Chandler and Chandler
[2017] FCCA 2489
•17 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHANDLER & CHANDLER | [2017] FCCA 2489 |
| Catchwords: FAMILY LAW – Parenting – both parties allege risk in the other’s household – competing residence applications – both parents Aboriginal. |
| Legislation: Family Law Act 1975, ss.60B(1), 60B, 60B(2), 60CA, 60CC(2), 60CC(3), 60CC(3)(h), 60CC(6), 61DA(1), 61DA(2), 61DA(4), 61F, 64, 65D, 65DAA(1), 65DAA(2), 65DAA(3) Child Support (Registration and Collection) Act 1988, s.116(2) |
| Cases cited: Bondelmonte v Bondelmonte [2017] HCA 8 |
| Applicant: | MS CHANDLER |
| Respondent: | MR CHANDLER |
| File Number: | MLC 1256 of 2011 |
| Judgment of: | Judge Harland |
| Hearing dates: | 24 - 26 July 2017, 3 August 2017 |
| Date of Last Submission: | 3 August 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 17 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Fisken |
| Solicitors for the Applicant: | Perisic Lawyers |
| Counsel for the Respondent: | Mr Kuan |
| Solicitors for the Respondent: | Samantha Ward Pty |
| Counsel for the Independent Children’s Lawyer | Ms Jenkinson |
| Solicitor for Independent Children’s Lawyer | Ebejer & Associates |
CONSENT ORDERS
That the parents have equal shared parental responsibility for [X] born (omitted) 2006 (“[X]”).
That during the New South Wales (“NSW”) school term holidays all other arrangements be suspended an [X] spend time with her parents as follows:
(a)With the parent she is not living with from 11.00am on the first Saturday of the school holidays until 11.00am on the second Monday of the school holidays; and
(b)With the parent she lives with for the remainder of the holidays.
That during the NSW long summer vacation all other arrangements be suspended and [X] spend time with her parents as follows:
(a)In 2017/2018 and each alternate year thereafter with the father from 11.00am on the first day after the school term finishes until 11.00am on the day that is 21 nights later, and with the mother until 11.00am on the day before school recommences;
(b)In 2018/2019 and each alternate year thereafter with the mother from 11.00am on the first day after the school term finishes until 11.00am on the day that is 21 nights later, and with the father until 11.00am on the day before school recommences.
That [X] communicate by telephone/Skype/FaceTime with each parent, when she is not in their care (and the other parent to ensure [X] answers and is given privacy for the duration of the call), as follows:
(a)Each Tuesday and Thursday between 7.00pm and 7:30pm with the parent who does not have [X] in their care to initiate the call;
(b)Each parent be at liberty to attempt to telephone [X] on other days between 3:30pm and 8:30pm, save that such phone call be limited to no more than once per day for a duration of no more than half an hour;
(c)Each parent facilitate [X] speaking to the other parent upon her reasonable request to do so;
(d)Each parent facilitate [X] communicating with her extended family at all reasonable times;
(e)On [X]’s birthday, each parent’s birthday, Mother’s Day, Father’s Day and the birthdays of any siblings or step-siblings in that parent’s home between 7.00pm and 7:30pm.
That all changeovers occur at the Railway Station at (town omitted) and be facilitated by an adult known to [X].
That the mother attend forthwith upon a drug and alcohol counsellor at (omitted) Aboriginal Co-Operative and comply with all lawful requests of said counsellor including but not limited to attending for assessments, treatments and therapies as directed.
That the mother provide to the father from the drug and alcohol counsellor in order 6 the following:
(a)A letter, to be provided via email and/or SMS once each 6 months, stating whether the mother is attending as requested and complying with treatment recommendations, with the first such letter to be sent after one month of engagement with the counsellor;
(b)A report, to be provided via email and/or SMS in the event the counsellor forms the view that the mother no longer requires drug and alcohol counselling and/or treatment.
That each parent ensures [X] attends school each school day whilst in their care unless they have a medical certificate which states [X] is too ill to attend school.
That each parent be restrained by injunction from
(a)Consuming any alcohol or illicit substances during any time [X] is in their care and for 24 hours prior to any periods of time [X] is in their care;
(b)Denigrating the other parent or member of their family in [X]’s presence or hearing, or permitting [X] to remain in the presence of anyone else doing so;
(c)Discussing these proceedings or the contents of any affidavit or report filed in these proceedings with [X], or in her presence or hearing.
That each parent:
(a)Be authorised to obtain copies of all school notices ordinarily provided to parents at their own expense;
(b)Be authorised to attend any school event to which parents are ordinarily invited;
(c)Notify the other as soon as practicable of any illness or injury requiring medical attention suffered by [X] including details of the treating medical practitioner;
(d)Be authorised to communicate with any medical or allied health practitioner treating [X] and obtain any information ordinarily provided to parents;
(e)Notify the other of any change of address or contact telephone number within 24 hours of a change.
(f)That each parent be at liberty to provide a copy of these orders to the mother’s treating alcohol and drug counsellor and the child’s school and treating medical or allied health practitioner.
ORDERS
That from 11 November 2017 [X] live with her father.
That the father forthwith do all acts and things necessary to authorise Ms B to talk to the mother, with the father to provide evidence of his compliance to the mother within seven (7) days.
That within 28 days the Independent Children’s Lawyer shall nominate a counselling service that the parties can participate in to improve their communication skills and their understanding of the impact of the conflict on [X] noting that one or both parents will need to attend remotely.
That the Independent Children’s Lawyer meet with [X] to explain the effect of the orders to her.
That upon compliance with orders 12 and 13 the Independent Children’s Lawyer is discharged.
That the mother is restrained from allowing [X] to come into contact with Mr T.
IT IS NOTED that publication of this judgment under the pseudonym Chandler & Chandler is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 1256 of 2011
| MS CHANDLER |
Applicant
And
| MR CHANDLER |
Respondent
REASONS FOR JUDGMENT
[X]’s born 3 September 2006 (“[X]”) parents cannot agree on parenting arrangements for her. Her mother wants her to continue living with her in Victoria. Her father wants her to live with him in Town A in New South Wales. [X]’s parents agree that because of the distance between their homes (about a 7 hour drive) that it is only realistic for [X] to spend time with the parent she is not living with during school holidays.
Both parents allege that there are risks to [X]’s welfare if she remains in the other parent’s primary care.
The risks identified with respect to the mother concern her alcohol use and violent relationships.
The risks identified with respect to the father are family violence and his willingness and ability to facilitate [X]’s relationship with her mother.
Background
The parties commenced their relationship in 1995 and separated in October 2010.
They had three children together: [Y] born (omitted) 1997 (“[Y]”), aged 20; [Z] born (omitted) 1999 (“[Z]”), aged 18; and [X] born (omitted) 2006 (“[X]”) aged 11.
The mother has a daughter from a previous relationship, Ms A, aged 22. Ms A and her 3-year-old child live with the mother and [X].
The mother has another child [B] from a subsequent relationship who also lives with her. [B] was born on 3 February 2013.
[Y] lives with her partner and two young children. The mother says that [Y] and [X] have a close relationship.
[Z] lives with the maternal grandmother and has done so for the past two years.
On 1 January 2011, the mother issued an application in the Magistrate’s Court of Victoria at (town omitted) seeking a recovery order of [X] and [Z].
The parties entered into final consent orders on 24 May 2011 which provided for the children to live with the mother and spend time with the father during the day until he obtained suitable accommodation, after which it would be alternate weekends and holidays. The only issue that remained outstanding at that time was whether or not the mother should be prevented from allowing the children to come into contact with her then partner Mr D.
The father married Ms K (“the father’s wife”) in 2014. They have been in a relationship since 2011. They live together with two of her two children, [D] aged 15 and [C] aged 14, in Town A New South Wales. The father moved to Town A in September 2011. The father’s wife has two older children who live in Town B with their father and grandmother.
The father does not dispute that he over held [X] in October 2015 and October 2016 and says he had good reason to do so even though on both occasions he failed to bring an urgent application to Court. I will refer to these incidents in detail below.
The mother relied on the Notice of Risk she filed on 9 October 2015, her affidavit filed 10 July 2017 and the affidavit of her father Mr G filed on 14 November 2016.
In her Notice of Risk the mother alleges that the father was violent towards her and her oldest daughter, Ms A. She alleges that the other children are at risk of his violence.
The father relied on [8-23] of his affidavit filed 14 October 2015, paragraphs [10-18] and [21-53] plus annexures to his affidavit filed 23 November 2016, together with his trial affidavit filed 17 July 2017 and the affidavit of his wife, Ms K, also filed 17 July 2017.
During the hearing the parties agreed to a set of orders addressing the time [X] will spend with the non-resident parent as well as other ancillary orders.
