Charlton and Sinclair

[2009] FamCA 1358

FAMILY COURT OF AUSTRALIA

CHARLTON & SINCLAIR [2009] FamCA 1358

FAMILY LAW – CHILDREN – With whom a child lives – The subject child has Down Syndrome - Initially the mother and father both sought orders for the child to live with them but by the end of the hearing the parties agreed the child should live with the mother - Orders made for the child to live with the mother and spend time with the father each alternate weekend, one night in the intervening week and half of school holidays - Child to spend time with the paternal grandmother during the time he spends with the father
FAMILY LAW – CHILDREN – Parental responsibility – Mother to have sole parental responsibility in relation to the child’s education otherwise the parents are to have equal shared parental responsibility

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Charlton

RESPONDENT: Ms Sinclair

INTERVENOR: Mrs Charlton

INDEPENDENT CHILDREN’S LAWYER: Ms Weber, Legal Aid NSW

FILE NUMBER: NCC 1008 of 2008

DATE DELIVERED: 22 December 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 30 November 2009 and 1, 2, 3 & 4 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Mr Weightman

SOLICITOR FOR THE RESPONDENT: Catalyst Family Lawyers

COUNSEL FOR THE INTERVENOR: Not Applicable

SOLICITOR FOR THE INTERVENOR: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Shea

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Weber, Legal Aid NSW

Orders

1. All former parenting orders relating to the child … (“the child”), born … September 1995, are discharged.

2. The mother shall have sole parental responsibility for the child in relation to the child’s education.

3. Subject to Order 2 hereof, the mother and father shall otherwise have equal shared parental responsibility for the child.

4. The child shall live with the mother.

5. Each of the parties shall take all reasonable steps to ensure that the child spends time with the father as follows, or as otherwise agreed in writing:

   a.During New South Wales public school terms:

   i)Each alternate weekend from 4:00 pm on Friday until 8:00 pm on Sunday, commencing Friday 29 January 2010;

   ii)In each other week, from 4:00 pm on Friday until 10:00 am on Saturday, commencing Friday 5 February 2010.

   b.During New South Wales gazetted school holidays:

   i)For the first half of each of the school holiday periods at the end of terms 1, 2 and 3.

   ii)In alternate weeks during the school holiday period at the end of term 4, commencing with the first week of that period each year.

   c.From 4:00 pm until 8:00 pm on the child’s birthday.

6. The child’s time with the father in accordance with Order 5(a) hereof shall be suspended during school holiday periods and shall recommence on the first weekend of each school term.

7. For the purposes of Order 5(b) hereof:

   a.The first half of each school holiday period at the end of terms 1, 2 and 3 shall start at 4:00 pm on the last day of term and conclude at 4:00 pm on the same day in the following week.

   b.The first week of the school holiday period at the end of term 4 shall start at 4:00 pm on the last day of term and conclude at 4:00 pm on the same day in the following week.

8. In the event that Father’s Day falls on a weekend when the child is with the mother, then the child shall spend that weekend with the father in lieu of the following weekend, which shall be spent with the mother.

9. In the event that Mother’s Day falls on a weekend when the child is with the father, then the child shall spend that weekend with the mother in lieu of the following weekend, which shall be spent with the father.

10. Notwithstanding any other order, the child shall spend Christmas time with each of his parents as agreed between the parents in writing, but failing agreement as follows:

    a.In odd numbered years, with the mother from 8:00 pm on Christmas Eve until 4:00 pm on Christmas Day, and with the father from 4:00 pm on Christmas Day until 8:00 pm on Boxing Day.

    b.In even numbered years, with the father from 8:00 pm on Christmas Eve until 4:00 pm on Christmas Day, and with the mother from 4:00 pm on Christmas Day until 8:00 pm on Boxing Day.

11. For the purposes of changeovers, the mother or her agent (being Mr S) shall deliver the child to the residence of the paternal grandmother at the commencement of the time that the child is to spend with the father, and the father or his agent (being either the paternal grandmother or L Charlton) shall deliver the child to the residence of the mother at the conclusion of the time spent by the child with the father.

12. Each of the parties shall take all reasonable steps to ensure that the child communicates with:

    a.The father, each Tuesday and Thursday when the child is living with the mother, between 5:30 pm and 6:00 pm, and for that purpose the father shall telephone the child on the telephone number provided by the mother to the father, and the mother shall ensure that the child is able to receive the father’s calls on that number at that time.

    b.The mother, each Tuesday and Thursday when the child is spending time with the father, between 5:30 pm and 6:00 pm, and for that purpose the mother shall telephone the child on the telephone number provided by the father to the mother, and the father shall ensure that the child is able to receive the mother’s calls on that number at that time.

13. The mother shall forthwith do all acts and things necessary to authorise any school attended by the child to send directly to the father, at the father’s expense:

    a.A copy of the child’s school reports, as they become available.

    b.A copy of the child’s school photos, if requested by the father.

    c.A copy of any notice or newsletter sent to the mother.

14. Both parents shall forthwith attend family counselling for the purposes of improving their communication and cooperation in relation to parenting matters.

15. For the purposes of Order 14 hereof:

    a.Each parent shall within 14 days attend upon their general practitioner and obtain a referral to the R Clinic at D, New South Wales, pursuant to a GP Mental Health Care Plan.

    b.Each parent shall within seven days of obtaining the necessary referral make an appointment to attend upon the R Clinic.

    c.Each parent shall advise the Independent Children’s Lawyer in writing once an initial appointment has been made, including the date of that appointment.

    d.Each parent shall attend appointments for the purposes of initial assessment and counselling as scheduled by the R Clinic.

    e.Each parent shall utilise their best endeavours to ensure that the paternal grandmother, Ms C, and Mr S attend appointments for the purposes of counselling as requested by the R Clinic.

    f.Any cost of counselling (after the Medicare rebate) shall be shared equally between the parents.

    g.In the event that the parents are not eligible for the Medicare rebate in relation to services provided by the R Clinic, then the parents shall attend upon a community based service nominated by the Independent Children’s Lawyer and these orders shall also apply in relation to that service.

16. The appointment of the Independent Children’s Lawyer is extended for a period of three months from the date of these Orders for the purposes of facilitating and monitoring the arrangements for counselling set out in Orders 14 and 15 hereof.

17. Each parent shall keep the other informed of their landline telephone number, mobile telephone number, and email address, and shall notify the other parent within 24 hours of any change.

18. Each parent shall keep the other informed of their residential address (including the address of the father’s current partner, Ms C) and shall notify the other parent at least 14 days prior to any change.

19. Each parent shall notify the other immediately in the event of any serious illness or injury affecting the child whilst in that parent’s care.

20. Each parent is restrained from denigrating or making derogatory remarks about the other parent or any member of the other parent’s family to, or in the presence or hearing of, the child.

21. Each parent shall use their best endeavours to ensure that no other person denigrates or makes derogatory remarks about the other parent or any member of the other parent’s family to, or in the presence or hearing of, the child.

22. The parents shall maintain a communication book (to be purchased and initiated by the mother) for the purposes of communicating with each other in relation to the child.

23. Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

24. Any and all outstanding applications are dismissed.

25. All documents produced pursuant to subpoena shall be returned by the Registrar to the owners and providers upon expiration of any applicable appeal period.

26. By reason of an inconsistency between some of these Orders and an existing Apprehended Violence Order, pursuant to s 68P(3) of the Family Law Act, the Registrar of the registry of the Family Court of Australia at Newcastle shall send a sealed copy of these Orders to:

    a.Mr S, the son of the respondent mother

    b.The Registrar of the Local Court of NSW at Wyong

    c.The Commissioner of the NSW Police Service

    d.The Director General of the NSW Department of Human Services.

Notation

A)Orders 3, 5, 8, 10, 11, 12, 14, 17, 18, 19, and 22 hereof are inconsistent with paragraph 13.6 of the Apprehended Violence Order made against the father in favour of the mother, the child, and Mr S by the Local Court of NSW at Wyong on 3 April 2008. Division 11 of Part VII of the Family Law Act therefore applies and those parenting orders prevail to the extent of any inconsistency.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1008 of 2008

MR CHARLTON

Applicant

And

MS SINCLAIR

Respondent

And

MRS CHARLTON

Intervenor

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

1. The parties’ child (“the child”) was born in September 1995.  He is presently aged 14 years.  He was born with Down Syndrome.  His relatives are now mired in controversy over parental responsibility for him and his living arrangements.

2. The child was born to the relationship of the applicant father, Mr Charlton, and the respondent mother, Ms Sinclair.

3. Other than both parents, the paternal grandmother, Mrs Charlton, has played a significant role in the child’s life.  She is the Intervenor in these proceedings.

4. Because of the conflict between the adults, the child is represented by an Independent Children’s Lawyer.

5. These proceedings were commenced by the father filing an Application for Final Orders on 17 January 2008.  The parenting orders proposed by the father for the child have transformed over time. The father filed his Amended Initiating Application on 18 August 2009.  In that document, the father essentially proposes that the child live with him, and that he spend time with the mother on alternate weekends, for periods during school holidays, and on other specific occasions of significance.

