Charr & Dalton (No 3)
[2023] FedCFamC1F 259
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Charr & Dalton (No 3) [2023] FedCFamC1F 259
File number(s): DUC 273 of 2021 Judgment of: SMITH J Date of judgment: 10 March 2023 Catchwords: FAMILY LAW – Parenting – final hearing – father, mother and paternal aunt each seek parenting orders –paternal aunt heavily involved in raising child during parents’ relationship – mother and father both allege family violence - father withdraws application and supports paternal aunt’s application during trial – mother has a tragic personal history – mother has deficits in parenting capacity – paternal aunt offers a safe and stable environment - no capacity for mother and paternal aunt to share parental responsibility - best interests of child - child to live with paternal aunt – child to spend regular unsupervised time with mother – child to spend regular unsupervised time with father – paternal aunt to have sole parental responsibility – ancillary orders. Legislation: Evidence Act 1995 (Cth) ss 76, 79, 140.
Family Law Act 1975 (Cth) Part VII, ss 60CA, 60CC, 65AA, 65C, 65DA
Cases cited: Carlson & Fluvium [2012] FAMCA 32 Division: Division 1 First Instance Number of paragraphs: 401 Date of hearing: 13 – 21 February 2023 Place: Newcastle Counsel for the Applicant: Mr Hogg Solicitor for the Applicant: Central West Legal Pty Ltd Counsel for the First Respondent: Ms Yu Solicitor for the First Respondent: JWP Lawyers Counsel for the Second Respondent: Mr Hogg Solicitor for the Second Respondent: Central West Legal Pty Ltd Counsel for the Independent Children's Lawyer: Mr Mort Solicitor for the Independent Children's Lawyer: Joplin Lawyers ORDERS
DUC 273 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CHARR
Applicant
AND: MS DALTON
First Respondent
MS D
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SMITH J
DATE OF ORDER:
10 MARCH 2023
RECITALS
The following definitions are for the purpose of these Orders:
A.1 “Mother” means the First Respondent, Ms Dalton, born 1987.
A.2“Father” means the Applicant, Mr Charr, born 1978.
A.3“Paternal Aunt” means the Second Respondent, Ms D, born 1972.
A.4“X” means the child, X, born 2019.
A.5“Parties” means the Paternal Aunt, Father and Mother.
A.6“Parents” means the Father and the Mother.
THE COURT ORDERS THAT:
PARENTAL RESPONSIBILITY
1.The Paternal Aunt shall have sole parental responsibility for the long-term decisions relating to the care, welfare, and development of X.
2.Save and except in circumstances of emergency, in exercising parental responsibility the Paternal Aunt shall:
2.1Notify the Mother and Father within forty-eight (48) hours of becoming aware of any long-term decision to be made for X;
2.2Allow the Mother and Father at least seven (7) days to consider the decision and provide input; and
2.3Notify the Mother and Father within forty-eight (48) hours of making the decision which has been made.
LIVE WITH PATERNAL AUNT
3.X shall live with the Paternal Aunt in or about C Town (NSW).
Change of live with arrangements
4.In order to facilitate Order 3 above, the Mother is to provide X to the Paternal Aunt.
5.Changeover is to occur at the Court Children’s Service, at 12.00 pm on Thursday 16 March 2023.
6.Dr J is to be present at the changeover and will explain the change of residence to X at that time.
7.The Independent Children’s Lawyer may also be present to explain the change of residence.
IF THE MOTHER LIVES IN CITY K – SCHOOL TERM TIME
8.If the Mother elects to live in or about City K NSW the following time shall be as set out below:
School term time
9.During school term time, X will spend time with the Mother according to the following fortnightly rotation.
9.1Week 1: from the conclusion of school/daycare (or 3.00pm) Friday until 5.00pm Sunday.
9.2Week 2: from the conclusion of school/daycare (or 3.00pm) until 5.30pm Thursday.