The issue that is left for me to determine is whether or not [X] should remain living in Victoria with her mother or live with her father in New South Wales.
November 2016 orders
Judge Curtain made the following orders on 7 November 2016 which are relevant to the final hearing:
1.The Father return the child, [X] born (omitted) 2006 (“[X]”) to the Mother’s residence by 7 pm Wednesday 9 November 2016.
2.The Mother is hereby restrained from possessing or consuming any alcohol until the Final Hearing date.
3.The Mother is hereby restrained from coming into any physical contract with Mr T and/or permitting [X] coming into contact with him.
4.[X]’s time with the Father be suspended and not take place pending the Final Hearing date and there be no communication between [X] and the Father without first obtaining the consent of the Mother.
The injunctions made are broad. Significantly, neither parent made an application to vary the injunctions after the final hearing was adjourned.
The case was listed before Judge Curtain in 2016. On that occasion on 30 November 2016 he ordered a new family report be prepared and recused himself from the hearing. He ordered that the first family report not be admitted into evidence without leave of the Court. No party sought leave to rely on the first family report prepared by Ms Heaton. I have not read that report. Order 1 of the orders he made on 30 November 2016 stated that the orders of 7 November 2016 “remain in full force and effect”.
The mother conceded that she did not comply with either order 2 or 3. She was legally represented and was in Court when the orders were made. Her explanations for her non-compliance were unconvincing.
There is no ambiguity in order 2. When the order was first made the final hearing was a couple of weeks away. The order is extremely broad. The mother’s legal representatives did not raise any issue with respect to an injunction being continued when the final hearing was adjourned.
The same is true of order 3. The breadth of the order is of some concern given that Mr T is [B]’s father and this order would require the mother to arrange for Mr T to see [B] via third parties. Again initially it was envisioned that the order would be in place for a few weeks until the original final hearing, not seven months. There is nothing to suggest that the wife’s legal representatives raised the issue of practicality with that order either at the time it was made or subsequently.
Order 4 also had the effect of severely curtailing the father’s time with [X]. The parties could have come to an agreement by consent. I do not have the benefit of and do not know if reasons were given. However, no party filed an application in the case seeking to vary these orders at any time in seven months leading up to the adjourned final hearing which was allocated on the 30 November 2016 when His Honour extended the injunctions.
The incidences of over holding [X]
The mother gives evidence that the father has over held [X] on four occasions. The first occasion was when he over held all the children in 2011. As a result of which she commenced proceedings in the Magistrates’ Court at (town omitted). The father did not consider this to be over holding as there were no court orders in place at that time.
The mother complains about a second occasion in March 2015. The incident the mother is complaining of occurred at the end of the April school holidays. After hearing the evidence I am satisfied that the father refused to return [X] to the mother’s home. He made the unilateral decision that the father’s grandfather would deliver [X] to the mother at (town omitted). The 2011 orders provide the handovers to be at the mother’s home. Those orders were made before the father moved to New South Wales. It is apparent that the parties were able to negotiate the father’s holiday time in the years following, despite the orders not setting out specific time.
The father says that he could not afford to drive [X] back to the mother’s home. It is apparent that the father did not take into account the fact that he was working and that the mother was not and had a young child. His decision was high handed and would have added to the tension and distrust between the parties. Whilst this incident is not in the same category as the other incidents of over holding it still shows a poor regard for the mother and lacked child focus.
October 2015 incident of over holding
The mother made the current application before this court in 2015 after the father again withheld [X] at the end of his holiday time in October 2015.
In his first affidavit affirmed and filed on 14 October 2015 the father alleges [X] made a number of disclosures to him during her last holiday visit and that after hearing those disclosures he contacted the police and also the New South Wales Department of Family & Community Services. He said he had held concerns with respect to both [X] and [Z] for some time previously.
At paragraph 12 of his first affidavit he says that on 28 September 2015 [X] told him that she did not want to return to the mother’s home because the mother and her partner fought all the time and she was sick of it. She also complained that all they do is visit her mother’s friend’s house in (town omitted). The father says that he asked [X] what they do there and she complained they watch TV with [B] and that the mother and her partner, Mr T, sit in a room drinking and smoking.
He says on Wednesday 30 September 2015 [X] made a disclosure to [C] initially and then to him. [X] alleged that the mother told her not to tell the father and his wife that Mr T and the mother were having an argument and Mr T knuckled [X] in the mouth making her bleed. His wife questioned her as well. [X] said she was standing in between her mother and Mr T and he hit her in the mouth.
The mother was cross-examined about the incident between her and Mr T. The mother says that when [X] was delivered to her father she did not have a split lip but had a nick on her lip. Her version of what occurred is that [X] walked around the corner and walked into Mr T’s knuckles or fingertip. The mother says her lip did not bleed but there was a crack on it. Mother says at the time she was in the kitchen chopping up food. She and Mr T were arguing about the lawns. They were raising their voices. The Independent Children’s Lawyer (“ICL”) suggested to the mother that if Mr T was just gesturing with his hand, it would not have been possible to cause a crack or a nick in [X]’s lip. The mother did not resile from her evidence and said that they discussed it straight away when [X] said “you hit my lip”. The mother said she looked at [X]’s lip and told Mr T not to wave his arms around so much. The mother says it was accidental and was not a case of [X] getting in the middle of them to break up a fight.
It is apparent from the father’s account in his affidavit that he did not speak to the mother directly about any of the concerns he had. It is clear from the father’s affidavit[1] and annexure TC 1 to that affidavit, which is a lengthy email his wife sent to the father’s lawyers, that both the father and his wife asked [X] a series of leading questions.
[1] See for example [15]
The father’s wife was cross-examined about that email. She wrote in that email that she thought it best to prepare [X] as to what may happen at Court the following Wednesday (being the return date of the mother’s urgent application for a recovery order). It is evident from that email that she questioned [X] at length.
The mother commenced the current proceedings on 9 October 2015. The father was served at their home in Town A at 9:15am on 11 October 2015. The father’s wife said that the father was obviously upset when reading the Court papers but they were expecting it. She was asked about what she told [X] about the matter being in Court on the Wednesday. She said she recalled talking about [X] possibly having to go back to Victoria but said she would not have referred to the court proceedings themselves. She then conceded that she and the father talked to [X] about what the father was seeking and what the mother was seeking and says they would have done it together and she would not have talked to [X] on her own.
There is no explanation in the father’s affidavit as to why he waited until 4 October to contact the mother when [X] disclosed the violent incident on 30 September 2015. It is also apparent that both he and the wife questioned [X] over the next several days; this is also evident from the Annexure to the affidavits being an email from the father’s wife to the father’s solicitor.
When cross-examined the father said he believed he contacted his solicitor straight away when [X] made the first disclosure. He said he did not inform the mother of his intention to withhold [X] until 4 October 2015 because [X] was afraid that the mother would come and get her. He conceded that the mother has never come to Town A and he was not concerned that she would do that. The father agreed that he had not tried to communicate his concerns to the mother before sending the text to her. He said he could not afford to start proceedings. He said he did not know how to represent himself.
He conceded that [X] missed two weeks of school. He did not contact [X]’s school and ask for homework. Counsel for the mother suggested to him that was hypocritical to criticise the mother for not taking [X] to school when he allowed her to miss two weeks of school. He said he didn’t think it was two full weeks.
Counsel for the mother showed the father’s wife Annexure TC 1 to the father’s affidavit filed 14 October 2015. It is an email that the father’s wife wrote to the father’s solicitor at 9:51pm on 12 October 2015. Content of that email is most concerning. After having her memory refreshed by reading that email Ms Chandler conceded that she did talk to [X] about the Court proceedings. She agreed that telling [X] about Court proceedings would cause her anxiety and that it is not something she needs to know. She also conceded that her email clearly shows that she asked [X] leading questions. She said at the time she had not undergone the training that she has since undergone with respect to interviewing children and conceded that these types of questions would have been stressful for [X]. In hindsight, Ms Chandler showed more insight in this regard than either of [X]’s parents.
October 2016 incident of over holding
The father over held [X] again at the end of the October 2016 school holidays. Again the mother made an application for a recovery order.
The mother says that she became aware that the father was alleging that [X] had been exposed to incident of domestic violence at her home. She says it was an incident where Mr T attended the home to see [B] and was drunk. She says she asked him to leave but he refused and that to avoid any further incident she removed herself [X] and [B] from property. She says she injured her hand on the chest of drawers and that this became infected which led to her being in hospital.