6. Although the father’s Amended Application makes no proposal in relation to the allocation of parental responsibility for the child, the father indicated during the course of the case that he desired equal shared parental responsibility for the child to be allocated to him and the mother.

7. At the conclusion of the evidence, during his final submissions, the father conceded that the evidence did not support the parenting proposal he had been advocating. He therefore altered his position considerably by conceding that the child should live with the mother. He also agreed that the mother should have sole parental responsibility for matters relating to the child’s education, but that otherwise they should share parental responsibility. The residual contest for the father was the amount of time that the child should spend with him. He contended that the child should spend time with him every weekend from after school on Friday until the beginning of school on Monday.

8. As with the father, the parenting orders proposed by the mother have transformed over time.  At hearing, the mother pressed for the orders set out within her Amended Response filed on 1 September 2009.  Generally speaking, her proposal is that the child live with her, and that he spend time with the father each alternate weekend from Friday afternoon until Sunday evening. She also proposes that the child communicate with the father by telephone on three afternoons each week.  The mother’s proposal makes no provision for the child to spend time with the father during school holiday periods.

9. The mother proposes that she have sole parental responsibility in respect of the child for decisions which pertain to his education and medical care, but that otherwise she and the father share parental responsibility.

10. The relationship between the child and the paternal grandmother is not mentioned by either the father in his Amended Application or the mother in her Amended Response.  That is not to say that the parents are ignorant of the relationship between the child and the paternal grandmother.  Rather, the cases conducted by the parents are that they each expect the child to spend time with the paternal grandmother at times during which the child is spending time with the father. Each of the parents opposed any specific order that the child spend time separately with the paternal grandmother.

11. The paternal grandmother is not content with such a casual arrangement.  She seeks more formality about the regime of her interaction with the child and seeks specific orders about the time that the child spends with her.  The paternal grandmother was permitted to intervene as a party in the proceedings and she filed her Response on 5 November 2008.  An Amended Response was filed by her on 1 September 2009.

12. It is difficult to discern her precise wishes from the Amended Response.  On the one hand, the paternal grandmother purports to lend her support to the entire raft of parenting orders sought by the father.  On the other hand, she purports to seek a specific order that the child spend time with her every week from Friday until Saturday afternoon, and also on special occasions.

13. The paternal grandmother’s positions are incompatible. The weekly arrangement she proposes for the child to spend time with her overnight on Friday until Saturday afternoon is irreconcilable with the orders formerly proposed by the father, supposedly supported by her, which provide for the child to be with the mother from 9:30 am Saturday morning each alternate weekend, and for half of all school holidays.

14. The internal inconsistency within the paternal grandmother’s Amended Response is also irreconcilable with the regime she outlined to the Family Consultant, which was that the child live week-about with her and the mother.

15. During the evidence, the paternal grandmother was cross examined about the incompatibility of her expressed proposals, which she acknowledged. She confirmed that she sought an order that would have the child spend every Friday night with her, concluding on Saturday afternoons, and also on various days during the year which had significance for the paternal family.

16. The ultimate recommendations made by the primary Family Consultant, Ms W, which were largely adopted by the Independent Children’s Lawyer, were that the child live with the mother, and spend time with the father on alternate weekends, for one night in intervening weeks, for periods during school holidays, and on special occasions. It was also recommended by Ms W that the parents have equal shared parental responsibility for the child, with the exception of decisions relating to the child’s education, for which the mother should have sole parental responsibility. During closing submissions, the Independent Children’s Lawyer tendered a Minute of Orders proposed by her, which became Exhibit ICL4.

17. Consequently, by the end of the trial, it was common ground between the parties that the child should live with the mother. The parties remained in dispute about the allocation of parental responsibility, and the amount of time that the child would spend with the father and paternal grandmother.

Documents read in evidence

1. The father read the following affidavits in evidence, initially in support of his Amended Application filed on 18 August 2009, but then in support of his revised proposal:

   a)Affidavit of the father filed on 17 January 2008;

   b)Affidavit of the father filed on 4 June 2008;

   c)Affidavit of the father filed on 14 August 2008;

   d)Affidavit of the father filed on 9 July 2009;

   e)Two separate affidavits of the father, both filed on 28 October 2009;

   f)Affidavit of Ms C filed on 9 July 2009; and

   g)Affidavit of Ms C filed on 28 October 2009.

2. In support of her Amended Response filed on 1 September 2009, the mother read the following affidavits in evidence:

   a)Affidavit of the mother filed on 20 March 2008;

   b)Two separate affidavits of the mother, both filed on 15 August 2008;

   c)Affidavit of the mother filed on 27 October 2009;

   d)Affidavit of the mother filed on 27 November 2009; and

   e)Affidavit of Mr S filed on 27 October 2009.

3. In her case, the paternal grandmother read the following affidavits in evidence:

   a)Affidavit of the paternal grandmother filed on 2 June 2008;

   b)Affidavit of the paternal grandmother filed on 27 August 2008;

   c)Affidavit of the paternal grandmother filed on 9 July 2009;

   d)Affidavit of the paternal grandmother filed on 6 November 2009; and

   e)Affidavit of Ms L Charlton filed on 6 November 2009.

4. The Independent Children’s Lawyer read the following documents in evidence:

   a)The Child and Parents Issues Assessment dated 4 July 2008, authored by the Family Consultant Mr N;

   b)The Family Report dated 2 July 2009 authored by the Family Consultant Ms W; and

   c)Affidavit of Mr L filed on 13 November 2009.

Background history

1. The applicant father was born in 1969.  During the course of the hearing the father attained 40 years of age.

2. The respondent mother was born in 1957.  At the time of hearing she was aged 52 years.

3. The paternal grandmother was born in 1940.  At the time of hearing she was aged 69 years.

4. The parents were married in 1994.  They had been cohabiting for some time before their marriage.  The child was conceived shortly after their marriage and was born in September 1995.

5. The parties initially lived in the Sutherland Shire.  They each worked and they were assisted significantly in the care of the child by the paternal grandmother.

6. At some undisclosed stage during their marriage, the parties moved to the Central Coast area.  The paternal grandmother is also now resident in the Central Coast area, she also having formerly lived in the Sutherland Shire. 

7. The parents’ relationship encountered difficulties and they separated within the former matrimonial home in about late October or early November 2007.  They lived separately within the former matrimonial home for the next couple of months until the father vacated the former matrimonial home on or about 20 January 2008, following an altercation between the parents.

1. Only days before that altercation, on 17 January 2008, the father had filed an Application for Final Orders in the Wyong Local Court seeking parenting orders in respect of the child.  In that Application the father sought both final and interim orders.

2. The Application was returnable before the Wyong Local Court on 24 January 2008, at which time interim orders to the following effect were made:

   1.That the child […] born […] September 1995 live with the mother from 6:00pm 24 January 2008 to the conclusion of school on Monday 4 February 2008 and thereafter with the father and the mother each alternate week with changeover to occur at the conclusion of school on Mondays, the father’s week to commence on 4 February 2008.

   2.That the parties have joint parental responsibility.

   3.That the child spend time with the mother each Wednesday of the week the child lives with the father from the conclusion of school to 9:00pm.

3. On 25 February 2008, the father filed an Amended Application seeking a different set of parenting orders.  In lieu of orders that the child live with him, the father sought that the child live week-about with each parent.

4. On 10 March 2008, there was a further altercation at the former matrimonial home, but on this occasion it involved the father and the mother’s adult son Mr S.  The mother was not home at the time.  Knowing of the mother’s absence, the father attended the home for the express purpose of removing items of personal property.  A physical altercation ensued between the father and Mr S resulting in the father’s assault of Mr S. 

5. The father was subsequently charged by police with assault. The father later entered a plea of guilty to the charge, which was dismissed without conviction pursuant to Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). An Apprehended Violence Order was also made against the father in favour of the mother, child, and Mr S.

6. On 20 March 2008, the mother filed a Response proposing her own parenting orders for the child.

7. The matter came back before Wyong Local Court on 3 April 2008, at which time the earlier interim orders were confirmed and the matter was transferred to the Family Court of Australia at Newcastle.

8. On 2 June 2008, the paternal grandmother filed an Application seeking leave to intervene in the proceedings.  That application was granted by the Court on 3 June 2008, and at the same time, an Independent Children’s Lawyer was appointed to represent the interests of the child.

9. On 20 August 2008, further interim parenting orders were made to the following effect:

   1.1These proceedings be adjourned to 15 September 2008 at 10:00 am.

   1.2Notwithstanding any previous order the child, born in September 1995 shall live with the father as follows:

   a.From collection from school Wednesday, 20 August 2008 until delivery to school Friday, 22 August 2008;

   b.From collection from school Friday, 29 August 2008 until 4:00 pm Sunday, 31 August 2008;

   c.From collection from school Wednesday, 3 September 2008 until delivery to school Friday, 5 September 2008;

   d.From collection from school Friday, 12 September 2008 to 4:00 pm Sunday, 14 September 2008.

   1.4The parties note that these orders are inconsistent with the Family Violence Order of the Local Court at Wyong made 3 April 2008.

