care. The father should have placed parental controls on the iPad as the mother wanted.
There is a question mark over whether the video and photograph of Ms L were on X’s iPad or on the father’s iPhone. There is no evidence that would support a finding that the father used X’s iPad to take an intimate video of his partner. I accept that X viewed a video of Ms L that contained what could be described as pornographic images: X’s comments to the family consultant make this clear.
The father needs to take responsibility so that X knows that she is believed. It places a burden on her that she perceives her father is calling her a liar. If this is not resolved it will continue to damage their relationship.
X will benefit from a meaningful relationship with her father provided that he properly supervises her and does not denigrate her mother. Given X’s age she is able to sustain a meaningful relationship with her father by time occurring less frequently than fortnightly. Less frequent time is easier for X to manage. It is easier for her mother to manage.
There is no question that X has a meaningful relationship with her mother that is beneficial to X. The two of them share a very close and loving relationship.

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.

X is an 11 year old girl who is developing well. She is a bright and capable child. She is at least as mature as her chronological age, if not somewhat more mature.
I do not doubt that X has said to her mother that she does not wish to see her father. However, given the close relationship that she has with her mother, her mother’s anxieties around her father and X’s sense of responsibility, I do not accept that is the end of the matter.

When interviewed by the family consultant X was clear that her parents “don’t get along”, they “usually don’t talk to each other”, and “they’re mean to each other”.[11] She said she does not get anxious about her parents being exposed to each other because “I’m kind of used to it.” However, she would like them to be friends. She was ambivalent about resuming time with her father, saying “I don’t really know what I want to do”, and “I like it the way it is now.” She does not want to miss out on activities with her mother, stepfather and brothers, when with the father.
[11] Family Report, para 39.
When seeing her father for the family report interviews, the somewhat stiff and uncomfortable reunion softened, particularly when Ms L and X’s brothers Y and Z, were introduced. The family consultant noted “the overall impression was that although interactions initially appeared uncomfortable and slightly stilted, everyone appeared to relax and have an enjoyable time together.”[12] X said it was “Okay seeing dad.” X told the family consultant she could “maybe go for school holidays”.[13]
[12] Ibid.
[13] Ibid.
X is of an age and stage of maturity where her views should be given some weight. It is difficult for her to formulate and express her views, in part because of her father’s absence for two years, and in part because of her mother’s anxieties about their relationship resuming. I accept that X wishes to have some contact with her father, though of a fairly limited nature.

Section 60CC(3)(b) the nature of the relationship of the child with:

(i) each of the child's parents; and

(ii) other persons (including any grandparent or other relative of the child);

X has an excellent relationship with her mother who is loving and supportive of her. Within that household she also has the benefit of a close and loving relationship with her stepfather, Mr J who has taken a parental role for her for most of her life. She has two younger brothers, A and B, whom she loves. The observations made by the family consultant of them all together show X at ease and relaxed, and there was laughter and cheerfulness in the group[14].
[14] Family Report, para 50.
X’s relationship with her father is more complex, and has suffered from the poor relationship between her parents. The relationship has been impeded by the father’s significant absences from X’s life for periods of up to two years, generally without explanation. The father’s reunion with X in the presence of the family consultant was respectful of her, and suggests that the father is able to acknowledge the difficulty that X is in. The father thanked her for seeing him, and acknowledged “It must have taken lots of courage.”[15]
[15] Family Report para 48.
X does not have a close relationship to her stepmother, which is not surprising given their limited time together. Ms L is (nationality omitted) and speaks to the boys in (language omitted) at times, which can cause X to feel excluded.
Over the course of the day of the assessment X was observed spending time with her brothers Y and Z. She played with Y and Z, and at one point watched a movie with Y’s head resting in her lap.[16] She has a close relationship with both those children. As Ms L observed “Y adores her [X].”[17]
[16] Family Report para 47.
[17] Family Report, para 38.
The orders provide for Ms L to be present for time between X and her father to occur. Another adult present will assist supervision of X, including her use of technology over the short periods of time ordered. It is also less likely that X will be exposed to her father making derogatory remarks about her mother. The positive relationship between X, Y and Z should be fostered. It is in X’s interests to have a relationship with her brothers, and they will be generally present when their mother is.
The paternal grandparents are people well regarded by the maternal family. They have had the opportunity to develop a relationship with X when she is with the father, and it is in X’s interests for those relationships to continue. The father will have the opportunity to facilitate X’s relationships with her extended paternal family.

Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i) To participate in making decisions about long-term issues in relation to the child;

(ii) to spend time with the child; and

(iii) to communicate with the child.

The mother has provided care for X throughout her life, which has included making decisions with respect to most aspects of her life.
The father has absented himself from X’s life without explanation for significant periods of time, which has been to her detriment, and the detriment of their relationship. It is unclear whether the father understands the significance for X of those absences.
The father has not availed himself of time pursuant to orders of 2 May 2016, saying that he could not afford supervision. He has not availed himself of telephone communication with X, as provided in the orders. These matters illustrate the mother’s concern that the father may obtain orders for time with X, and disappoint her by not exercising it.
There is little point in making orders for time contingent upon supervision by Phoenix Rising, or a similar paid organisation. It is unlikely that the father will avail himself of such an option. Short periods with the father’s wife being present for overnight time balances X’s need for a relationship with her father and paternal family, and her need to be buffered from any negative aspects of her father.