The maternal grandfather gave evidence that he told [X] to tell her father that her mother was visiting friends in (town omitted) and not that she was in hospital. The mother had originally planned to visit friends in (town omitted) before injuring her hand. The evidence of the mother and the maternal grandfather was to the effect that they were concerned that if the father knew the mother was in hospital he would use that information against her in the proceedings. Their concerns are understandable in the context of these proceedings and the father’s previous actions in over holding [X]. The difficulty with that approach is that it would have made the father even less trusting of the mother and would have heightened his concern about [X]’s welfare in her mother’s household.
Exhibit G is the patient records for [X] from (omitted) medical clinic at Town A. The first relevant entry Dr K makes is on 27 September 2016 where she records that [X] described a “turbulent home environment” with her mother. [X] complained about her mother’s drinking and smoking and that she felt powerless to stop her mother and her partner from arguing. [X] said she was unable to fall back asleep at night worrying about “her mother’s upcoming court case”. She records [X] has “some somatisation, globus sensation and loss of appetite.” She notes that [X] engaged well, was tall for her age and very thin. She also noted that she created a mental health plan and that “involving DOCS also a good idea”.
On 5 October 2016 Dr K records:
Patient comes in for a mental health review under the pretext of examining her throat. She has suffered from tightness in her throat for a long while, which seems to worsen toward the evening, but has steadily lessened over the two weeks she’s been living with her father.
She examined her throat which was normal and records discussing “psychosomatic nature of globus sensation discussed”.
She saw [X] again on 7 October 2016 and records reassuring her about the benign nature of the “globus sensation”.
The father was cross-examined about the visits to Dr K. He said he was present at all of the visits. He could not remember discussing custody issues with the doctor in front of [X] but agreed he may have and that the notes sounded accurate. He said that [X] brings up court proceedings to him and he discusses them with her when she does.
The mother says she took [X] to the doctor for a sore throat prior to [X] going to stay with the father. She said [X] had been complaining about her throat and had problems eating. The mother said she had had similar symptoms herself when she was anxious and thought [X] might be anxious. She conceded that she had not raised the issue of anxiety with the doctor. The mother said she had observed the [X] was not swallowing vegetables and meat, but that she was fine with sweets. She also conceded that she did not talk to the father about this.
The maternal grandfather was cross-examined about the letter the father’s solicitor sent, dated 3 October 2016, which alleged that he had expressed concerns about [X]’s lack of appetite. The maternal grandfather says that the father misquoted him and that what he told the father was that [X] was eating bananas, peanuts, chocolates and sweets but was refusing to eat vegetables and healthy meals stating that she had a sore throat. He says he told the mother that he had been misquoted as soon as he realised what the letter said. He says he texted the father expressing his concern about the father misquoting him and also sending the police to the mother’s home on [X]’s birthday when they had been at home celebrating.
It was clear that the maternal grandfather has great deal of loyalty towards his daughter and feels that she has been subjected to unfair amount of scrutiny in court proceedings. It was in this context that he said quite candidly that he told [X] to lie to her father and say that the mother was visiting friends in (town omitted) when in fact she was in hospital with a serious hand infection. He expressed regret about that decision, and said that he felt sorry for [X], but said at the time he wanted to protect her and the mother.
The maternal grandfather conceded that he made an error in judgment when he told [X] not to tell the father that the mother was in hospital and she was receiving skin grafts. He says he felt sorry for getting [X] to say that, but that was the best thing to do at the time as the mother was nervous about the father as she believes he interrogates [X] a lot and then brings things up in Court.
Dr K next saw her on 18 October 2016. [X] was still complaining about tightness in her throat. She has settled in at school and “Still gets very anxious whenever custody discussed. Many normal experiences like walking on the beach come to her as new and are causing anxiety.” [X] might have been anxious due to the proceedings and the conflict between the parties
The mother did not speak to Dr K after receiving the letter and she says that [X] was already seeing a psychologist through her school. The mother then conceded that she did not follow up on that because [X] felt better and was no longer complaining of having a sore throat.
Exhibit H is a (omitted healthcare organisation) informed consent form for [X] to see the counsellor Ms B. The form refers to family/carers as father’s wife. Under “other” it refers to Ms J and the father’s lawyer. The following page the father has signed the form as [X]’s parent the form is dated 4 October 2016. It does not provide the details of the mother or [X]’s school. The father acknowledged that he did not include the mother’s details on the form. He said it was in error and he did not know why he did not include her. His evidence about this is inconsistent as at first he said that he didn’t think of it as he was thinking of [X], but then said he was worried that the mother might object and that [X] really needed the counselling. He then complained that the mother never told him about any medical issues. I think it is that latter explanation that is the better explanation. This is consistent with his attitude towards the mother. It is also telling that he put his solicitor contact details down and not the mother’s.
Exhibit E is a referral for [X] from (omitted) medical centre for anxiety with a mental health plan dated 20 February 2017. It provides little detail except to say that [X] presented with anxiety and has seen a psychologist in the past for similar symptoms. The notes records that she lives with her mother and does not contain the details of any secondary contact. This exemplifies the fact that both parents have failed to consider the importance of keeping each other informed of [X]’s welfare and ensuring that the other is a point of contact in case an emergency.
The father said that he gave Ms B a brief history by himself and then his wife and [X] were all in the whole of the rest of session. He claims that he was open about his part in the relationship between the mother and him, as well as about his drinking problem. When it was pointed out to him that her notes do not reflect this, he said maybe Ms B wanted focus on the present. It is more likely that if he raised it with her there would be some sort of note to reflect this.
The counsellor’s letter refers to the court proceedings. The father says he told [X] that they had to go to Court again before the session. He said he didn’t think it mattered as [X] knew about court proceedings.
Counsel for the mother suggested to the father that conversations between the father and Dr K and the father and Ms B could have contributed to [X]’s anxiety. He agreed but said the [X] brought it up herself.
The father agreed that he decided not to return [X] to the mother on 27 September but did not tell the mother until 2 October 2016 because he wanted to gather evidence.
The father agreed that he sent the following text to the mother:
[Ms Chandler]. Due to [X]’s voluntary disclosure of information during her time here along with significant health concerns. I am taking protective action as [X]’s father and will not be returning her into your care. I’m doing this in [X]’s best interests and protecting her from any further risk of significant harm.
Again he agreed that upon reading that message the mother would have no idea as to what his concerns were. He said that “as a father and an Aboriginal” he thought it was doing what was best. He further sought to justify himself saying he tried to talk to the mother without success. Counsel for the mother put to him that the mother would have had no idea of what the significant health concerns were. He reluctantly conceded that he could have been more descriptive.
He sent a second text to the mother:
To reduce [X] suffering any further unnecessary anxiety I’m asking you now please refrain from bringing up the subject of her returning to your home when you speak to her. Specifically please do not make demands and tell her that she is to come home to you now. You have done this before which only causes [X] distress. Our daughter does not need to have concerns about court will be made to feel as though she is doing anything wrong. For now all [X] knows is that she is going to stay with us for a little longer. For [X] [sic] say can you please be mindful of what you say when having conversations with her.
The father’s wife also gave evidence that she and the father decided to over hold [X] in consultation with each other and the father’s lawyer. She also conceded that on both occasions she knew that they delayed informing the mother. She agreed that she had not encouraged the father to inform her earlier.
The father’s wife said that it was impossible for the father to talk to the mother given the history between them. It was put to her that it was unacceptable for the father not to tell the mother and her response was “yeah, well” and after pausing she said it is terrible that parents cannot communicate. In the context of the two occasions the father has over held [X] it goes beyond communication difficulties. I find it most concerning that there were no attempts to contact the mother about his concerns. This has the appearance of there being a strategy involved in not telling the mother that [X] was not being returned to her just before she was due to be returned to school the following day. I find that this was strategic particularly in circumstances where the father was in touch with his solicitor and yet did not even instruct his solicitor to contact the mother urgently about these concerns. On the second occasion of over holding in October 2016, the current proceedings were on foot, and the final hearing was a few weeks away. It does the father no credit at all for him to say that he could not afford to bring the matter back to Court. That is patently not the case when the matter was listed for a final hearing in a few weeks’ time. His solicitors were on the record and remained so and prepared documents in response and appeared. I do not accept the father’s explanation. My view was confirmed after hearing the father and the father’s wife’s oral evidence. I accept that the father has genuine concerns about [X]’s wellbeing but there has also been an element of strategy in what he did, particularly on the second occasion.
The father’s wife also agreed that she and the father discussed the text messages the father sent the mother on both occasions before sending them. At first, she said she could not see anything wrong with them, then she conceded that the messages would have given the mother no idea as to what was wrong. The message referring to significant health issues gives no indication as to what those issues are. If it had the mother could have advised that she had also taken [X] to a doctor. This highlights the other issue of great concern in this case which is the parties’ failure to exercise parental responsibility together by discussing and consulting with each other about these important issues. It has added to the distrust that the parents have of each other and has been to [X]’s detriment.