10. On 15 September 2008, further interim parenting orders were made to the following effect:

    1.1That all previous parenting orders be and are hereby discharged.

    1.2That the child born in September 1995 live with the father on a four weekly cycle commencing week three 16 September 2008 as follows:

    Week 1: From collection from school Wednesday until delivery to school Friday.

    Week 2: From collection from school on Friday until Sunday 4:00pm.

    Week 3: From collection from school on Tuesday until delivery to school Friday.

    Week 4: From collection from school on Friday until Sunday 4:00pm.

    and live with the mother at all other times.

    NOTATION

    A.The parties note that these Orders are inconsistent with the Family Violence Order of the Wyong Local Court made 3 April 2008.

11. On 5 November 2008, having been earlier granted leave to intervene, the paternal grandmother filed her Response setting out the parenting orders desired by her.

12. On 9 July 2009, the matter was brought back before the Court on the application of the Independent Children’s Lawyer following the release of the Family Report.  The Independent Children’s Lawyer was desirous of varying the last interim parenting orders made on 15 September 2008 by reason of the contents of the Family Report.

13. The following further interim parenting orders were therefore made by the Court on 9 July 2009:

    1.1That orders 1.2, 1.3, 1.4, 1.5 and 1.6 of the orders dated 15 September 2008 are suspended from the date of these orders and that the orders of 15 September 2008 be varied by the addition of the orders in this application.

    1.2Except as provided in these orders the parents shall have equal shared parental responsibility for the child, born in September 1995.

    1.3That the mother will have sole parental responsibility for the child in relation to the child’s education including but not limited to:

    1.3.1For decisions about the schooling of the child;

    1.3.2For liaising with schooling authorities, school teachers and receiving school reports in relation to the child.

    1.4That the child live with the mother.

    1.5That the child spend time with the father as follows:

    1.5.1During school terms:

    1.5.1.1Commencing from 17 July 2009 each alternate weekend commencing from 4:00pm on Friday to the beginning of school Monday.

    1.5.1.2In the event that any weekend falls on a long weekend including a Monday then the time that the father spends with the child shall be extended to 6:00pm on Monday; if it falls on a long weekend including Friday, then time shall commence on 6:00pm Thursday.

    1.5.1.3Such further times as the parties may agree, from time to time.

    2.That the child is also to spend time with his father and paternal grandmother each Thursday from 3:30pm until 7:30pm and for the first week of each school holiday commencing August, September, October 2009, and the mother is to deliver the child to the father at paternal grandmother’s house, at the commencement of the child spending time with the father and the father is to deliver the child to the mother at paternal grandmother’s house, at the conclusion of time with the father.

14. The matter again came before the Court on 22 July 2009 for procedural directions, at which time the matter was fixed for final hearing before the Court, commencing on 30 November 2009.

15. In accordance with the procedural orders made on that date, the father filed his Amended Application on 18 August 2009, and both the mother and the paternal grandmother filed their Amended Responses on 1 September 2009.

16. The trial commenced on Monday 30 November 2009, and concluded on Friday 4 December 2009.

Summary of Parenting Law

1. Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). That parental responsibility pertains to the major long-term issues concerning the child (ss 65DAC, 65DAE), being matters such as education, religion, culture, health, name, and living arrangements (s 4).

5. However, the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.

6. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

8. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286.

Best interests of the child – primary considerations

Section 60CC(2)(a)

1. There can be little doubt that the child has a meaningful relationship with the mother, which is of benefit to him.

2. The Family Consultant, Ms W, had the opportunity to observe interaction between the child and the mother.  She describes them interacting in a warm, relaxed and comfortable manner.  The child was reluctant to separate from the mother and his half-brother Mr S at the end of the session.  The child physically clung to the mother and stated that he wanted to stay with her.  The mother and Mr S separated from the child sensitively and reassured him.[1]

   [1] Family Report, pars 79-80

3. Neither the father nor the paternal grandmother have, at any time, challenged the quality of the relationship between the child and the mother, or questioned the benefit that the child derives from that relationship.

4. The evidence indicates that the child also has a meaningful relationship with the father, which is of benefit to the child.

5. Although the mother has asserted that in more recent times the child has demonstrated, and orally expressed, some reluctance to spend time with the father, her evidence is not entirely consistent with the objective evidence.

6. Ms W also observed the child interacting with the father.  The child greeted the father warmly and gave him a hug spontaneously.  They then engaged in a warm, relaxed and comfortable manner.  The child was observed to express excitement about seeing other members of the paternal family.  At the conclusion of the session the child individually hugged each member of the paternal family.[2]  As was the case with the mother, the Family Consultant concluded that the child had a warm relationship with the father.[3]

   [2] Family Report, pars 81-83

   [3] Family Report, par 131

7. The child will benefit from maintaining his meaningful relationship with both parents and orders must be made that will ensure such an outcome. It is vital to his emotional security.

Section 60CC(2)(b)

1. The father has stated that he holds no concerns that the child is at risk of physical harm in the care of the mother.[4]

   [4] Family Report, par 27

2. Nor does the father make any allegation that the child is at risk of psychological harm from being subjected or exposed to abuse, neglect or family violence whilst in the care of the mother.  The father does allege that the child is at risk of emotional harm in the care of the mother due to her brain-washing the child,[5] but that is for reasons related to the mother’s alleged unwillingness to promote the child’s relationship with members of the paternal family.

   [5] Family Report, par 27

3. Each of the parties makes allegations against one another of conduct amounting to abuse and family violence. Although their respective versions of two separate incidents shortly following their marital separation are quite different, there can be no doubt that those incidents involved family violence.

4. From the end of 2007 the parties were separated under the one roof.  They were occupying separate bedrooms.  The first violent incident occurred between the parties on or about 20 January 2008, when the father vacated the former matrimonial home. The father’s version of the incident[6] is different from the mother’s version of the incident.[7] Nevertheless, there is some evidence which is uncontroversial. 

   [6] Father’s affidavit filed 4 June 2008, pars 6(f) and  6(g)

   [7] Mother’s affidavit filed 20 March 2008, pars 12-15

5. The parties were involved in a heated argument, which in part dealt with the father’s desire to vacate the home with the child.  The child was present to witness the argument and the physical altercation.  The parties physically struggled over the child.  The father pushed the mother away from him repeatedly, forcing her backwards onto a lounge.  Both the mother and the child were crying.  The mother’s eldest son Mr S was also present.  He was also crying and intervened in an attempt to stop the struggle.  As a consequence of the altercation, the mother was bruised.  The next morning she consulted her general practitioner about her condition.  The mother agreed that the medical notes of the doctor verified the presence of bruising on her body and that she presented as “very shaky and distressed”. The mother adduced photographs of her bruising.[8]

   [8] Mother’s affidavit filed 20/3/08, Annexure A

6. Although the father describes the mother as the aggressor, the facts summarised above are still consistent with his version of the event.  If the mother’s version of the event is accepted, then the father was the aggressor and the incident was even more violent than described.  Mr S was cross-examined about the incident and his version of the incident was largely consistent with that of the mother.

7. It is unnecessary to make any finding as to which party’s version of the event on or about 20 January 2008 is likely to be more accurate.  The evidence which is uncontested is sufficient to ground a finding that family violence occurred between the parties in the presence of the child, which caused the child to be highly distressed. In cross-examination the father was specifically asked whether he thought that that incident might have adversely affected the child.  His answer was “gravely so”.  He agreed that the child would likely have been traumatised.

8. The Independent Children’s Lawyer tendered some records produced pursuant to subpoena by the principal of the secondary school attended by the child.  Those records were admitted as Exhibit ICL1.  The records demonstrate that the child was behaving in a wayward manner when he resumed school in the 2008 academic year.  The school staff recorded on 8 February 2008 that the child became very defiant and refused to follow teachers’ instructions.  On 14 February 2008, the child is recorded as displaying aggression, throwing stones in the playground, and defacing a pole with a texta.  On 20 February 2008, the child pushed another student for no reason.

9. Perhaps there is no connection between the child’s uncharacteristically unruly behaviour at school in early February 2008 and his exposure to the violent incident between his parents on 20 January 2008.  However, the father was prepared to concede in cross-examination that he would not be surprised if the child had been acting in that way at school given the disturbance suffered by the child as a consequence of his exposure to the incident on 20 January 2008.

10. The second incident of violence occurred on 10 March 2008.  That incident occurred between the father and Mr S.  The mother was not involved.  However, the child was again a witness.  The incident was still capable of constituting “family violence” within the meaning of the Family Law Act 1975 (“the Act”),[9] despite the absence of the mother’s involvement, because the violence was witnessed by the child, and directly involved Mr S who was a member of the household of the mother and child.

    [9] Family Law Act 1975 (Cth), s 4

11. The incident occurred when the father attended the former matrimonial home to recover items of personal property.  He alleges that prior requests made by both he and his solicitors for the return of that property had been ignored.  He therefore intended recovering the property from the home himself on an occasion when he knew that the mother would be absent from the house.  The father knew that both Mr S and the child may well be present.  Although he realised that he would then be placing Mr S in the middle of his conflict with the mother, the father said that he felt he had no other option.  He accepted that Mr S may have been quite scared, given that the father arrived at the household with other adults to assist him.

