Cave and Carle
[2019] FamCA 985
•19 December 2019
FAMILY COURT OF AUSTRALIA
| CAVE & CARLE | [2019] FamCA 985 |
| FAMILY LAW – CHILDREN – Where interim consent orders provided that time between the father and the child be supervised – Where the father acts in an entitled and impulsive way, and can demonstrate anger and poor self-control – Whether the father poses such a risk of harm to the child that his time with him needs to be supervised –Whether the father’s relationship with the child could sustain a fortnight block of time – Where the overall risk of harm which the father poses to the child is low – Where the father’s time with the child does not need to be supervised – Where based on observations of the Family Report writer, the Court is not satisfied that the child would be unable to cope with spending a block period of time with the father – Where orders made for time and communication as sought by the father. |
| Family Law Act 1975 (Cth) ss 60B, 60CA and 60CC |
| Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 Maldera & Orbel (2014) FLC 93-602; [2014] FamCAFC 135 |
| APPLICANT: | Ms Cave |
| RESPONDENT: | Mr Carle |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Collier |
| FILE NUMBER: | CSC | 256 | of | 2019 |
| DATE DELIVERED: | 19 December 2019 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 18 December 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Raeburn |
| SOLICITORS FOR THE APPLICANT: | Millyard Family Law |
| SOLICITORS FOR THE RESPONDENT: | Bassano Law |
| SOLLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Collier Lawyers |
Orders
Order 3 of the Orders dated 17 June 2019 be varied as follows:
3. “The child is to spend time with the father each alternate week commencing Thursday at the conclusion of school until before the commencement of school the following Monday and if either days are non-school days, changeover is to occur at the Vacation Care/After School care provider or at the Post Office in City G with the mother or father permitted to have an agent attend the changeover, provided such agent is known to the mother or father.”
Order 4 of the Orders dated 17 June 2019 be discharged.
The child live with the father from 9:00am on 20 December 2019 until 5:00pm on 5 January 2020.
The child communicate with the mother by telephone or Skype between 11:00am and 11:30am on Christmas Day 2019.
The time for the father to comply with order 4 of the orders of Judge Willis made 23 September 2019 be enlarged to 4:00pm on 31 January 2020.
Otherwise the father’s Application in a Case filed 8 November 2019 and the mother’s Amended Application in a case filed 13 December 2019 be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cave & Carle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: CSC256/2019
| Ms Cave |
Applicant
And
| Mr Carle |
Respondent
REASONS FOR JUDGMENT
Introduction
On 17 June 2019 Judge Willis made consent interim orders in the Federal Circuit Court in relation to the parties’ only child, X born in 2012, and hence presently 7 years of age (“the child”). Under those orders, the child was to live with Ms Cave (“the mother”) and to spend alternate weekend time with Mr Carle (“the father”), although all of his time with the father was to take place in the presence of another responsible adult. Within the body of that order, there was a notation that one of the paternal grandparents would be present during any time that the child spent with the father.
Now, by Application in a Case filed 8 November 2019 (as modified by his written submissions) the father seeks not only the cessation of the requirement that his time with the child be spent in the presence of another adult, but also seeks that he spend a block period of time with the child in the current Christmas school holidays, and to extend the alternate weekend time, so that it commences on Thursday afternoon.
For her part, by Amended Application in a Case filed 13 December 2019, the mother sought orders requiring the father’s time with the child to be formally supervised by either of the paternal grandparents, a social worker or qualified child care worker. Further she proposed that the time the child spent with the father over the current Christmas holidays would be from noon on Christmas Eve until 4:00pm on 27 December, followed by weekend time from 10:00am Thursday 9 January 2020 until Sunday 12 January 2020 at 4:00pm. Otherwise it appears as though she contemplated that the regime established by the 17 June 2019 orders would continue.
The parties also sought a variety of incidental orders.
For her part, the Independent Children's Lawyer supported the father’s position.
On 18 December 2019 I heard the parties competing applications, and reserved my decision. This is that decision and the reasons for it.