Section 60CC(3)(ca) the extent to which each of the parents has fulfilled, or failed to fulfil the parent’s obligation to maintain the child

The mother and Mr J have financially supported X throughout her life. The parents have had disputes with respect to child support over the years. There is an extraordinary text message sent by the father to the mother after X accessed pornography, and time ceased:
Since you won’t let me have ANY contact with X you can inform her that I just received the monthly account for the mobile internet, her porn and YouTube access for the week was $529. In the years to come when X has issues that have been brought about by YOUR continued actions I am sure you will blame me, Ms Carroll. See you in court!!! [18]
[18] Mother’s affidavit filed 20 June 2016 annexure “D”
The father is in arrears of child support of $7,930.[19] He appears to take issue with that assessment, but it is unclear whether he has pursued that with the Child Support Agency.

Section 60CC(3)(f) the capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child)

[19] Mother’s affidavit filed 20 June 2016 annexure “E”.

to provide for the needs of the child, including emotional and intellectual needs

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

The mother has demonstrated the capacity to meet all of X’s needs. She has been well supported by her husband in caring for X. Whilst she may find resumption of time between the father and X stressful, there is no doubt that she is a competent, capable parent of X, and will take appropriate steps to get herself support if she feels she needs it.
Ms W reflects a one-off consultation, whilst the mother was preparing for this hearing. There is no doubt that the mother has found this extremely stressful. X is flourishing in her mother’s care, as evidenced by her school report, and the accounts of her mother, stepfather and maternal grandparents. The mother is clearly coping well with caring for her, and managing the stresses of life.
The mother has fostered X’s involvement in activities she enjoys, and in which she excels. When issues arose for X she acted responsibly to get her assistance to deal with the emotional and psychological consequences.
The father has failed to demonstrate the capacity to provide for X’s needs, other than for short periods. He has been inconsistent in his involvement with her, and his lack of attention led to X being exposed to pornography and consequent psychological harm.
The father has absented of himself from X’s life without explanation. He has not availed himself of orders permitting face-to-face time and telephone communication with X. He does not appear to understand the significance for X of his being unreliable in his commitment to her.
The father's lack of participation in these proceedings exemplifies his attitude. He organised to move house on a day of the hearing, despite the new house being available to him on the weekend prior to the hearing.
The orders provide for X’s need for a relationship with her father and paternal family, whilst minimising the negative impacts of her father’s limited parenting capacity.

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

X is an 11-year-old girl who is at least as mature as her chronological age. Her parents are of similar cultural backgrounds. She is involved in and enjoys extracurricular activities, including dance and swimming.

Section 60CC(3)(j) Any family violence involving the child, or a member of the child’s family

The father has threatened and denigrated the mother and maternal grandparents by text messages and by telephone in the past.[20] The mother and grandparents have kept that from X, so that it does not appear she has been exposed to family violence.

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family

[20] As defined in Family Law Act 1975 section 4AB(d); definition of family violence.

There is no family violence order in place or applied for.

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

X is now 11 years old. Her parents separated when she was a baby. She first experienced her parents in litigation about her between the ages of 5 and 6.
These proceedings were commenced in 2014, when X was 9 years old. It is clearly in X’s interests for there to be an end to litigation. The stress caused on her mother, and to X herself, is adverse to X’s interests.
It is difficult to assess whether the father will comply with orders made. The orders require the father to give 7 days notice of his intention to exercise time, and that Ms L is present in his home, otherwise time shall not occur. Notice to the mother will assist the mother manage X’s expectations around time with her father.

Parental Responsibility

It is not in X’s best interests for her parents to have equal shared parental responsibility.[21] As the evidence reveals, they are unable to communicate effectively to make decisions for her, and it would be likely to lead to further conflict between them. It follows that the orders provide for the mother to have sole parental responsibility for X, as she is the person with whom X shall reside, and the one who has actually been making decisions for her to date.
[21] Family Law Act 1975 s.61DA(4).

Conclusion

Time arrangements are difficult in this matter. The father may not avail himself of the time, as has happened previously. X should not feel disappointed and abandoned by her father, as may happen if that occurs. She has already felt responsible for their relationship.
The orders provide for daytimes during school term on about 2 occasions each term, and some overnight time during the holidays. X loves her brothers Y and Z and is entitled to have the opportunity to develop her relationship with them. X has a busy schedule during school terms now, which will only increase in her high school years. Limited time during school terms is in line with her preferences, as expressed to the family consultant.

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Judge Boyle

Date: 20 December 2016

[2016] FCCA 3261

20 December 2016

Key Legal Topics

Areas of Law

Family Law