12. What happened when the father insisted on entry to the home, over the objection of Mr S, is again the subject of some controversy.  The father’s version of the event[10] is quite different from the version of the event given by Mr S.[11]

    [10] Father’s Affidavit filed 4 June 2008, par 6(l) and 6(m)

    [11] Affidavit of the mother filed 20 March 2008, Annexure E

13. I prefer the version given by Mr S.  He was an impressive witness.  He carefully considered the questions posed to him and gave measured, thoughtful answers.  He did not baulk at making concessions when they were warranted.   Quite apart from Mr S’s convincing demeanour, his version of the incident is contained within a written statement which he made to the Police on the very day that the incident occurred.  The first version of the incident reduced to writing by the father is that contained within his affidavit filed on 4 June 2008.  Mr S committed to his version contemporaneously with the incident and I regard it as being more probably accurate than the version recollected by the father some months later.

14. The father was challenged in cross-examination about Mr S’s version of that event.  He made concessions that he may have acted in the ways described by Mr S. That makes acceptance of Mr S’s version even more straightforward.

15. Mr S was so traumatised by the incident that he summoned the Police.  As a consequence of the statement he made to Police, the father was charged with “assault”. It was Mr S’s version of the event upon which the father was successfully prosecuted and made the subject of an Apprehended Violence Order.

16. The father concedes that he subsequently entered a plea of guilty to the “assault” charge.  Although the father was not formally convicted of the offence, his entry of a plea of guilty to the charge is a public admission that his conduct amounted to an unlawful assault upon Mr S. 

17. Simultaneously with the conclusion of the criminal prosecution against the father for the assault, the Court imposed an Apprehended Domestic Violence Order upon the father for the protection of the mother, child and Mr S.  The Apprehended Violence Order, made on 4 April 2008, is in evidence.[12]

    [12] Exhibit M1

18. In relation to the incident on 10 March 2008, Mr S says that although he attempted to close the door to prevent the father’s entry to the home, the father pushed his way inside.  Mr S went upstairs to find his mobile telephone to call an uncle.  The father took hold of his arm and demanded the telephone from him.  Mr S tried to resist but the father took his left arm, twisted it behind his back, and pushed him up against a wall.  The father held him in that position up against the wall causing pain in Mr S’s left shoulder.  The father again demanded the phone, which was then surrendered.  The father then threatened to knock Mr S out and break his arm if he tried to summon assistance on one of the other telephones within the house.  Mr S was crying and says that he was extremely fearful. The father then removed a large amount of personal property from the house with the assistance of his accomplices.  That process took several hours.  As the father was departing the household he told Mr S that if he called the Police he would come back and smash up the house so that nothing would be usable.

1. It is common ground that the child was present to witness that incident.

2. The criticism that can be levelled at the father for the manner in which he behaved on that occasion might be ameliorated to some extent if he could now reflect upon that incident with sufficient insight to realise how appallingly he behaved.  Regrettably, that is not the case.  He still minimises his culpability by describing his assault upon Mr S as only “technical”, and even asserted that his conduct was really “defensive”, as he had earlier said to Ms W.[13]  Self-evidently, his actions could not have been defensive given that he admits assaulting Mr S. His conduct would not have amounted to an assault at law had his actions been truly defensive.

   [13] Family Report, par 22

3. In cross-examination the father was given the opportunity to indicate whether he would have handled himself differently on that day with the benefit of hindsight.  His answer was both curious and illuminating.  He said he would not have acted any differently at all on 10 March 2008.  Rather, he would have formally involved the Police and ambulance at the earlier violent incident on 20 January 2008 with the intention of having the mother charged with an assault upon him.  In those circumstances, he envisages that the mother would have been arrested and removed from the former matrimonial home, allowing him to occupy it.  Had that occurred, he would already have been in occupation of the former matrimonial home and in possession of the personal property he desired, making his attendance at the property on 10 March 2008 entirely unnecessary.  He regarded it as a mistake not to have taken further action against the mother in relation to the earlier incident on 20 January 2008. He asserted that it was morally wrong for Mr S to have reported the incident to Police. 

4. To say the least, that demonstrates an alarming lack of insight. That is particularly so when the father asserts that he had formerly been a father figure to Mr S,[14] and when he also acknowledges the profound effect upon the child of his exposure to violence between family members.

   [14] Father’s affidavit filed 4/6/08, par 6(d)

5. As a consequence of those incidents in January and March 2008, there were undoubtedly occurrences of family violence in the former matrimonial home, to which the child was exposed.

6. Although there have been no incidents of abuse or violence between the parties since March 2008, the mother believes that the father has a short temper and that his volatility constitutes some risk to the child.  The mother does not expressly articulate the risk as being a direct physical one, but rather that the child might be emotionally harmed by being further exposed to the father’s aggressive and abusive behaviour towards other people.[15]

   [15] Family Report, par 51

7. It could not be said that the mother’s concerns in that regard are entirely unreasonable.  The father has been involved in a spate of hostile incidents over the last two years with the first Family Consultant in these proceedings and staff members of the child’s school.

8. The father met with the Family Consultant, Mr N, on 3 July 2008. Mr N reports in his Assessment, dated 4 July 2008, as follows:

   “At the conclusion of the feedback meeting, when the father perceived that the Report Writer was not going to totally support the father to ‘get what he wanted’ the father quickly became enraged and stormed out of the meeting violently slamming a door and with a significantly raised and hostile voice, gave an aggressive verbal barrage including suggestions that the Report Writer was incompetent and was deliberately and mischievously acting against the father. It was disappointing to learn from other independent Court staff that moments after this occurrence, the paternal grandmother appeared to be agreeing with the father rather than calming him down and admonishing him for his appalling and highly offensive and inappropriate behaviour.”

9. The father did not seek to dispute the accuracy of that summary of the incident. Rather the father only sought to explain his behaviour by asserting bias against him by Mr N. The father said in evidence that he believed that Mr N had already made up his mind against the father. The father seemed to miss the point that his behaviour was inexcusable, irrespective of the reason for his vexation. It subsequently proved that the father’s perception about Mr N’s bias was erroneous in any event.

10. Although he admitted not remembering the precise words used, the father alleged that he was told by Mr N words to the effect that he would have “no contact” with the child, and that he would “not see (the child) again”. He even alleged that Mr N was deliberately “baiting” him for a reaction. Those allegations are difficult to accept at face value, because conduct of that sort is anathema to an impartial assessment by a competent Family Consultant.

11. Mr N was questioned about the incident in cross examination. He expressly denied saying to the father comments of the sort alleged. He also said that he considered it highly unlikely that the father could have inferred from his comments that he would have no time with the child. Mr N disavowed that he would have intimated the outcome of the proceedings, as that was not his role. He denied that he had been heated during the incident, and rejected any suggestion that his conduct may have contributed to the loss of temper by the father. He says that their discussion was prematurely ended by the father storming from the room.

12. I find the allegations of the father factually baseless in the face of the evidence given by Mr N. The recollections of Mr N appeared superior to those of the father, which might well be explained by the ability of Mr N to refresh his memory from the Assessment that he wrote, containing reference to that incident, the day after its occurrence. The father was giving evidence from his memory some 16 months after the incident, apparently unassisted by any contemporaneous note.

13. I unequivocally find that Mr N was not biased against the father. Even if the father genuinely believes that he was, that only serves to demonstrate the father’s impaired capacity to objectively assess the nature of his inter-personal relationships.

14. On or about 25 May 2009 the father convened a meeting with staff members at the child’s school. A version of events at that meeting, and the repercussions that flowed from it, is given by the head teacher, Mr L.[16] He also gave his account to the Family Consultant Ms W.[17] The meeting was fractious. The father’s demeanour was such that the school later took steps to have the father banned from attending the school.

    [16] Affidavit of Mr L filed 13/11/09, pars 58-65

    [17] Family Report, pars 105-106

15. The father admits that he raised his voice in the meeting, although he denies yelling. The friend who accompanied the father to the meeting, Ms C, said that both the father and teachers were yelling at one another. Mr L said that the only person yelling was the father. Irrespective, the incident was highly unpleasant for all concerned – no more so than for the child, who was present in the room and witnessed the hostility. The father said that the child was present for the entire episode, although Mr L was unsure.

16. The father still maintains that his behaviour on that occasion was appropriate. He said so to Ms W,[18] and also in cross examination. The father even said in evidence that he did not regret the child being present because he did not do or say anything untoward. The father implied that the hostility of the incident had been exaggerated and that the child was unaffected. His evidence was contradicted by that of Ms C, who said that she could see the worry in the child’s face.