Background
The father was born in 1982 and hence is presently 37 years of age. For most of his life he has lived in North Queensland. After leaving school he initially obtained an apprenticeship in building, but later obtained engineering qualifications. Prior to meeting the mother, he had been in a number of relationships, including one marriage. A child was born to one of those relationships, however it seems that the father has no present contact with him. The father was 27 years of age and living in E Town when he met the mother, and commenced a relationship with her, in 2009.
The mother was born in the United Kingdom in 1983 and hence is presently 36 years of age. After completing her schooling, she studied a Diploma at college. At some stage she travelled to Australia, and it was at that point of her life that she met the father, when she was 26 years of age.
Shortly after the parties met, the mother moved into the father’s unit in E Town, and lived there until they moved to C Town in 2012. It was whilst the parties were living at C Town that the child was born in 2012. It seems likely that the mother suffered post-natal depression, and the father claims that during the relationship, he undertook most of the infant child’s care, and attended to his needs.
Whilst the parties are not in agreement as to the precise month when they separated, it appears to have been about mid-2014, at which time the child was a little over 18 months of age. There are numerous mutual allegations of arguments, family violence and angry behaviour in the lead up to, and after, separation.
Both parties told Ms D (“the Family Report writer”), that they shared the care of the child post separation, seemingly in large part because the mother’s employment on night shifts made it difficult for her to care for him at night. The child was also cared for by the paternal grandparents, who live not far from C Town.
In mid-2016 the Department of Child Safety received a notification from the child’s day care centre at C Town that he was displaying sexualised behaviours uncharacteristic of a three year old child. No cause for that display of behaviour was able to be identified at that time, or indeed subsequently.
In 2017 the mother relocated to City G. The father followed some six months later. However it seems not in contest that he did not thereafter establish a home in City G, but rather stayed with friends, or lived at worksites.
Post separation, both parties have re-partnered, in the mother’s case with three different people, whereas the father has had two casual relationships.
The mother commenced these proceedings in the Federal Circuit Court in April 2019.
I have already adverted to the interim orders made by Judge Willis on 17 June 2019. Significantly, those orders, which were made by consent on the first return of the mother’s Initiating Application, were the first occasion that the child’s time with the father was required to be in the presence of another adult.
Subsequently, on 23 September 2019 her Honour ordered the transfer of this matter to the Family Court of Australia.
As at the time of the hearing before me, the father remained based in City G, although he does not maintain a home there. He alternates between two jobs. He is in a casual relationship with a woman, although they do not cohabit. He continues to spend time with the child pursuant to the June interim orders.
For her part, the mother is now cohabiting with a Mr F, who is a tradesperson. He has an eight year old son who spends about 75 per cent of the time with him. According to her most recent material, the mother remains employed in retail, working approximately 20 to 30 hours a week, seemingly mostly on the weekends, and further, works about 15 hours a week in sales.
The child has just completed year one of primary school. It is said that he has some behavioural issues, in that he becomes easily frustrated and agitated. He intermittently continues to demonstrate sexualised behaviours. Otherwise he appears to be a bright and active young boy.
Relevant statutory provisions and legal principles
The statutory regime
Part VII of the Family Law Act 1975 (Cth) (“the Act”) contains the relevant statutory provisions dealing with children. Section 60B of the Act specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part 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.
(2) 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).
…
Section 60CA of the Act provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC of the Act. Consideration does not mean discussion (Banks & Banks (2015) FLC 93-637 at [49]).
In Maldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and s 60CC of the Act. At [72] the Court applied the principles enunciated in Wacando v Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) of the Act can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B of the Act than to the outcome of her deliberations under s 60CC, and in doing so, her Honour had erred.
Risk assessment in parenting matters
In Harridge & Harridge [2010] FamCA 445 Murphy J, proceeded to adopt the following list of inquiries in relation to risk assessment:[1]
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
[1] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.
Interim parenting proceedings
In Goode & Goode (2006) FLC 93-286 at [81]-[82] the Full Court set out the way in which an interim parenting application should be determined as follows:
81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82. In an interim case that would involve the following:
(a)identifying the competing proposals of the parties;
(b)identifying the issues in dispute in the interim hearing;
(c)identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
In Salah & Salah (2016) FLC 93-713 the Full Court at [37]-[41] said this in relation to the task of a judge conducting an interim hearing where disputed facts are unable to be resolved:
37. It is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial. His Honour recognised this and indeed at [14] referred to "the usual pathway as highlighted in Goode & Goode(2006) FLC 93-286". A paragraph relevant to this appeal in the Goode decision is as follows (at 80,901):
68. ... the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is "significantly curtailed". Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties' respective proposals for the future.