What is clear is that neither the father nor the father’s wife looked at the situation from the mother’s perspective and how they would have reacted if they were on the receiving end. It is particularly concerning that the father acted in the same way in 2016 as he did in 2015. This raises real concerns about the father’s insight and capacity to facilitate a positive relationship between [X] and her mother and other relatives of the maternal extended family. I do not have the same concerns about the mother’s capacity to facilitate [X]’s relationship with her father and the paternal family.
When cross-examined by Counsel for the Independent Children’s Lawyer the father’s wife said that there are some things about [X]’s behaviour that she has observed that she did not consider normal. She referred to her being withdrawn and also to an occasion when she and the father were joking around loudly in the backyard and she saw [X] standing in the doorway with the petrified look on her face. She also referred to [X]’s trouble sleeping and waking during the night.
She was asked about the father’s communication with the maternal family and she said that needs work. Neither of them have telephone numbers of several of the maternal family members.
Exhibit F is a copy of the text that the father concedes he sent to the mother in October 2015 informing her that he was not going to return [X] to her care. It reads as follows:
Official written notice that I am not returning [X] back to your home into your care. You have an unsafe home that is a toxic environment. I have sought legal advice about this matter and I strongly believe that it is in [X] [sic] best interests to be in my care. As you are aware my past attempts to communicate with you directly and my attempts at mediation with you about these concerns were denied and refused by you, so now I refuse to discuss this matter with you verbally all communication in relation to this must be in writing. [sic]
The father agreed that the mother would have no idea as to what his concerns were when she received that text, and the father was asked what attempts he made to corroborate the disclosures [X] made. He said he spoke to the other children but was vague about this.
The mother’s urgent application first came before Judge Curtain on 14 October 2015 where he ordered the parties to attend a Child Inclusive Conference with a family consultant on 15 October 2015. The parties entered into consent orders for [X] to be returned to the mother’s home by 4.00pm on 14 October 2015.
On 4 November 2015 the parties entered into interim consent orders for [X] to live with the mother and spend time with the father for half the Victorian school holidays. The mother was ordered to undertake counselling, including counselling with her then partner, and was also ordered to ensure that [X] attended school unless she had a medical certificate. Mutual injunctions were made against the parties from under the influence of excessive alcohol or illegal drugs 24 hours prior to spending time with [X]. The parties were to undergo random supervised drug testing and the mother was also to undergo liver function testing. The Independent Children’s Lawyer was also appointed on that day.
The father showed little insight into the inconsistencies of his position and his hypocrisy in telling the mother not to raise the issue of [X] returning home when he was once again breaching orders. He showed a high handed and dismissive attitude towards the mother.
He said that the mother and [X] spoke three or four times during the period he over held her and said that it was [X]’s choice and he could not force her. This does not reflect well on him.
He enrolled [X] at (omitted) Primary School, knowing that the mother did not consent. First, he said he did not think it was be a problem because [X] would miss school otherwise. He then acknowledged that he knew that the mother did not agree. He did not come to Court to seek to vary the enrolment. He then said he did not see why he had to seek permission when [X] was his daughter too.
The father says that [X] did not ask to speak to her maternal grandparents or siblings. It is clear from the father’s own evidence that he made no attempts for [X] to remain in contact with members of the maternal family. He says he did not have their numbers and then said he was more concerned with protecting [X]. However, he had to concede that he contacted the child support agency to advise them he had one hundred percent care of [X]. The father was quite evasive and reluctant to answer these questions. His actions do not reflect well on him.
With respect to the October 2016 over holding, the parents’ failure to communicate with each other contributed to the situation. If the mother had informed the father that she had taken [X] to the doctor for her throat he would have known the mother was aware of it and was addressing it. If the father had contacted the mother about his concerns he would have found out she had taken [X] to the doctor. The two doctors could have consulted each other.
There is a dispute between the parents about how much the father allowed the mother to talk to [X] after he told the mother he was not returning [X] to her care.
The mother says the father told her that it was best she didn’t talk to [X] and she was making [X] upset. He also sent an email to the mother telling her not to pressure [X] to return home. The father lacked any empathy or understanding for the mother. When cross-examined the mother agreed she told [X] she was meant to be coming home to go to school. The mother says [X] told her the father said she did not have to come home. The mother said she told [X] that it was not up to her father.
The father and the ICL are critical of the mother talking to [X] about wanting her to come home, after the father over held [X] in October 2016. I do not share that criticism. It must have been incredibly distressing for the mother; particularly given that this is the second time the father had over held [X] and required her to take court action.
The father again claimed that he did not have the money to bring an application to the Court. I do not accept his explanation. The proceedings were on foot. He had the same solicitors he had the year before. The matter was coming up for final hearing in a few weeks’ time and the father knew the proper process but again it was the mother who had to bring an urgent application.
The father claims to have respect for Court orders but his actions suggest otherwise in November 2016. Judge Curtain suspended his time. Counsel for the mother suggested this was because he breached the orders again. The father said he thought he heard His Honour say that he was suspending the orders because he thought the father was coaching [X].
The father’s wife said she saw a Facebook post from her daughter [C] of a letter handwritten by [X] as they were driving home after Court. She and the father were travelling in their car on the way home after court. Whilst in the car she made a post stating that everything would be okay. There is nothing wrong with that. What is of some concern is that neither the father nor his wife had any difficulty with the post being made. On reflection, the father’s wife conceded that it did greatly upset [X]’s siblings. As occurs all too often in family disputes in the age of social media, warring families do not think of long term consequences of posting deeply personal matters on social media. It is so easy to post things within seconds. It is not easy to permanently delete the posts. All too commonly people other than the intended audience see these posts. This is not a criticism of [C]. She was 13-year-old child. However it should not have required the mother’s solicitors to write to the father’s solicitors to require the post to be taken down before the father and his wife took action.
The father agreed that the post was not taken down until the mother’s solicitors requested it. He then talked about the children writing on the walls. He said that he can’t control what his stepdaughter posts. It is clear from his evidence that he did not see a problem with that. It is a lack of appropriate role modelling on his part and a lack of insight. It is telling that the required solicitors becoming involved for the post was taken down and shows no thought for how other family members would react to see such post and having very personal matters it on Facebook.
It is clear that on both occasions in October 2015 and October 2016 the father waited until the day he was due to return [X] to inform the mother that he was not going to return [X]. The mother complains that the father did this deliberately. I think there is some real force in the mother’s complaint, particularly with respect to the second incident.
The father says that he does not always believe [X] whenever she says something that is in conflict with her mother. I do not accept that. Whilst I do not think the father was deliberately coaching [X], I think he was looking for problems and that [X] would have been aware that he wanted to hear about problems in the mother’s household. Despite his protestations to the contrary, I think the father would take the same actions again that he did in October 2015 and October 2016.
The Mother’s alcohol use
The mother’s alcohol use is a significant issue of risk in this case. The mother was cross-examined about this. She admits she had a problem with alcohol but says it is no longer a problem and has not been since at least early last year, if not earlier. Counsel for the ICL asked the mother how much she was drinking at the time she had problem. The mother says she was drinking between 3 to 6 glasses of wine once a week or probably closer to 2 nights a week. She said this was normally about 2 and half bottles of wine each week.
The mother was asked about [X]’s report to the Family Consultant that the mother thinks that she only has a couple of glasses of wine but she has three or four. The mother denied that it was possible that she loses track of the number of glasses she is having. The mother also denied [X]’s allegations that the [X] has had to feed [B] dinner as the mother was drinking. The mother says that [X] has asked on occasion to make spaghetti and toast or Weet-Bix for [B] as [X] likes to help in the kitchen and the mother supervised the preparations.
The mother was cross-examined about the exhibits with respect to her hospital admissions. The mother said that the hospital has not yet ruled out if her alcohol use has affected her pancreas. The mother says she has cut down her drinking dramatically and has phoned the drug and alcohol counselling a couple of times late last year. The mother says she now drinks may be three glasses of wine three times a month. The mother’s evidence with respect to alcohol use was inconsistent.
Exhibit B is a bundle of colour photographs printed out from a Facebook page showing the mother and various other people in photos. The mother is not in all of the photos tendered. The purpose of the tendered photos is to suggest that the mother was out drinking alcohol with friends a week before the final hearing. The mother was cross-examined about the photos. The mother says she went out with friends the week before the trial. She says she was drinking lemon lime and bitters. On 18 February 2017 she went out with [Y] and her sister. There were photos from this outing posted on Facebook. The mother says she probably had a couple of beers.