    [18] Family Report, par 35

17. On an earlier occasion, the father admits attending the child’s school and yelling at a teacher in displeasure about an error made by staff in allowing the child to board a bus when he was to have been collected by the father in a car.  He admits to being very angry on that occasion.[19]

    [19] Family Report, par 34

18. Mr N recommended in his Assessment that the father undertake an anger management course.[20] The father did not do so because he alleged that he had not read Mr N’s Assessment until the day of the trial and was unaware of the recommendation. Nor could the father remember discussing the issue with the other Family Consultant, Ms W.[21] The father said in evidence that he did not consider that he had any “anger issues” that he needed to address. He said the same thing to Ms W.[22] The father said that he was aware of a recommendation that he obtain some counselling, but he believed that recommendation was to be the subject of evaluation by a doctor. When the father consulted his general practitioner, he alleges that he was told that he was “fine and moving on”. He therefore concluded that counselling was unnecessary for him.

    [20] Assessment dated 4/7/08, page 6

    [21] Family Report, par 41

    [22] Family Report, par 40

19. Even the father’s friend, Ms C, admits that the father is highly stressed about matters related to the child and needs to be calmed by her, away from other people.[23]

    [23] Family Report, pars 95-96

20. The conclusion is inescapable that the father has difficulty controlling his emotions. He is prone to outbursts of anger when circumstances are not to his liking. On occasions, his anger has manifested itself in intimidatory behaviour, and in outright physical violence on other occasions.

21. I am not satisfied that the father presents a risk of physical abuse to the child. I am not satisfied that the episodes of violent conduct by the father in the past are likely to be repeated by him in the future. However, I do find that the child is at some risk of psychological harm by reason of being exposed to the father’s verbal aggression and intimidation directed towards others. That finding is consistent with the evidence of Ms W,[24] and is a consideration which weighs heavily in the evaluation process.

    [24] Family Report, par 126

22. It was alleged by the paternal grandmother that the father reported to her in late 2007, around the time of separation, that the mother had threatened to stab the paternal grandmother. The allegation was not raised by either the father or the paternal grandmother with either Family Consultant, nor was it mentioned in their affidavit evidence. It came to light in the cross examination of Ms C, who gave evidence before the paternal grandmother. She was aware of it because the paternal grandmother had spoken with her about the alleged threats.

23. When later cross examined, the paternal grandmother said that she thought the threats were a “flash in the pan”, made at a time of high emotion. She therefore paid them no further heed.

24. The mother denies making any threats to or in respect of any members of the paternal family. Whether such threats were made is not an issue that needs to be resolved. The paternal family do not consider it an issue of significance, and there is nothing about the evidence in its current state which warrants the Court’s unilateral development of the issue. That is particularly so when the parties are now agreed that the child should live with the mother.

Best Interests of the Child – Additional Considerations

Section 60CC(3)(a)

1. The child has not verbally expressed any views about the parenting arrangements. The Family Consultant was unable to ascertain his views orally.[25]

   [25] Family Report, pars 73-74

2. However, despite his loving relationships with the father and paternal grandmother, the child’s behaviour has demonstrated an inclination towards the mother as his primary source of comfort and stability.[26] Mr L said that in his experience it was a normal reaction for young children to ask for their mother when upset, but having regard to his experiences with the child in this case, he had the firm impression that when the child had asked for his mother he specifically wanted his mother rather than any other parental or adult figure.

   [26] Family Report, pars 82, 101-103

3. The evidence justifies a conclusion that the child’s authentic view is that he wishes to spend most of his time with the mother.

4. In reaching that conclusion, I am not swayed by the evidence about the apparent reluctance demonstrated by the child to spending time with the father.[27] Although the mother said in evidence that she inferred from the child’s behaviour that the child genuinely did not wish to see the father, the Family Consultant thought that there was some other explanation for that behaviour.[28] I accept the evidence of the Family Consultant that the more probable explanation is the child’s awareness of the parental conflict and his wish to avoid involvement in it, rather than a genuine wish not to see the father.

   [27] Family Report, pars 52-55, 89

   [28] Family Report, pars 112-113

5. Ms W commented that the child’s behaviour in that regard is not unexpected in light of the elevated parental conflict and the child’s young cognitive age.

Section 60CC(3)(b)

1. The child has a meaningful relationship with both parents. That issue has already been addressed under s 60CC(2)(a) of the Act and no more need be said about it. But the child has other important relationships in his life.

2. The child’s half-sibling Mr S is very important to the child. The Family Consultant described Mr S as being less affected by conflict than any of the other adults in the life of the child.[29] Having seen them all give evidence, that was also my view. I have the impression that if all of the other adults were as even and moderate as Mr S then this litigation may have been resolved consensually long ago.

   [29] Family Report, par 123

3. The father agreed in cross examination that there was great benefit to the child in the maintenance of his relationship with Mr S. The evidence demonstrates that the mother and Mr S share responsibility for the care and supervision of the child, because of the mother’s work commitments. Mr S is willing and enthusiastic about his role with the child. Mr S receives a carer’s pension for his care of the child.[30]

   [30] Mother’s affidavit filed 30/11/09, pars 30-31

4. The father has fallen out with Mr S, primarily because of the incident between them on 10 March 2008. The father said he would be unable to reconcile his relationship with Mr S unless Mr S apologised to him for having summoned the Police to that incident, which resulted in the father’s prosecution for an offence. The father is also gratuitously critical of Mr S in his affidavit evidence, describing him as uneducated, a drug dealer, a receiver of stolen property, lazy, and unable to follow simple instructions.[31]

   [31] Father’s affidavit filed 9/7/09, Annexure pars 85-86

5. The father did not recant from those descriptions of Mr S when cross examined and said that he still believes those things about him. It is patently clear that the relationship between the father and Mr S is unlikely to be reconciled. The father will probably continue to harbour adverse views about Mr S. They will see little, if anything, of one another in the future. In that event, if the child were to spend lengthy amounts of time with the father, the child’s relationship with Mr S would inevitably suffer. That would be a deleterious outcome for the child.

6. Ms W said that the child has a warm and positive relationship with the paternal grandmother. The mother does not challenge that proposition. In fact the mother said in cross examination that the paternal grandmother was an important person and had a significant role to play in the child’s life.

7. The quality of the relationship between the child and the father’s friend, Ms C, is less clear. That relationship is an important consideration because Ms C is pregnant to the father. She is due to give birth in April 2010. It is generally intended that the father and Ms C will permanently cohabit from that time. That evidence was elicited in the cross examination of the father and Ms C. Curiously, it was not mentioned by either of them in their affidavit evidence. Perhaps that is because each of them maintained that the newborn baby would make no difference to the running of their household.

8. Ms C has a child, a daughter, to a former relationship. Ms C’s daughter lives with Ms C. The parenting orders in respect of this child are still the subject of dispute between her biological father and Ms C. Ms W, in her capacity as a family consultant in those other proceedings, has recently interviewed Ms C’s daughter. Ms W reports that Ms C’s daughter admits to sharing a bedroom with the child, and that Ms C’s daughter is not entirely positive about her relationship with the child. More importantly, comments made by Ms C’s daughter to Ms W lead her to the conclusion that Ms C may not be entirely well disposed towards the child. Ms C’s daughter perceives Ms C as not being her usual happy self when having to deal with the child.

9. That evidence is somewhat tenuous, being adduced from Ms W on the reports of a young child in completely different litigation, but Ms W regarded it as sufficiently important to mention it in the context of the father having sought an order that the child live with him in a household that would also include Ms C, Ms C’s daughter, and their newborn baby.

10. I draw the conclusion that the relationship between the child and Ms C is satisfactory, but not as warm as the relationships enjoyed by the child with the mother, Mr S, the father, and the paternal grandmother.

Section 60CC(3)(c)

1. The father has raised as an issue the willingness of the mother to facilitate and encourage the relationship of the child with him.

2. The father reports that the child referred to his girlfriend as a “bushpig slut”.[32] In evidence he said that occurred in about February 2008, just after separation. The girlfriend concerned was not Ms C. It only happened once.

   [32] Family Report, par 27

3. The paternal grandmother also reports that the child had told her that the mother had described her as a “bitch”.[33]

   [33] Family Report, par 65

4. The mother and Mr S both said that they had never heard the child say words like that, and to their knowledge, nobody within their home had used words to that effect.

5. Ms C reported that she had heard the child say “Mummy and [Mr S] are my parents”.[34] The mother said she had never heard the child say anything like that. Mr S however said he had heard the child say words to that effect, but that he corrected the child and told him that he was his brother and not his parent. Mr S denied that he had coached the child to say things like that, and so far as he was aware, neither had the mother.

   [34] Affidavit of Ms C filed 28/10/09, par 10

6. Selected extracts of the medical records of the mother’s consultations with her general practitioner, Dr O, were tendered in evidence as Exhibit F2. The extracts comprising the exhibit did not include the records of the consultation of the mother with that doctor on 20 January 2008. Nonetheless, the mother was cross examined about the records relating to that consultation. The mother was unable to explain how the doctor might have come to describe the paternal grandmother in the notes as “evil”, unless that description of her was used by the mother during the consultation. That is of course the most likely explanation.

7. The notes made by the doctor in consultation with the mother on 20 January 2008 are not in evidence. Consequently, there is no direct evidence that the doctor noted any comment by the mother that the paternal grandmother was evil. However, the mother’s evidence on that point allows the imputation to be fairly drawn.