38.In Eaby & Speelman (2015) FLC 93-654 the Full Court (Thackray, Ryan & Forrest JJ) observed about Goode in disputed facts in interim hearings:
18. ... that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
39. The Full Court in Eaby & Speelman went on to say (citing Marvel v Marvel (2010) 43 Fam LR 348) that findings (in disputed interim proceedings) should be couched with great circumspection.
40. In SS v AH [2010] FamCAFC 13, the majority of the Full Court (Boland and Thackray JJ) said:
100. ... Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
41.The trial judge here faced just that challenge. His Honour, when confronted with significant allegations of violence was required to do more than merely note the contention (or "conjecture") and not to "simply ignore an assertion because its accuracy has been put in issue" (see SS v AH).
The mother’s Rice & Asplund point
Unexpectedly, at the 18 December 2019 hearing, the mother asserted that the so-called rule in Rice & Asplund (1979) FLC 90-725 precludes the father from seeking to disturb the 17 June 2019 interim consent orders, as there has been an insufficient change in circumstances since then to warrant re-litigation.
That misplaced contention can be swiftly dealt with. As at 17 June 2019, the proceedings had only recently commenced. Since then, a Child Inclusive conference has been conducted, and a memorandum arising from it prepared as well, and an Independent Children's Lawyer has become engaged in the proceedings. Also, a Family Report has been prepared and released, which recommends that an equal time regime commence forthwith. Finally, the child has completed year one, and is now on his Christmas holidays, as to which the June orders were entirely silent, as indeed they were silent in relation to special days, such as the child’s birthday, Christmas and Easter.
Those matters amply justify revisitation of the 17 June 2019 consent orders, which, in any event, were expressly said to be only “until further order,” rather than to continue until trial.
The competing proposals
At the commencement of these reasons I have already identified the parties’ proposals. However, in broad terms, the father seeks a little over a fortnight of unsupervised holiday time with the child, including Christmas day this year, before reverting to alternate weekends, albeit extending those to include Thursday nights. He proposes that his weekend time with the child also be unsupervised.
For her part, the mother accepts that there should be holiday time spent by the father with the child, but insists that it needs to be supervised, seemingly in a formal sense. She apparently thereafter contemplates that the current alternate weekend regime will prevail, albeit supervised.
The issues in dispute
The most significant issue in dispute between the parties is whether the father poses such a risk of harm to the child that his time with him needs to be formally supervised. A second matter in dispute between the parties is whether the father’s relationship with the child would be able to sustain a fortnight block of time, such as the father contemplates, or whether during such a period, the child would be distressed and anxious at being separated from his mother for so long.
The agreed or uncontested facts
In addressing the background to this application, I have dealt with what I understand to be uncontroversial facts. However additional matters which appear not to be in dispute are as follows:
·The father was a respondent to a domestic violence order brought to protect a former domestic partner in 2005, and he was charged with breaching that domestic violence order on 9 January 2006. The outcome of that charge is unclear on the facts;
·In 2008, the father was charged with stalking and harassing his former wife. The outcome of that charge is again unclear;
·On 3 December 2008, the father was found guilty of assaulting or obstructing a police officer, but apparently no conviction was recorded;
·On 26 March 2009 the father was accused of forcing himself sexually upon a woman, although no charge ensued;
·On 10 August 2011 the father was convicted of trespassing, and fined in the Magistrates Court;
·On 31 May 2012 the father was found guilty of wilfully exposing himself (by being naked) on a beach, although no conviction was recorded;
·Shortly after 24 November 2014, a domestic violence order was taken out by the mother to which the father was the respondent. The father was charged with contravening it on 9 December 2014, 9 March 2015 and 19 October 2015, and apparently convicted, and placed on 12 months’ probation on 23 November 2015;
·On 26 May 2016 and 18 August 2016 the father was convicted of breaching the 23 November 2015 probation order;
·On 9 October 2018 the father was found guilty, but not convicted, of public nuisance, with the facts of the offence being that he refused to leave shop premises;
·The father appears to have an extensive traffic history, and has regularly been disqualified from driving;
·The child has been displaying sexualised behaviour since 2016. His behaviours involve him requesting sexual acts to be done to him, or seeking to do them to others. It appears that the last occasion when he has demonstrated such behaviours was in November 2019 whilst in after school care; and
·The child has been taken to a counsellor, and has seen her on numerous occasions. That counsellor has concluded that she cannot identify, and will likely never be able to identify, the source of the child’s sexualised behaviours, however she has concluded that the child suffers from complex trauma, derived from being exposed to domestic violence as a child.