Counsel for the father submitted one of the photos shows the mother’s hand around a glass. The photo shows her hand near a glass but it is not clear what is in the glass. There is also a photo of the mother next to a friend and holding a glass of some sort but again this is not clear what is in it. It is possible that it was alcoholic, but it could have been non-alcoholic. Counsel for the father referred to another photograph and said that it showed the mother holding some sort of bottle; however it is clear from the photo that it is not the mother holding the bottle but a friend with blonde hair who is standing behind her.
Exhibit C consists of pages marked with purple tags by the Independent Children’s Lawyer from (omitted healthcare organisation) containing hospital records of the mother.
The first tagged page is an extract from the Department of Emergency Medicine (omitted) Hospital patient record dated 18 September 2016 for the mother. The mother was cross-examined about the entry under the heading the drugs, alcohol, family and social history. It notes that the mother lives with five kids and states she “drinks heavily ‘two bottles of wine’ at least twice a week.” The mother says she recalls telling the doctor she drinks three to four glasses of wine towards the end of the week. The mother says that she would have said that she drank two bottles of wine a week rather than two bottles of wine twice a week. Counsel for the ICL asked her if the doctors were wrong in their recording of the information. The mother said she doesn’t remember everything she said because of the pain she was in at that time.
The next tagged page is a patient record dated 2 August 2016 for the mother which notes dispatch calls with respect to asthma; main complaint abdominal pain, query pancreatitis. Further notes show that the pain was similar to past episodes of pancreatitis and may have been caused by eating deep-fried foods the previous day with wine. Under the heading ‘principal presenting problem’ the record notes that the mother had two previous episodes of pancreatitis in March 2015 and April 2016 and also says they were alcohol related. The mother agreed that they told her it was alcohol related and also told her it was food related.
The final flagged extract is an extract of patient history dated 7 April 2016 which says under pre-existing history: “Pancreatitis; alcohol abuse last drank bottle of wine yesterday. Usually drinks 6 bottles of wine a week; asthma, well-controlled”. The mother disagreed with the accuracy of this statement. She says that she said she drinks four to six glasses of wine a week, not bottles. She says the entry is not accurate. It records her asthma is very well controlled when it is not.
Counsel for the ICL then asked if the mother’s position remains that she does not did not have a drinking problem in the period April to September 2016. She reluctantly conceded that her drinking was problematic given the doctors told her it affected her pancreatitis.
Ms A told the family consultant that the mother is an alcoholic. When the mother was asked about this she said that Ms A calls anyone who drinks an alcoholic. When Counsel for the ICL pointed out that Ms A did not make the same comments about the father, the mother said that Ms A did not have time to tell the family consultant all the things that she want to tell her. The mother says that that both she and the father had drinking problems when they were together.
The maternal grandfather says that that the mother has never had a drinking problem. He said he knows that she does not drink during the day. When Counsel for the ICL put to him that he doesn’t really know how much she drinks because is not living with her, he said that everyone knows she doesn’t have a drinking problem. He said that drinking once a day is not a drinking problem unless you are doing it every day of the week.
Mother’s concerns about the father
The mother says that [X] has told her about arguments with the father and his wife, and referred to an incident which she says [X] told her occurred at the home of friend of theirs called Mr R. She says the father was drunk and wanted to drive home. He argued with his wife that he wanted to drive. The mother says [X] told her that the father threw bottles of alcohol at the car which smashed and cut [X] on the leg. The mother says that she has tried to discuss issues with the father but he refuses to even look at her when she speaks and will only communicate by text. That is consistent with his own evidence and the attitude he showed the mother in the witness box.
The mother says she was contacted by the Department of Health and Human Services (“the Department”) earlier in the year. The Department was briefly involved with the family before closing their file. She says the Department wanted her to remain engaged with CASA and to ensure that [X] attended school regularly, as well as any medical and dental appointments. The mother says [X] has been attending school regularly and the school records indicate a significant improvement in that regard. She also says that she has taken [X] to the dentist and she has a follow-up appointment for fillings.
In the mother’s affidavit the mother says that she is engaged with CASA and is receiving ongoing support and assistance from them. She did not provide any particulars. She also does not address the injunctions made by Judge Curtain on 7 November 2016. It is concerning that these issues were not addressed.
The mother says that [X] has reported to other family members, including the mother’s sister and her husband and [X]’s older sisters that there was violence in the father and his wife’s home. She conceded that none of them were on affidavit and that she did not report that to the family consultant. She said that they did not have much time to talk to the family consultant before they were cut off. There is no evidence to support the mother’s contention that there is violence in the father’s household.
The mother says that [X] made reports to the GP, the family consultant, and to the Department worker about problems in the mother’s home because she was questioned by the father and his wife. The mother said that although the older children have gone to live with their father at some point, [X] is much younger than they were. She says that if [X] came to her at age 14 or older wanting to live with the father the mother would say she could go, but she says at this stage [X] is too young.
Older siblings
[Z] went to live with the maternal grandmother when he was in Year Nine. The mother says [Z] hated (town omitted).
[Y] moved out of mother’s home the first time when she was 14 and went to live with the mother’s sister. The mother says she moved back and forward between the two homes but primarily stayed with the mother’s sister.
Ms A moved out when she was about 16 and initially went to Town A but then went to live with the mother’s sister. The father agrees that he has not spoken to Ms A for a couple of years. The father thinks that she could have been lying about living with the mother. He said he did not know if she was lying when she reported to the family report writer that the mother’s drinking is reduced.
The father agreed that [Y] and [X] have a close relationship. The father asked [Y] to write an affidavit in support of his case. He said he just asked her to write what she had seen and asked her to send it to his solicitor. He claims that he did not read it and that his solicitor told him the affidavit was rubbish and threw it out. It seems extraordinary that he would not have wanted to see what she had written. The father could see no problem with asking [Y], even though an adult, to provide an affidavit in court proceedings and said that [Y] wanted to do it. He denied putting her in a difficult position. The father again showed a lack of insight.
The father says he has no relationship with the maternal grandmother and that he and [Z] have a tumultuous relationship. The father was asked about [96] of the family report where Ms A claims that he physically harmed when she was 14. The father said he had heard that before and denied physically harming her and said it was just a normal verbal altercation.
The maternal grandfather
The maternal grandfather gave evidence in support of his daughter’s case in the light of his affidavit sworn and filed on 14 November 2016. His evidence is that the father was jealous and controlling during the parties’ relationship.
The maternal grandfather was cross-examined about his evidence that the father refused to sign a passport for [Z] when he want to take [Z] and his cousin to (country omitted). He said the father told him that he would sign the passport once [Z] showed him some respect. At the time [Z] was not on speaking terms with his father as he had assaulted [Z] and kicked him out of the home. He said he asked [Z] to talk to his father to ask him to sign the passport application, which he had heard through the family that [Z] had done so, and that is when the father called him about it. This is another example of adults failing to protect children from the dispute. It would have been much better if the maternal grandfather had contacted the father directly about the passport rather than requiring [Z] to approach his father, particularly given his evidence that [Z] was not on speaking terms with his father at that time and was alleging that his father assaulted him.
The maternal grandfather was adamant that the mother does not have a drinking problem. He seemed quite surprised and perplexed when told that mother had given evidence that she did have a drinking problem in the past. He then said that he is not with her all the time but he knows she does not drink during the day, she drives her car, and that she drinks similar amounts to his wife. He insisted that the mother drinks responsibly and that he has never seen her intoxicated.
He says he goes past the mother’s home if he is travelling to (town omitted) that on average he calls in three times a fortnight. His work is fairly close to her home and she also visits him. He has a close relationship with the children. He gave evidence that he is not seen Mr T in about a year.
Police welfare checks
The mother also complains of the father arranging for police to carry out welfare checks. She first complains that the father contacted the police to conduct a welfare check in early 2015. She complains that the father alleged that there had been a domestic violence incident at the home and that she was woken by the police shining torches in her face. She gave oral evidence that her bedroom was at the front of the house, that she heard the police come in, and she said the police wanted to check that she was uninjured.
The father asked the police to conduct welfare check on (omitted) 2016. The mother says that this occurred during [X]’s birthday celebration at her home. The maternal grandmother was there as well. The mother says [X] became very distressed.
[X]’s school attendance
Exhibit D is the (omitted) primary school student absence details reports for [X] which notes two unexplained absences on 29 May 2017 and 9 June 2017. She was cross-examined about [X]’s 2015 attendance record. [X] had 39 unexplained absences. The mother says these were for medical appointments and [X] being unwell. The mother says [X]’s school attendance has improved. The school records for the first half of 2017 show that [X] had four unexplained absences.