8. I am satisfied on the evidence that the mother has occasionally made some derogatory comments about the father and members of the paternal family to, or in the presence of, the child. That reflects poorly upon her, and is a matter which should be given some weight. However, I am not satisfied that her behaviour has been pervasive or unrelenting. Were it otherwise, the relationships that the child enjoys with members of the paternal family would likely be showing greater signs of erosion than is the case.

1. I accept the evidence of Mr S. I am satisfied that he has not denigrated members of the paternal family to, or in the presence of, the child.

2. The father also asserts that the child is usually unsettled when he arrives to stay from the mother’s.[35] The father attributes that to the mother not promoting the child’s relationship with him, and suspects that the mother actively corrodes it. I am not satisfied of that. The child’s initial unsettlement on his arrival to the father is probably a continuation of the unsettlement mentioned by the mother antecedent to the child’s departure to the father, the explanation for which is most likely to be the child’s awareness of the conflict between the maternal and paternal families.[36]

   [35] Family Report, par 27

   [36] See par 105 above

3. Although the mother may not have been doing her utmost, I am still satisfied that she is generally willing and able to facilitate and encourage the relationship between the child and the father.

4. I am satisfied on the evidence that the father has a willingness to facilitate and encourage the relationship between the child and the mother, but there is some residual concern about his capacity to do so.

5. The father said in evidence that he had lost his positive views about the mother over the years, but despite his critical views of the mother he did not consider that it would be difficult for him to promote the relationship between the child and the mother. That opinion demonstrates some lack of insight on the father’s part. If his views of the mother are genuinely poor, it will be difficult for him to avoid impressing those opinions upon the child by word and deed, whether he recognises the fact or not. That was the view of the Family Consultant.[37]

   [37] Family Report, par 43

6. However, the father’s ability to realise during closing submissions that a compelling case had been made for the child to live predominantly with the mother, and for the mother to have sole parental responsibility for decisions relating to the child’s education, was a revelation which exemplified some ability on his part to promote the relationship between the child and the mother.

7. The Independent Children’s Lawyer submitted that both parents have a willingness and ability to facilitate and encourage the relationship between the child and the other parent. I accept that submission.

Section 60CC(3)(d)

1. A change of any significance from the present parenting arrangements would have serious consequences for the child. His intellectual disability impairs his ability to cope without routine. For him, routine brings stability and security. That is not a contentious proposition. That was acknowledged by the paternal grandmother long ago,[38] and accepted as a truism by the parties in their oral evidence.

   [38] Paternal grandmother’s affidavit filed 2/6/08, par 21

2. The Family Consultant said that if the child does not have a consistent routine he will endure uncertainty about what confronts him. That will cause him anxiety, which is only compounded by his awareness of parental conflict. That consideration carries considerable weight.

3. In light of that evidence, I conclude that the final parenting regime should broadly reflect existing arrangements.

4. The father abandoned his proposal for the child to live predominantly with him, which would have been a complete reversal of current arrangements. The father’s latest proposal, which would have the child spend time with him every weekend from Friday until Monday is still quite a dramatic change for the child.

5. Ultimately, I am not satisfied that the child would cope with that arrangement. Unlike other children, the child will not emotionally or intellectually mature with the passage of time. Because of his condition he is permanently fixed at the intellectual level and emotional maturity of a young child. He will not be able to easily grow into acceptance of a different parenting regime.

6. The emotional problems caused by a change of routine would be compounded by the reduced time the child would then spend with the mother and Mr S. On the preponderance of evidence, that is an untenable outcome.

Section 60CC(3)(e)

1. There will be no practical difficulty or expense incurred in the child spending regular time and communicating with the father and paternal grandmother.

2. The child is likely to spend his time in the households of the mother, paternal grandmother, and Ms C. The father currently lives between the homes of the paternal grandmother and Ms C. Although Ms C and the paternal family have declined to disclose her residential address, it is on the Central Coast, as are the residences of the mother and paternal grandmother.

3. No party has indicated a desire to relocate away from the Central Coast. In fact, all have denied any intention to do so. Even when the father and Ms C begin living together permanently, instead of temporarily, they will share Ms C’s existing home or another rented house on the Central Coast.

4. The father’s medical condition prevents him from driving at the moment, but he has the assistance of both the paternal grandmother and Ms C for his transport. The mother can drive and has access to a car. The child can be transported between the parties with relative ease.

5. The child will be at liberty to communicate freely between the households. Even though Ms C has not disclosed her landline telephone number, one exists, and it can be used by the child to call the mother when he is at that location. The father says that he has no mobile telephone reception when he is at Ms C’s home. If the father declines to disclose the landline telephone number to the mother and the child, thereby precluding the child from having the option of telephoning him when the father stays at Ms C’s home, that is a matter of choice for the father.

6. The father sought to make the mother’s medical condition an issue in the proceedings, but there is nothing about the mother’s health that evokes concern about her physical ability to care for the child. The medical records pertaining to the mother, tendered by the father as Exhibits F1 and F2, relate to medical consultations undertaken by her between 2003 and 2009. By reference to medical records of the mother’s cardiologist, tendered as Exhibit M2, her heart condition is not a problem of concern. The medical records disclose nothing untoward. In any event, the father ultimately conducted a case that the mother was medically capable of having the child live with her.

7. The irony about the father’s approach is that the father has more significant health problems than the mother. He was hospitalised in February 2009 and has been unable to work since. He has collapsed about six times within the last year. Initially it was thought that he had a heart complication, but his affliction is now thought by his doctors to be a form of epilepsy. He is medicated, which seems to be now controlling the condition. He will be reviewed in February 2010. He is unable to drive, and that situation will not change before his next medical review.

Section 60CC(3)(f)

1. The child has moderate intellectual disability by reason of his Down Syndrome. His level of intellectual function has been assessed at school and he is placed in an “IO” class in Year 8 at the secondary school he attends.

2. Because of the child’s disability, he and his peers are educated according to a modified curriculum at the school, which is commensurate with their ability. The curriculum includes modified physical and sporting activity. It also includes activities designed to improve “living skills”, such as teaching the students how to shop for groceries, handle money, use public transport, and prepare meals. The emphasis on academic achievement is diminished.

3. The mother regards that curriculum as advantageous for the child, because she appreciates the likelihood of the child outliving the parties and him then having a need to fend largely for himself in the community.

4. The father does not agree, for reasons which remain unclear.

5. The father is disgruntled about the lack of emphasis on traditional language and mathematical tuition. He admitted that he may have said to the head teacher, Mr L, words to the effect of:[39]

   “Why are you going out of the school, and not being in class teaching reading and writing?”

   [39] Affidavit of Mr L filed 13/11/09, par 45

6. The father did not elaborate in his evidence how he thought that form of traditional education might be more valuable to the child than the curriculum he is currently being taught. Mr L said that the father has challenged him about most aspects of the living skills program.

7. The father said in cross examination that he did not think it was very important for the child to receive training in shopping and travelling on public transport at school, but then later said that he thought a travel-learning program was essential for the child. I cannot reconcile the contradiction, unless the father meant that he should teach the child living skills instead of the school.

8. It is common ground that the father revoked his parental permission for the child to participate in educational activities that took place outside the school grounds. Mr L said that that occurred in the middle of the second term, in about May 2009. The father said that he did so because he was concerned about the child’s safety.[40] He was not satisfied that the child would be properly supervised by the teachers, whom he described as incompetent. He has no respect for them.

   [40] Family Report, par 37

9. The father said that he had explained his decision to the child, telling him that the outside-school activities were not safe for him, and that the teachers had “not been doing the right things”. He also explained to the child that his decision was the fault of the teachers, not the fault of the child. The father said that he considered it important that the child realised whom was at fault for the decision. The father may genuinely believe in his motives, but he derives no objective support from the evidence. His decision seems almost perverse.

10. Mr L said that he believed that the father revoked his permission for the child to participate in outside-school activities because the father was dissatisfied with the level of communication between himself and the school. He had no recall of the father asserting safety concerns as the reason for his decision.

11. The reason for the father’s decision is much less important than the ramifications of his decision. The consequence of the revocation of permission by the father was that the child was then precluded from partaking in important outside-school activities. The child missed participation with his class peers in weekly shopping trips, travel training, and visits to a farm and a reptile park. The importance of the shopping trips is that the students buy groceries for their “breakfast club”, conducted on Friday mornings, which involves them in food preparation and household maintenance. The outside-school activities are also a focus for class lessons back at the school. By missing the outside-school activities, the child was deprived of fulsome participation in school-based activities as well. Moreover, whilst his usual classmates were away at outside activities, the child had to be temporarily moved to another class or be supervised alone.

12. The child was highly distressed by his preclusion.[41] He had been designated as a leader in his shopping group and had noticeably improved his living skills whilst participating in the program. His withdrawal from the program was of such significance that the teachers at the school were concerned for the child’s welfare.[42] Mr L elaborated those comments in his cross examination. He said that the child was very withdrawn.