Risk of harm posed by father
The mother’s case is that the father poses such a risk of harm to the child that his time must be formally supervised in order to maintain the child’s safety. Specifically she alleges that the father has a history of public nudity, including masturbating in front of strangers at a beach, and says that during their relationship, he had regular recourse to pornography as a source of sexual stimulation. Further, she says that the father is prone to impulsive anger, including in the course of domestic relationships.
Turning firstly to the risk of sexual harm which she says the father poses, it is a little difficult to actually discern quite what her case is. It appears likely that the father has, on more than one occasion, although on the evidence, not since 2014, attended nude beaches, or at least beaches where he was nude. It is possible (although the father denies it, and hence I cannot determine at this stage) that on one such occasion the father had an erection in the vicinity of a group of women, and perhaps he was masturbating. However, leaving to one side the fact that on the material the father does not appear to have recently engaged in any such behaviour, it is still difficult to translate such conduct into a risk of sexual harm to the child. It could not seriously be argued, on the basis of any such past conduct, that the father would expose the child to his public nudity, or engage in lewd behaviour in public whilst the child was in his care.
To the extent that the father may have in the past accessed, pornography, it is not said that he does so whilst the child is in his care, or that that he has ever done so post separation. To the extent that the mother seeks to leave hovering the possibility that it was the father who exposed the child to pornography, or sexual acts, which led to the child’s sexualised behaviours, there is no evidentiary foundation on the material before me from which I could so conclude. Further, the material could not possibly permit me to conclude that the father has in any way sexually misconducted himself towards the child.
Even acting conservatively and protectively, weighing all of the material would not enable me to presently conclude that the father poses anything other than a very low risk of sexual harm to the child.
Turning then to the risk of harm said to be posed by virtue of the father’s anger, it is true that the father does have a somewhat disturbing history, both at a criminal and domestic level. He appears to act in a quite entitled way, to have an impulsive aspect to his character, and it does seem quite likely that the child was exposed to at least heated arguments, and perhaps physical violence, during the course of the parties’ relationship, noting however that he was not yet two years old when they separated.
However the simple fact is that there is no uncontradicted evidence that, post separation, the child has been exposed to angry outbursts by the father whilst he has been in his care, or that the child has witnessed conflict or argument during such times either. That is not to say that the mother does not allege such conduct – plainly she does – but it is denied by the father, and the last objective (albeit disputed) material demonstrating anger by the father in front of the child relates to incidents in 2016. To the extent that the material suggests that the father’s anger finds expression in his intimate or domestic relationships, it is significant to note that he is not presently co-habiting with his casual partner. Overall, the risk which attaches to the father of exposing the child to family violence when in his care must be assessed as low. Again, to the extent that there is some suggestion left hovering by the mother that the father may himself be violent towards the child, the evidence could not possibly support such a conclusion.
Of course, if the child is exposed to family violence in either parties’ care, then it is likely to effect harm, of at least an emotional kind, and perhaps psychological, the effects of which may be considerable and long lasting. However whilst I recognise the gravity of any likely ensuing harm, on the present material I assess the prospect of the harmful event occurring as low.
I therefore assess the overall risk of harm which the father poses to the child as low. Such risk as exists, does not require his time with the child to be formally supervised by one, or both, of his parents, or a professional person. Further, the risk does not require that his time with the child be spent in the presence of another adult, as the interim consent orders on 17 June 2019 require. In any event, I am unpersuaded that supervision by the paternal grandparents would really be a sound mitigatory measure, as it is far from clear that their presence would in any real way reduce the prospect of a harmful event occurring. The problems associated with family members undertaking supervision are well known.