The father’s evidence
The father’s evidence in cross-examination was telling with respect to his attitude towards the mother. He said he was not seeking an injunction restraining the mother from contacting Mr T because he thought the mother was “more of the perpetrator”. In cross examination he said that he felt sorry for Mr T and he was not like the mother’s previous partner. This is inconsistent with his concerns that Mr T had involved [X] in a violent incident where her lip was split.
The father said that [X] brings up court proceedings with him and that he discusses them with her. He says he asks his solicitor and his solicitor advises him what to say.
The father would not accept the proposition that [X] may exaggerate her stories and said she would not do this with respect to the mother’s alcohol use.
The father says that where [Y] refers to him drinking and being violent in the family report that [Y] is lying about him being violent. He concedes the drinking. However, the father says he last had a drink at his wedding in 2014.
The father would not concede that he has persistently breached Court orders. He said he was protecting his child. He was insistent that he did not over hold the children on the first occasion as there were no Court orders in place. He said he brought the children straight back to the mother after he received a letter from her solicitor. He collected [Z] from school and took him to the police station to make statement because he says [Z] told him that Mr D, a previous boyfriend of the mother, was threatening to assault him. He accepted that this was a breach of the orders at that time in 2011 because he could not remember if he returned [Z] voluntarily or if orders were made requiring him to do so. [X] was about four years old in 2011 when the father over held the children for about five weeks from mother. The father did not agree that [X] would have been distressed as he said [X] loves him just as much she loves the mother. His answers in cross examination about the over holding incidents showed a real lack of insight.
The father said that he had previously heard things that concerned him about [X]’s welfare in the mother’s household but that before October 2015 he did not have enough evidence to do anything about it.
The father’s position is that the change of residence should happen as soon as possible and should not wait until the end of school term.
Evidence of the father’s wife
The father’s wife filed an affidavit on 17 July 2017 and was cross-examined.
She says she and the father commenced a relationship in May 2011 and started living together with two of her children, [D] and [C], in November 2012. Currently they live with the father’s grandfather at his home in Town A.
She has two older children who live with their father in Town B.
She confirms that they have not spoken with Ms A since November 2014 when Ms A had an argument with the father.
Her affidavit makes vague allegations without providing details. Examples of these are at [16] and [22][2].
[2] Affidavit of Ms K filed 17 July 2017.
She gave oral evidence that the father told her that the mother was the aggressor in their relationship and that both parents had a drinking problem.
Telephone communication
Both parties complain about the other parent not facilitating telephone contact.
It struck me that both parents’ complaints with respect to telephone contact with [X] are remarkably similar. Both are quick to accuse the other of preventing telephone contact and of being obstructive. However, both have given similar evidence that when [X] is in their care there are times [X] does not want to speak to the other parent as she is in the middle of an activity and asks if she can call later. There is nothing particularly unusual or sinister in that.
The wheel brace incident
Although this took place in July 2011, some focus of the hearing was on what I will refer to as the wheel brace incident. At paragraphs 11 and 12 of the father’s affidavit filed 23 November 2016 the father addresses the wheel brace incident.
The father says the incident took place when he and the mother argued when he attended the home to collect some of his personal belongings at handover of the children. He says that whilst he was putting [X]’s bags into the car, the mother rushed towards him with a closed fist. He picked up the wheel brace out of his boot and told her that if she did not stop he would smash her car. He says that his wife intervened and deescalated the situation.
The father says that [Z] and [X] were in the back seat of his car and claims that they could not have witnessed the incident. He says he did not threaten the mother with the wheel brace. He accepted that his response was wrong and disproportionate. He showed a lack of insight when he was keen to make the distinction between threatening her with the wheel brace and threatening to damage her car. He said he was in pointing at her but threatened to damage the car. He also sought to justify his behaviour saying that she was abusing him. He reluctantly accepted that the mother would have been scared but thought the children would not have been scared as they would not have seen anything from the back seat of the car.
The father’s wife considered that the mother started the incident. She says both parents raised their voices. She agreed that on any view that the mother was not armed. She also conceded that even on her version of events the father’s reaction picking up wheel brace was disproportionate. She agreed the children would have been scared. She did not agree that the children would have been concerned for their mother’s safety as the father did point the wheel brace towards her. Once it was put to her that the father’s evidence was the children were not scared, she then changed her evidence to suit the father’s version of events that as the children were in the back seat of the car they would not have seen anything.
The mother denied that she was the instigator of this incident. She says she did not approach the father but that he approached her with the wheel brace in his hand. She says the father’s wife ran to the father and held him back.
Family Violence is broadly defined by s.4AB of the Family Law Act 1975 (Cth) (“Family Law Act”). Threats to damage property are family violence. On anyone’s version, this was an instance of family violence which the children were exposed to. I do not accept that as they were sitting in the car they were oblivious to the conflict.
The Family Consultant
Ms S prepared the family report. She inspected the subpoenaed material and records that the police attended the mother home for a number of family violence incidents between the mother and Mr T between 26 October 2015 and 2 January 2016. [X] was present on some occasions. This supports the complaints [X] made to her father and his wife about this.
She refers to the Department’s subpoena which refers in an intake record to the mother’s alleged alcohol use and relationships “masked by family violence”.
She also refers to subpoenaed material from Dr K and (omitted healthcare organisation) and the notes from Ms B, the social worker who saw [X].
Both parents raised concerns about the other parent possibly using marijuana but neither was cross-examined about this except the mother with respect to the ‘bong bottle’ with ‘bong water’. The mother told the Family Consultant that she last had “one puff” of marijuana before she became pregnant with [B] and said that the father had also used and grown marijuana in the past and that she had heard he still did. The mother said in cross-examination that the bong bottle had been in the garage for 5 years. If that was the case all the water in it would have been evaporated.
The family consultant interviewed Ms A who told her that she and her son [E] live with the mother at her home. She said she separated from [E]’s father in December 2016 and is on the waiting list for public housing. Although not her biological father, she said until they had a falling out three years ago she always considered the father to be her father.
Ms A did not have safety concerns about [X] in her father’s household, but said she would be better staying with her mother and that her siblings are nearby. She said she could relate to her [X] liking Town A, as she did when she was a child, and referred to there being cousins in Town A close to [X]’s age.
At paragraph 19 the family consultant records that she asked Ms A about the mother’s alcohol use and Ms A replied “it’s true, my mum is an alcoholic.” She went on to say that she thought the mother was drinking sensibly currently.
Ms A also said that Mr T does not live at the home though the mother sees him away from home so that he can see [B], who is his son.
The Family Consultant also interviewed [Y]. She lives with her partner and two young children. [Y] acknowledged that [X] wants to live with her father but thought that [X] does not have a realistic idea about what that would mean.
The report writer records [X] telling her at [119] of the family report “I really want to live with dad but mum thinks that he is trying to take me off her.” [X] then referred to [Z] being able to live with their father when he was 14. The mother said that [X] may have overheard her speaking about her concerns to [Y] and Ms A.
The Family Consultant said she did not talk to [Z] partly for operational reasons and as she thought he had the least contact with the mother and father. She agreed that he may have been able to give her more of a picture of the family.
It is a limitation of the report that she did not interview [Z], particularly given the fact that he has lived in both homes and in light of allegations that the father was violent towards [Z]
The Family Consultant said when preparing her report she looks for collateral sources of information, parent interviews, observations and reality testing. She had not seen the letter [X] wrote, and that [C] posted to Facebook, until she was shown it during cross-examination. She said that the letter strengthens her views. [X] is dissatisfied with her current living arrangements. She did not think that [X] was coached or brainwashed. She did keep in mind that [X] could have been embellishing. She concluded that regardless of this there is still a problem in her relationship with her mother. The Family Consultant said that [X] had a clear sense of what she thought and had a clear sense in her mind that she wanted a change of residence.
Counsel for the ICL put three possible options to the Family Consultant, being:
(1)[X]’s views are based on her real experiences of life in the mother’s household;
(2)[X]’s views are because someone has encouraged her to have those views; and
(3)Not all of [X]’s views are based on the truth but she wants to live with her father so she is engineering it.
The Family Consultant said that even if [X] were embellishing, it is important is it to listen to her, as [X] has made several cries for help. It is possible that she will not ask adults for help in the future, and if she is ignored [X] may feel powerless. She may lose trust in both her parents. The subpoenaed material supported her views. The Family Consultant said that the risk factors were not the only factors informing her recommendations.
Whilst [X] is quite a bit younger than when her older siblings moved between their parents’ homes she is aware that they had been able to do that. When the Family Consultant spoke to [X] she had not seen her father for nine months. She said that [X] showed an understanding of what the separation from her mother and younger brother would mean for her. She spoke about missing them and spoke about positives in her relationship with her mother. She will experience some grief if she moves to her father and it will be important that she maintains contacts with her mother and other maternal family members.