    [41] Family Report, par 56

    [42] Family Report, par 107

13. In stark contrast to that evidence, the father said that he did not notice any affect at all on the child as a result of him withdrawing permission for the child to participate in activities outside school grounds. Apart from once mentioning missing out on ten-pin bowling, the child seemed to the father utterly unconcerned. The father still maintained that he would withdraw his permission for the child to participate in outside-school activities if the school did not provide him with information which met his satisfaction.

14. The father said that he did not want the child to participate in any sport like soccer or hockey, which he described as violent. The father said that he thought that athletics might be suitable. The father admitted telling Mr L that he had not played sport at school and did not want the child to play sport at school either.[43] Mr L reported his impression that the father was very negative about the child’s participation in sport at any level, even though the sporting activities at the school were modified commensurately with the children’s disabilities. It was difficult to fathom the depth of the father’s concern, given that the child had never been injured at school.

    [43] Affidavit of Mr L filed 13/11/09, par 50

15. The father admitted having contemplated moving the child to a different school, but was impelled to concede that the school he currently attends is the only one within reasonable distance that has a curriculum expressly designed to meet the needs of disabled students like the child.

16. During his cross examination, the father conceded that he really believed that the child should be home-schooled. In fact, he thought that all children should be home-schooled. Although he recognised that the child received the benefit of peer interaction at school, the father said that he could teach the child all of the necessary skills that he would need for life.

Section 60CC(3)(g)

1. There is nothing about the sex, lifestyle, or background of the child or the parties that is relevant to these proceedings.

2. The child’s emotional maturity is restricted by Down Syndrome, but the consequences of that condition are relevantly addressed elsewhere.

Section 60CC(3)(h)

1. Neither the parties nor the child identifies as Indigenous Australian.

Section 60CC(3)(i)

1. The mother unilaterally ceased compliance with the interim parenting orders made in January 2008 following the incident between the father and Mr S on 10 March 2008, by preventing the child from spending time with the father. That hiatus lasted for some five months before the child again began spending time with the father. Whether the mother had good reason to act in that way is a moot point. However, it could hardly be doubted that child would have been adversely affected by being deprived of interaction with his father for such a prolonged period.

2. The mother purports to maintain a belief that the child was not emotionally affected at all by his separation from the father, because he showed no signs of it. The Independent Children’s Lawyer contends that such evidence demonstrates a lack of insight on the part of the mother. I accept that submission. It is evidence that permits a conclusion that the mother has not always had the responsibilities of parenthood at the forefront of her mind. She was preoccupied with the parental conflict, rather than the emotional needs of the child.

3. The father refused to disclose to the mother the address and landline telephone number of Ms C, the person he described as his girlfriend. The relevance of Ms C and her residence is that the father admits spending several nights per week in her home, and that he often takes the child to stay with him at that home. He plans, within the near future, to live permanently with Ms C and for the child to spend time with the father in their household. The father also asserts that there is no reception for mobile telephones at Ms C’s home.

4. In the face of those incontrovertible facts, the father was either unwilling or unable to grasp the significance of his refusal to disclose the details of Ms C’s address and telephone number to the mother. He lamely asserted that he was not at liberty to disclose the details without the permission of Ms C. He thought that when Ms C gave evidence she might only provide the details to the Court in a sealed envelope.

5. Ms C was complicit in the maintenance of secrecy. She refused to disclose the details too. Her explanation was that she had been told by the paternal grandmother of threats made by the mother against the paternal grandmother, and that she had been told by the father that the mother had assaulted him, inferring that she was fearful of the mother. Her explanation is hardly convincing, given that the paternal grandmother herself paid the alleged threats no heed, and that the father affects no genuine fear of the mother. Ms C conceded that she had never met the mother, never spoken to her, and never even corresponded with her.

6. Ms C did mention that she “had some dramas” with her estranged husband, who had physically abused her, but that clearly had nothing to do with the mother and constituted no valid reason for depriving the mother of her contact details.

7. The persistent refusal of the father to disclose the contact details of Ms C to the mother reflects poorly upon his parental responsibility. That is particularly so when his refusal arguably constitutes a contravention of a Court order requiring such disclosure.[44]

   [44] Order 7 made 9/7/09

8. It would be churlish for the father to argue that he was not required by the Court order to divulge the contact details of Ms C, since her home was not his place of permanent residence. The father admits that he spends a good part of the week at her home. If Ms C’s evidence is accepted, he often spends more time at her home than at the home of the paternal grandmother.

9. The school environment is enormously important for the child. It is a source of routine, security, peer interaction, and essential life educational skills for him. The fractured relationship between the father and staff members of the school therefore takes on acute significance. A parent demonstrating a proper attitude to the child, and to the responsibilities of parenthood, would give immediate and serious thought to the way in which he could repair a deteriorated relationship with school staff. The father said that he had no plan about how to overcome his problems with the school. He had not considered offering an apology, because he did not see the need. He had obviously thought little of it.

10. It is obvious that the father’s perception is at odds with the teachers. They lay the blame with him. If the father was possessed of insight, he might consider offering an apology for his behaviour to improve his relationship with the school for the sake of the child. It would not matter that the father genuinely believes that an apology by him is unjustified. An apology would be an act of conciliation that would likely relieve a tension of which the child must certainly be aware.

Section 60CC(3)(j)

1. The issue of family violence has already been addressed under s 60CC(2)(b) of the Act. There is nothing to add.

Section 60CC(3)(k)

1. A family violence order is in existence. It is the Apprehended Violence Order made against the father by the Wyong Local Court on 3 April 2008.[45] The order was made for a period of 2 years, expiring on 2 April 2010.

   [45] Exhibit M1

2. There is no evidence as to whether the application for the making of that order was contested by the father. In all probability it was not, because it was made consequent upon the father’s plea of guilty to the charge of assault arising out of the incident on 10 March 2008. That event was the genesis for both the charge and the application for the family violence order.

3. One part of the family violence order is inconsistent with both the existing interim parenting orders and the various final parenting orders proposed by the parties in these proceedings.

4. Paragraph 13.6 of the family violence order provides as follows:

   “The defendant must not approach or contact the protected persons by any means whatsoever, except through the defendant’s legal representative or to arrange access to the children (sic)”

1. The “defendant” is of course the father.

2. The “protected persons” are Mr S, the child, and the mother.

3. There are no “children” – only the child.

4. The family violence order precludes the father contacting the mother to discuss issues relevant to the child. That is because he can only contact her at all via his legal representative, and only then for the limited purpose of arranging “access” to the child, which is obviously intended as a reference to the time that the child will spend with the father.

5. The family violence order even precludes the child from spending time, or communicating, with the father. That is because the child is designated as a protected person, and the father is therefore only permitted to contact the child via his legal representative to arrange “access” with him – not to actually exercise it.

6. The literal terms of the family violence order are untenable in the face of the proper parenting orders that this Court is enjoined to make. The orders made by the Court specify the inconsistency with the family violence order and explain how those parenting orders will operate, as required by s 68P(2)(a),(b) of the Act.

7. The child and the parents are all privy to the family violence order, and these proceedings. Mr S is privy to the family violence order and was a witness in these proceedings. The following explanation is given to the parties pursuant to the Court’s obligations under s 68P(2)(c),(d) of the Act:

   a)The parenting orders are inconsistent with paragraph 13.6 of the family violence order because they require the mother and father to contact and approach one another, and for the child and father to approach and contact one another.

   b)It is necessary to make parenting orders which are inconsistent with paragraph 13.6 of the family violence order in order to promote the child’s best interests.

   c)The child’s best interests are promoted by him spending time, and communicating, with the father. That will be aided by the mother and father having contact with one another, in person, by telephone, and in writing, to ensure that occurs. It will also be aided by Mr S being able to participate in that process.

   d)The parenting orders set out how the child is to spend time, and communicate with, the father.

   e)The parenting orders do not require breach of paragraphs 1(a), 1(b), 1(c), or 3 of the family violence order, which paragraphs are consistent with the parenting orders. The parenting orders and those paragraphs of the family violence order may be consistently obeyed.

   f)Contravention of the family violence order will be dealt with by prosecution in the Local Court of NSW.

   g)Contravention of the parenting orders will be dealt with under the terms of the Act.

Section 60CC(3)(l)

1. Making an order that the child live with the mother is consistent with the revised positions of all parties in the proceedings. Therefore, making an order that the child live with the mother is not likely to lead to further litigation.

2. Orders dictating the time that the child is to spend with the father and the paternal grandmother are just as susceptible to challenge by the mother, father, and paternal grandmother, irrespective of whether those orders bear closer resemblance to the orders proposed by one party or another. The orders made do not therefore increase the prospect of further proceedings.

Section 60CC(3)(m)

1. The parties have all professed a willingness to participate in counselling in an attempt to improve the level of communication between them. Mr S and Ms C also expressed their willingness to be involved. That is a positive outcome.

2. The parties are also willing to implement a communication book to pass between them with the child. That is also a positive outcome.

Parental Responsibility

1. Given the finding about the past occurrence of “family violence”, the presumption of equal shared parental responsibility does not apply.