Capacity of child to spend block holiday time with the father
The mother points out that the child has “not spent longer than a week with [the father] since approximately December 2016.” She then goes on to speculate that “I do not believe [the child] will emotionally cope with extended time away from myself” (Mother’s Affidavit filed 13 December 2019 at [7]).
It is informative to note the Family Report writer’s observation of the interaction between the child and both of his parents as recently as 14 September 2019. Importantly, her observation of the mother and child lasted for about 30 minutes, and between the father, paternal grandparents and the child, for approximately 40 minutes. Relevant parts of her subsequent report dated 17 September 2019 state as follows:
·“[The child] was undoubtedly calmer when he was with his father and paternal grandparents than when he was with his mother and Mr F and [Mr F’s eight year old son]”(at [72]).
·When with his father, the child displayed no impulsive behaviour, and “spoke in a quiet voice, perhaps copying his father’s quiet voice. They frequently laughed as they played. [The child] frequently smiled as he looked as his father’s face as he spoke” (at [72])
·“When with his mother, [the child] used a very loud voice, to which Mr F and his mother stated “use your inside voice”” (at [74]).
·After Mr F and his son left the room, the child commenced to misbehave, and “became progressively angrier and although he engaged in the task he did not fully participate in it” (at [77]).
·When the mother was by herself, she could not soothe the child, but rather resorted to pleading with him (at [78]).
·The father was observed to interact positively and appropriately with the child at all times (at [80]).
·When with the father, the child “seemed like a different child; now very calm and readily negotiating, using a soft voice. There was none of the sulking or impulsivity seen when he was with [the mother]” (at [82]).
Later at [86]-[87] the Family Report writer said as follows:
86. In regard to the observed interactions between [the child] and the adults in his life, [the child] presented entirely different with each of his parents. When with his mother, [the child] was unruly, impulsive, demanding and sulky. The mother was unable to soothe [the child] however Mr F was able to direct [the child] and [the child] followed his directions. Mr F using a pleasant, low timber in his voice said a few words and [the child] was able to attend to what he needed to do.
87. When with his father [the child] was calm and the father using a calm voice negotiate with [the child] in all aspects of their activity.
Later again at [101]-[102] she continued:
101. [The child] seems to be securely attached to his father. [The father] stated that he took care of the infant [child] whenever he was home as the mother was frequently tired and unable to manage. [The child’s] interactions with the father when observed was that of a very happy, calm child who seemed to feel safe in his father’s presence.
102. [The child] appears to be ambivalently attached to his mother, that he is anxious, insecure, angry around his mother and wants to have control so that he knows what is going to happen. The school reports stated that [the child] does very well with routine, that is, when he knows what is going to happen next.
Unsurprisingly, the Family Report writer thereafter opined that it is “vital” (at [111]) for the child to have input of both parents into his life by way of spending regular extended time with each of them. Particularly, she recommended that the child spend week about with each parent.
Based upon those observations, which I reiterate are as recent as September of this year, I am not satisfied that the child would be unable to cope with either spending a block of about two weeks with the father as he proposes, or viewed from the other perspective, unable to cope with a block of about two weeks away from his mother. Moreover, I am satisfied that there are likely to be real benefits to the child in having a period of time with the father, where he has structure and routine, which the Family Report writer seems to think are more associated with the father than the mother.
Considerations under s 60CC of the Act
It will be appreciated that I have addressed both primary considerations in the foregoing paragraphs. However by reference to the additional considerations, I further observe as follows.
The child is too young to give any views deserving of weight. That said, there are indications that he is desirous of spending increased time with his father, and at times finds leaving his care difficult.
I am satisfied that the child has a good relationship with both parents, as opined by the Family Report writer.
Arguably, the father has sought to be involved in the child’s life to the maximum extent that the circumstances have permitted.
Although there is no child support assessment against him, the father has contributed to some costs of the child, particularly his private school fees.
I am not satisfied that the father’s proposal would effect any particular dislocation in the child’s regime, and find that he will likely be able to cope with that block period of separation from his mother, and three consecutive nights each fortnight.