Assessment of risk
The assessment of risk needs to be assessed in the context of the agreement the parents and the ICL reached with respect to [X] spending a greater portion of school holidays with the parent she does not live with during school term.
It is abundantly clear from the hearing that both parents lack insight into the damaging effect on [X] of involving her in adult disputes.
One of the risks identified is the mother’s use of alcohol. I think she drinks more alcohol than she is willing to admit or perhaps can admit to herself. She was not challenged about undergoing testing as required. The hospital records are suggestive, but not definitive, of the mother’s alcohol use being problematic. I do not have the impression that she has committed to alcohol counselling. She provides little evidence in this regard which is surprising given her knowledge that this is an issue of concern with respect to her parenting capacity.
The family consultant recorded the mother telling her that she has a glass of wine once or twice a week at [40] of her report.
The father thinks that Mr T still lives at the home. The evidence does not support that. However, it is clear that the mother has allowed [X] to come into contact with Mr T. I have some concerns about the wording of the injunction preventing the mother from coming into contact with Mr T at all. This is unworkable given the fact that he is [B]’s father. It seems that this was not raised by anyone during the months it was in place.
The mother conceded that she breached the order by allowing Mr T to stay overnight. With respect to the restraint on possessing alcohol, the mother said she thought the restraint was on drinking alcohol to excess. Counsel for the ICL pointed out this is what she sought, but that it was not the order that was made. Counsel for the ICL put to the mother that the orders were made for [X]’s protection and how can the Court accept that she will abide by Court orders now when she hasn’t previously. The mother said that she was a good mother and both parents could be criticised for not complying with Court orders.
It shows an extremely poor lapse in judgment on the mother’s part that she allowed Mr T to stay at her home overnight. This is particularly so because [X] was in her care. It is clear that her relationship with Mr T has been marked by violence to which [X] has been exposed.
It is the mother’s own evidence she has history of violent relationships with men. She says the father was violent, Mr D was violent, and Mr T was violent.
The impression I have of the father is that he has been quick to shut down communication with the mother. He told his wife that the mother was the perpetrator and his negative attitude towards her was obvious. He was also quick to deflect responsibility and where he had to make an admission about his own conduct he was keen to say that the mother behaved in the same way.
He had to concede that the mother did call him to talk about her concern s about what [X] told her happened at the river, but he was quick to say that was the only time. I do not accept that.
The concerns with respect to the father primarily centre on his breaches of Court orders and his capacity and willingness to facilitate [X]’s relationship with her mother and extended maternal family. In addition, it is concerning that he has involved [X] in the conflict.
Assessment of the parties
My impression of the father is that he avoids conflict with the mother and instead takes a high-handed and passive aggressive approach. He is dismissive of her and says that he has attempted to communicate with her over the years, but it does not work very much and gives the impression that he sees it as pointless. He also was keen to point out that the mother did not communicate with him about various issues.
An example of the parties’ inability to communicate is with respect to Christmas 2016. The November 2016 orders clearly suspended the father’s time unless something was arranged by consent. The mother says she told [X] to tell the father that she consented to [X] visiting him for Christmas and that he could come and pick her up. The mother says that the father told [X] he couldn’t come because the Court orders said he couldn’t. The mother agreed that she did not try communicating with the father directly but only through [X] on this issue.
I am satisfied that the father withheld the children in 2011 and over held [X] on two further occasions in October 2015 and October 2016. I am also satisfied that he unilaterally refused to return [X] to the agreed drop off point in the Easter school holidays in 2015.
Submissions
The ICL supports a change in residence. Counsel for the ICL urged caution in accepting the mother’s evidence with respect to her drinking. Her evidence was that the mother inconsistent and either she lacks insight into the extent of her drinking or has hidden it. I accept that submission.
Whether it is accurate or not, [X] perceives that her mother is drinking every day and that her drinking is problematic.
Counsel for the ICL raised the fact that both parties have failed to comply with Court orders and both have taken unilateral actions with respect to [X]’s medical care.
She expressed concern about the fact that the mother was aware that her drinking was an issue of concern since at least October 2015 yet has done little to engage in drug and alcohol counselling and did not comply with the injunction not to possess alcohol.
She also submitted that the reality for [X] is that the children in her family get to decide which parent they want to live with and have been able to move between their parents. It is to the credit of her parents that [X] has a strong relationship with both parents and speaks positively of both.
The risks in the mother’s household include the mother’s drinking and her history of being in relationships with violent men. Both the mother’s lack of evidence with respect to her drug and alcohol counselling and the fact that she recently allowed Mr T to stay overnight at her house are of concern. It is true that the mother has made some gains, including improving [X]’s school attendance.
[X] is used to her family being in two different states. Nonetheless, changing her living arrangements and school is a major change to which she will need to adjust. She had a small taste of it when the father over held her in October 2016 and enrolled her in the local school, but that was only a period of weeks.
Ultimately, Counsel for the ICL submitted that the issue of cumulative harm is reduced when the most time [X] would spend with her mother in a block period is 3 weeks. The least worst alternative is to change [X]’s living arrangements.
The father supports the ICL’s submissions.
Counsel for the mother submitted that the ICL and the father’s cases are premised almost exclusively on risk, yet the orders they have consented to suggest that the risk is not so great. Neither has sought conditional orders such as requiring the mother to undergone random screens.
Counsel for the mother submitted that although the mother’s evidence with respect to her drinking was inconsistent, the evidence of the maternal grandfather was not. The difficulty with this submission is that my impression of the maternal grandfather is that he is either unaware of the extent that the mother is drinking or is in denial. Ms A is living in the mother’s household and she told the Family Consultant that the mother was an alcoholic.
She also points to the fact that during the past nine months [X] has been exclusively in the mother’s care her school attendance has improved, and she also referred to the recent Department investigations where harm was not substantiated. She says the Court should be concerned about the father’s attempt to have [Y] give evidence in support of his case.
Counsel for the mother submits that the risks in the mother’s household can be ameliorated whereas the risks in the father’s household cannot. Whilst she does not suggest that the father was malicious when he over held [X], it is clear that he has a fixed and unshackled view of the world and especially of the risks in the mother’s household. He only trusts himself and what [X] tells him to assess any risks. He hears what he wants to hear. He lacks insight and inappropriately involves [X] in the adult discussions. He showed no insight into the impact of the breach of orders and the resulting stress and uncertainty to [X]. The father’s lack of insight on reflection is of concern to the Court and this submission has some force to it. There is also the real concern that the father will not facilitate time and will not facilitate [X] keeping in contact with extended members of her maternal family and her siblings.
Legal principles and their application to the facts of this case
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act. The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act 1975 indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
There are 13 additional considerations which are set out in s.60CC(3) which I will refer to later in these reasons. These considerations include the children’s views and the weight to be given to those views, the children’s relationships with both parents and significant other family members, the parent’s capacity to provide for the children’s physical, intellectual and emotional and psychological needs, but the likely impact of change in the child’s children’s circumstances on them, the parents attitude towards the responsibilities of parenthood
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount.
Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the children to make an Order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the children spend equal time, and if not equal time then substantial and significant time with each parent.
For a parenting Order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
In MRR v GR [2010] HCA 4, the High Court of Australia (“High Court”) found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an Order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an order for equal time.
Parental Responsibility
The parties agree that they should exercise equal shared parental responsibility. I am concerned that the parties are currently unable to communicate effectively. They have failed to consult with each other in the past which has contributed to the current conflict.
Without professional assistance the parties are unlikely to be able to improve this. For this reason I asked the Independent Children’s Lawyer to look into what assistance is available for the parties before the hearing resumed part heard.
The parties would also be assisted by using one of the online parenting applications such as MyMob, 2houses or Our Family Wizard.
Spend time with arrangements
The parties have agreed on the spend time with arrangements for the non-resident parent, regardless of whether that is the mother or the father.
The parties live approximately seven hour drive apart. This makes equal time or substantial and significant time impractical. As the parties concede this, it is unnecessary to consider this further.
The parties agree that the non-resident parent should have 10 days of the term school holidays. This is significant because it is relevant to the assessment of risk.
[X]’s views
[X] has consistently expressed clear views that she wants to live with her father. She has not changed her views since the proceedings began. The mother relies on the recent High Court decision of Bondelmonte v Bondelmonte [2017] HCA 8 (“Bondelmonte”) and draws attention to [34] – [35]:
The focus placed by the father upon the prescribed consideration stated in s 60CC(3)(a) tended to elevate the views expressed by a child to something approaching a decisive status. In some cases, it may be right, in the exercise of a primary judge's discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child's best interests.