2. If equal shared parental responsibility is to be allocated to the parents then it is because the child’s best interests demand that outcome, not because of the application of a presumption.

3. The mother seeks the allocation of parental responsibility for the child to her solely in respect of decisions pertaining to the child’s education and medical management. The father concedes the allocation of sole parental responsibility to the mother, but only in respect of the child’s education.

4. The past existence of family violence plays little, if any, part in the mother’s decision to seek such orders. Her reasoning is that the father holds views about those issues which are so divergent from her own that an arrangement of shared parental responsibility for those issues would be bound to fail. She maintains that even though she would have sole parental responsibility for decisions of that sort, she would keep the father appraised of her decisions and the developments for the child.

5. The views stridently expressed by the father about his preferences for the child’s method of education lead inexorably to the conclusion that there is likely to be little, if any, consensus between him and the mother on that topic. Education is of such fundamental importance to the child that one party ought be allocated sole parental responsibility for making decisions about it. That party should be the mother. To his credit, the father now realises that.

6. As the mother’s counsel ably pointed out, that outcome is not necessitated because the father’s views on education are unconventional. Rather it is because the mother advocates for retention of the child’s existing educational arrangements, which will enhance stability for the child. His 2009 school reports suggest that he is progressing reasonably well at school.[46] It is also because the mother has a much more cohesive working relationship with the child’s school. The father’s relationship with the school has broken down and the father has no apparent interest in reconciliation.

   [46] Exhibits ICL2 and ICL3

7. The submission for the allocation of sole parental responsibility to the wife in respect of the child’s medical management is rejected. The same considerations do not apply concerning that issue. The parties have a mutual interest in the child maintaining good health and they apparently have convergent views about how that should be achieved. There is no evidence of the parties falling into dispute over the child’s health care in the past. The mother’s motivation in seeking sole parental responsibility for the child’s medical management seemed to be premised upon her opinion that it would be easier for her to arrange his attendance at medical appointments if she had sole control. A simple administrative consideration such as that does not justify the allocation of sole parental responsibility.

8. Otherwise, the mother was agreeable to the allocation of equal shared parental responsibility. The Independent Children’s Lawyer concurred. The father sought equal shared parental responsibility across the board, so his agreement to equal shared parental responsibility for residual major long-term issues affecting the child was manifest. The best interests of the child dictate that outcome.

9. Although there have been undoubted difficulties in communication between the parties, each acknowledges a need to improve the quality of communication, and each asserts a willingness to implement improvement. Participation in counselling and use of a communication book were but two ideas endorsed by the parties. The evidence does not demand a finding that the parties are so intractably entrenched in conflict that they are incapable of written communication to rationally discuss and resolve matters of importance in the child’s life.

Living Arrangements

1. By the conclusion of the case it was agreed that the child should live with the mother. The remaining questions were as to the time to be spent by the child with the father and paternal grandmother.

2. The mother proposes that the child spend each alternate weekend with the father. The father wants that time to occur every weekend. The Independent Children’s Lawyer adopts an intermediate proposal, where the child spends each alternate weekend with the father, but also the intervening Friday nights with the father.

3. The mother proposes that the weekend time that the child spends with the father conclude on Sunday evening rather than on Monday morning before school. She was aware that Ms W recommended conclusion of the time on Monday morning before school. The mother considered a Sunday evening conclusion to be better for the child because it enabled him to settle back in at home before commencement of school the next morning. In that way, a regular routine would be established where the child always attends school by departure from the mother’s home.

4. Ms W was asked to express a view on that. She thought that the outcome would be dictated by independent reports from the school about the child’s behaviour on Monday mornings. That evidence was forthcoming from the head teacher, Mr L. He said that the child is noticeably unsettled at school every alternate Monday morning following his weekend time with the father, which was now predictable. Monday is an important day for the child because that is “shopping day” for the living skills program. In light of that evidence I accept the submissions of the mother and Independent Children’s Lawyer that the child’s alternate weekend time with the father should conclude on Sunday evening.

5. In light of that decision, I regard it as appropriate for the child to also spend the intervening Friday nights with the father, as proposed by the Independent Children’s Lawyer. That may well be an opportunity for the father to arrange for the child to spend some time with the paternal grandmother, as was envisaged by the Family Consultant in her oral evidence. The benefit is that a regular routine is then established for the child to spend every Friday evening with the father and/or paternal family.

6. The mother was opposed to the child spending block time with the father in school holidays. Her opposition was based entirely on her experience of the child’s demeanour following his return to her from the father’s care after the school holidays in October 2009. The mother’s evidence about the child’s unruliness is corroborated by the evidence of Mr L. He spoke of the child’s unsettled behaviour immediately following the resumption of school after those holidays.

7. Nonetheless, that single episode is not sufficient to convince me that the child will always behave that way following school holiday time with the father, or that it justifies making orders that preclude such holiday time being spent by the child with the father. The benefit of periodic lengthier visits by the child with the father outweighs any detriment of unsettled behaviour displayed by the child on his return to the mother. I accept the submission of the father and the Independent Children’s Lawyer to that effect.

8. The child should spend block time with the father in each school holiday period. However, I accept the evidence of the Family Consultant that the Christmas school holidays should be divided on a week-about basis, rather than divided in half. It would not be in the child’s best interests to be away from the mother and Mr S for more than a week at any one time.

9. The parents and the Independent Children’s Lawyer each had different proposals for Christmas Day. The mother seeks that the child spends the whole of Christmas Day with her every year. That is unfair on both the child and the father. The child would be benefitted by spending some of that time with the paternal family. The proposal of the Independent Children’s Lawyer is the most equitable, and likely to be enjoyed by the child the most.

10. All parties were agreed that the child should have regular interaction with the paternal grandmother, which position was supported by the Independent Children’s Lawyer and the Family Consultant. The live issue was whether that time should be ordered discretely from the time spent by the child with the father, or whether the child’s time with the paternal grandmother should occur at times coincidental with the time being spent by the child with the father.

11. All but the paternal grandmother opted for the latter alternative, and I agree.

12. The relationship between the father and the paternal grandmother is strong and mutually supportive. They presently live together. Even when the father shortly moves his permanent place of residence to share with Ms C, he will still have regular and frequent interaction with the paternal grandmother. It is preferable for the child to see the paternal grandmother by informal arrangement between her and the father. That has always happened in the past and there is nothing to suggest that it will not continue in the future.

13. The paternal grandmother’s reason for seeking that the child spend discrete time with her, in addition to that spent by him with the father, is that it was better for her and the father not to have to share their time with the child, as that would reduce their individual enjoyment of time with the child.

14. That reasoning betrays a misunderstanding of the law. The adults do not spend time with the child – the child spends time with the adults. The time spent by the child with the various adults in his life is for the benefit of the child, not the adults. The Court’s decision is informed by what is in the best interests of the child, not the adults. The best interests of the child are served by him spending time with the paternal grandmother when he is otherwise spending time with the father. That minimises complication of the parenting regime, and avoids a multiplicity of changeovers.

Explanation of Orders

1. Orders 5-10 inclusive are the orders proposed by the Independent Children’s Lawyer with respect to the time that the child should spend with the father, which I adopt as being appropriate.

2. The father expressed a preference for changeovers to occur at the child’s school. That is not an attractive proposal in view of the difficulties that have been experienced between the father and staff members of that school.

3. The Independent Children’s Lawyer proposed that the changeovers occur at the mother’s home, but in submissions indicated that she had no opposition to changeovers also occurring at the paternal grandmother’s home. It is difficult to incorporate the father’s residence into the orders because of the fluidity of both his present residential arrangements and future residential plans.

4. The mother proposes that she share the travelling between households for changeovers. That is sensible. Order 11 so provides. Participation by the parties equally in the changeovers is an equitable arrangement, and helps demonstrate to the child that each parent is committed to his relationship with the other parent.

5. The mother sought an order that the child and father communicate regularly by telephone, and confirmed in closing submissions that she maintained that proposal. No other party took issue. I accept that it would be beneficial for the child to remain in frequent telephone contact with the father. Order 12 makes provision for that to occur.

6. The parties all indicated a willingness to participate in counselling. Orders have been made that they do so. The Court cannot compel non-parties, such as Mr S and Ms C, to attend counselling. However, they also indicated a willingness to be involved in the process, so the parties are required to use their best endeavours to have Mr S and Ms C participate.

7. The Family Consultant was pessimistic that counselling would reduce the conflict between the families, but given their mutual willingness to participate, they should certainly be afforded the opportunity.

8. Orders 13-17 and 19-22 inclusive reflect the proposals of the Independent Children’s Lawyer, which were the subject of express agreement by the mother, and implicit agreement by the father and paternal grandmother.

9. The father was not prepared to disclose the residential address of Ms C, so the order proposed by the Independent Children’s Lawyer requiring him to do so was not the subject of his consent. There is no proper reason for the non-disclosure. It should be disclosed. Order 18 now requires it to be so.

10. For those reasons, the orders set out at the commencement of these reasons are made in the best interests of the child.

I certify that the preceding two hundred and twenty two (222) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin.

Associate: 

Date:  22 December 2009