Apart from the allegations of family violence, it is not suggested that either the mother or the father do not have the capacity to provide for the child’s needs. The mother’s allegations of the child being sunburnt while in the father’s care are minor.
The child does not have Aboriginal or Torres Strait Island heritage.
Leaving aside the very real prospect that the child was exposed to family violence during his early years, otherwise both parents have demonstrated a fairly sound approach to the responsibility of parenthood.
I have sufficiently addressed the concerns in relation to family violence earlier in these reasons. Family violence orders have applied between the parties, and the father has been convicted of breaching them. I conclude that he acts in an entitled and impulsive way, and can demonstrate anger and poor self-control. Unfortunately, the father is yet to undertake the courses required under the orders of Judge Willis. He would be well advised to promptly do so.
I can identify no other fact or circumstance that is relevant in this case.
Father’s time and communication with child
I am not satisfied that the father currently poses a risk of any substance to the child. His time with the child therefore does not presently require supervision. I am further satisfied that, not merely would the child be able to cope with the block period of time which the father contemplates spending with the child over the Christmas holidays, but further, it is likely to provide real benefit to him, in that the father will be able to not only provide routine, structure and discipline for the child, but will also be able to engage in activities with him which the present requirement of his parents being in attendance precludes. This is a child who enjoys physical activity, such as bike riding. The father wants to increase the range of such activities that he can undertake with the child, including fishing and biking. I am satisfied that a block period of time during which the child will be able to undertake such activities with the father over the Christmas holidays, is in his best interests.
I do not overlook that s 60CC(2A) of the Act requires me to give greater weight to the need to protect the child from harm from, amongst other things, exposure to family violence, than to the benefits of him having a meaningful relationship with both parents. Indeed this is a case where that section does have work to do. Nonetheless, even factoring that statutory (and common sense) injunction into the equation, does not persuade me that the father’s time with the child requires either formal supervision (as the mother seeks) or the continuation of the requirement that a responsible adult be present during such time.
Finally, I am well satisfied that a three night, alternate weekend, arrangement is in the child’s best interests, and reasonably practicable. I would so conclude whether or not s 65DAA of the Act is engaged here.
I will therefore make orders as sought by the father (as modified by his written submissions).
Other matters
The father seeks that order 4 of the June consent orders be discharged. That order prohibits the father from attending changeovers. Given that his parents, who to date have been effecting changeovers, live some distance from City G, the discharge of that order seems sensible, although plainly to the extent that the father may be prohibited from being within a certain distance of the mother by a Domestic Violence Order, he will nonetheless need to comply with it.
The father also sought an order that changeovers occur either at the child’s school or, if not a school day, at a specified McDonalds restaurant. During submissions, the parties appeared to agree that non-school day changeovers should occur at the Post Office in City G, which has the advantage (or perhaps disadvantage) of being opposite the Police Station. I will accede to that arrangement.
For her part, the mother seeks to be able to speak to the child on Christmas day, for half an hour between 11:00am and 11:30am. I am satisfied that such an order is appropriate and will make it.
The mother also seeks an order enlarging the current prohibition on the father removing the child from the mother’s care, in school or out of school care, to also cover third persons as authorised by the father. She does so on the basis that, apparently on occasion, the paternal grandfather has sought to take the child from his school. I am not satisfied that there is presently any sufficient basis for enlarging the prohibition contained in order 8 of the interim consent orders made on 17 June 2019.
Finally, the mother seeks an order requiring the father to comply within 7 days with an order made by Judge Willis on 23 September 2019, to file and serve a short affidavit dealing with certain matters. I am not persuaded that there should be an order requiring compliance with an order, and further, I am not satisfied, given the time of year, that it is practicable to require the father to do anything within 7 days of the date of these orders. Rather I am satisfied that the time for compliance with order 4 of the orders of Judge Willis made 23 September 2019 should be enlarged to 4:00pm on 31 January 2020.
Conclusion
For these reasons there will be orders as set out at the commencement of this judgment, including that the father’s Application in a Case filed 8 November 2019 and the mother’s Amended Application in a Case filed 13 December 2019 be otherwise dismissed.
I certify that the preceding sixty nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 19 December 2019.
Associate:
Date: 19 December 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Appeal
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Costs
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Remedies
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