The terms of s 60CC(3)(a) itself may be taken to recognise that, whilst a child's views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child's age or maturity and level of understanding of what is involved in the choice they have expressed. Children may not, for example, appreciate the long term implications of separation from one parent or the child's siblings. Section 60CC requires that attention be given by the court to these matters.
Counsel for the mother submitted that a glaring deficiency in the family report is the lack of consideration of the implications for [X] of being separated from her mother and her siblings which was not explored with [X]. I agree it is a limitation of the family report. She also refers to the father’s conduct which was relevant consideration in Bondelmonte. She emphasised that the father’s pattern of over holding [X] and that he did not once make an application to the Court even when proceedings were on foot and he was legally represented. The father relies almost entirely on reports from [X] and makes little attempt to discuss issues of concern with the mother and her extended family before taking unilateral action. The mother does not submit that the father does not hold genuine concerns but points to there being real consequences for [X] if he does not facilitate [X]’s relationship with the mother and her maternal family.
Counsel for the mother said that given that neither the father nor the ICL proposes that the mother should have supervised time or daytime only time, the risks in her home are not so great to justify changing [X]’s long established primary care arrangements.
Counsel for the mother says that [X] should remain living with the mother because she has addressed the issues of risk which relate to her use of alcohol and violent relationships. She says she has successfully addressed [X]’s poor school attendance. She acknowledges that [X] has expressed a wish to live with the father to the Family Consultant. Counsel for the mother relies on Bondelmonte with respect to the weight that should be placed on her views and says that it is necessary to look at her maturity and understanding that she may not understand the long-term implications of living with her father particularly the separation from her siblings.
She argues that [X]’s views need to be seen in this context and also points to the father’s fractured relationship with [Z], [Y], and Ms A. There is scant evidence with respect to the siblings’ relationships with their father. Whilst he concedes his relationship with Ms A has broken down he says he continues to see [Y] periodically and [Z] visits during the school holidays.
Parents’ attitudes to the responsibilities of parenthood
The father’s attitude to the responsibilities of parenthood and the importance of facilitating [X]’s relationship with her mother and members of the extended maternal family is of real concern.
The father acknowledged that if [X] lives with him in Town A she will miss her mother and [B]. He said that in [X] knows half the aboriginal population in Town A. The father shares his home with his wife, two of her children, and his grandfather who is a respected community elder. He said that [Z] comes to Town A during school holidays and [Y] has also travelled to Town A occasionally. He said that Ms A could come if she wanted.
The father said that he does not mind bringing [X] to visit the mother and [B] for extra weekends if he can afford it. I think it is unlikely that the parents will be able to arrange additional times outside of Court orders.
Counsel for the ICL asked the father how he would react if the [X] said she wanted to go back to live with the mother. He said that if it was safe he would let her go and that [Z] had gone back. He thought he would be able to see the difference in the mother and that he would be happy for [X] to return to the mother. The father said his concern is with respect to the mother’s drinking and violence. Counsel for the ICL asked him what he would do if [X] lives with the mother and makes disclosures again. He said he might need to start saving in case he would have to bring an application to the Court.
[X]’s relationships with other family members
The father says he has no difficulty in facilitating members of the maternal family contacting [X]. He says he only has problems with the maternal grandmother. He says he would facilitate Skype for any maternal family member.
I am not confident that the father will be as willing to do so if [X] comes into his care.
The father’s wife agreed that the father’s communication with the maternal family needs work. She said she does not have the maternal grandmother’s phone number. She said she would be proactive in ensuring that the maternal family has [X]’s phone number and contact them. I accept her evidence. She showed the most insight.
She acknowledged that the move would be an adjustment for [X] but that she has many cousins and friends in the area. She says she and the father would re-engage with [X]’s counsellor to ensure she has supports.
[X]’s Aboriginal cultures
Section 60CC(3)(h) informed by ss.60CC(6) and 61F emphasises the importance of recognising the rights of Aboriginal children to maintain connections with their kinship networks and culture. A recent decision in Backford & Backford & Anor [2017] FamCAFC 1 by the Full Court where they dismissed an appeal the Full Court was satisfied that the trial judge properly considered cultural issues in the context of serious allegations of risk.
I am satisfied that [X] will continue to have the opportunity to be immersed in her culture.
Both parents are Aboriginal. The father says this is more important to him than it is to the mother and that he is better able to ensure that [X] is immersed in her culture.
Despite this being an important issue for the parties, neither party provided much detail in their affidavits about their cultures and how they immerse [X] in it. The Family Consultant elicited more information on this topic from both parents.
The father told the Family Consultant that he does not think the mother provides the same cultural experiences that he does and says that he does not think she celebrates cultural days. It did not feature in cross-examination.
The mother was cross-examined about taking [X] to the local cultural centre. She said she used to take [X] along when she worked there.
It appears from [116] of the family report that [X] is aware of her Aboriginal cultures from both sides of her family. She says she has heard more stories about the past from her mother’s side. She says there is more of an Aboriginal community in Town A than in (town omitted).
Conclusion
This is a difficult and finely balanced case. It is very much about making orders which are the least worst alternative. There is some uncertainty with respect to the parties’ willingness and ability to comply with court orders in the future and to improve their communication such that both are involved in the decision making with respect to major issues concerning [X]’s welfare.
I am mindful that at 11 years old [X] is still very young. It is also clear that [X] has been influenced by her father. However, I am also satisfied that [X]’s views are also informed by her experience in her mother’s household. Whether or not the mother is drinking as much as [X] perceives her to be, the mother’s drinking is problematic. The mother’s evidence about her drinking was inconsistent. She has done little to address it despite the Court proceedings being on foot for two years and her knowledge that it is of concern with respect to her ability to care for [X].
There is also the issue of family violence. Whilst the mother says it is also an issue in the father’s household there is no evidence to support this. The wheel brace incident, whilst concerning, took place in 2011 and there is no other evidence of violence at handover or violence in the father’s household. The father and mother’s relationship was not explored in evidence, quite properly; as there have been final orders on foot since 2011 since the 2011 Court proceedings were resolved.
The mother has been in violent relationships since she and the father separated, first with Mr D and then Mr T. The mother’s evidence with the incident where [X]’s lip was hurt is not credible. I am satisfied that [X] has been exposed to family violence in the mother’s home. It is most concerning that she recently allowed Mr T to stay in her home overnight when [X] was there, in breach of Court orders. The mother may be assisted by family violence counselling.
It is obvious that [X] loves both her parents and identifies positive things about both. It is very important for her long term emotional wellbeing that [X] be assured by her parents, particularly her father, that her relationship with her other parent is valued, important and encouraged.
I am satisfied that [X] does not feel as safe and secure in her mother’s household as she does in her father’s. I am mindful of the Family Consultant’s comments that there is a risk that [X] will not trust adults and her parents in the future if she feels the concerns she has been raising over a long period are not heard and taken seriously. [X] has also seen her older siblings move between her parents’ households. It is a combination of these factors that have caused me to conclude that there should be a change of residence. This has been a particularly difficult decision to reach as I remain concerned about the father’s willingness and ability to facilitate and encourage [X]’s relationship with her mother, [B] and other members of her extended maternal family. I am somewhat comforted by the father’s wife as she showed some insight into the importance of this and the negative impact on [X] of the father’s over holding and the way the questioned her about her disclosures.
I am also troubled by the conflicting evidence with respect to the father’s relationship with his older children but there is too little evidence for me to be able to make any findings.
This decision is not based on risk factors alone but a combination of factors including [X]’s views.
Whilst much of the case quite properly has focused on competing issues of risk there has also had the real issue of the strength of [X]’s views and what weight to put on those views.
I have some concerns about the ongoing risk issues in the mother’s household with respect to her drinking and with respect to Mr T and whether or not she bound to maintain the improvements she has made including in ensuring that [X] attended school and attends on time once she is not under the scrutiny of court. Her failure to properly address the risks that she has been on notice of for the two years is of real concern.
I also hold concerns about the father as discussed above. His wife is a protective factor. She showed greater insight during the hearing than either of the parents.
What is also of significance in this case is the risk to [X] if she feels unheard and that adults will not protect her and listen to her.
There are practical difficulties and expense given the distance between the parties which prevent [X] from being able to spend frequent substantial and significant time with both parents.
Whether or not there are further proceedings will largely depend on the parties’ compliance with these orders and their willingness and ability to comply with these orders.
The father sought an order for the change to occur straight away due to his concerns about risk. The Family Consultant recommended that there be a three week lead up time so that [X] can prepare and say goodbye to friends.
It is tempting to allow [X] to finish the school year in Victoria but she has already gone for many months without seeing her father. On balance I think the change should occur before the end of term.
I certify that the preceding two-hundred and thirty four (234) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 17 October 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Remedies
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Procedural Fairness
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