(a)For the purpose of this order:
(i)The Week 2 Thursday shall be the Thursday immediately before the weekend on which X is not spending time with the Mother; and
(ii)The Mother may determine whether the Week 1 weekend commences on the first Friday after school commences or the second Friday after school commences each term, in particular to facilitate X spending time with the half-siblings, and is to notify the Paternal Aunt in writing at least two weeks prior to the school term commencing.
Mother’s Day
10.In the event that Mother’s Day falls on a weekend when X is not already spending time with the Mother, X shall spend time with the Mother from 1.00pm to 5.00pm on Mother’s Day.
Short school holidays
11.X shall spend time with the Mother during the Term 1, 2 and 3 school holidays, from the conclusion of school/daycare on the last day of term until 5.00pm on the second Saturday of the holiday period.
12.Other time ordered in these holiday periods shall be suspended.
IF THE MOTHER ELECTS TO LIVE IN CITY B – SCHOOL TERM TIME
13.If the Mother elects to live in or about City B, including the City R LGA (NSW) (hereafter “City B”) the following time shall be as set out below:
School term time
14.During school term time, X will spend time with the Mother on the 3rd and 6th weekend of each school term from Friday evening until Sunday evening.
15.The changeover times and locations as specified elsewhere in these Orders for change overs between C Town and City B.
School holidays
16.X shall spend time with the Mother during the Term 1 and 3 school holidays from the conclusion of school/daycare on the last day of term until 5.00pm on the second Saturday of the holiday period.
17.X shall spend time with the Mother during the Term 2 school holidays, from the conclusion of school/daycare on the last day of term until the last Saturday before school recommences.
18.The changeover times and locations as specified elsewhere in these Orders for change overs between C Town and City B.
19.Other time ordered in these holiday periods shall be suspended.
CHRISTMAS SCHOOL HOLIDAYS – REGARDLESS OF WHERE MOTHER LIVES
20.Regardless of whether the Mother elects to live in City K or to live in City B, during the Term 4 / Christmas school holiday times, unless otherwise agreed, X will spend time with the Mother and the Paternal Aunt on the following rotating basis.
21.In odd numbered years X shall spend time as follows.
(a)Mother – from the conclusion of school/daycare on the last day of the school term until 5.00pm on 27 December.
(b)Paternal Aunt – from 5.00pm on 27 December to 5.00pm on 3 January.
(c)Mother – from 5.00pm on 3 January to 5.00pm on 10 January.
(d)Paternal Aunt – from 5.00pm on 10 January to 5.00pm on 17 January.
(e)Mother – from 5.00pm on 17 January to 5.00pm on 24 January.
(f)Paternal Aunt – from 5.00pm on 24 January until the commencement of school Term 1.
22.In even numbered years X shall spend time with each of the Mother and the Paternal Aunt during the Term 4 Christmas School holiday on the reverse basis to the Order above, save that order (f above) will go from 5.00pm on 24 January until 5pm on the last Saturday before Term 1 commences.
23.The times set out above shall be the changeover times if the Mother lives in City K.
24.If the Mother lives in City B the changeover times will be as set out in the Orders concerning changeovers at S Town Service Station elsewhere in these orders.
25.Other time ordered in these holiday periods shall be suspended.
PATERNAL AUNT - FIRST OPTION TO CARE FOR X
26.In the event the Mother or the Father is unable to care for X during the time X is spending with the Mother or the Father pursuant to these Orders, the Mother or the Father is to notify the Paternal Aunt, and the Paternal Aunt is to be given first option to care for X.
SPEND TIME WITH FATHER
Father - courses
27.The Father may enrol in, and subsequently complete, a “Parenting After Separation” parenting course and a “Circle of Security” parenting course.
28.If the Father completes these courses he shall thereafter provide a copy of the certificates of completion to the Paternal Aunt.
29.The Paternal Aunt shall provide to the Mother a copy of the certificates of completion within seventy-two (72) hours of receiving same from the Father.
30.If the Father elects not to comply with the Order concerning the completion of a “Parenting After Separation” parenting course and a “Circle of Security” parenting course then the Father shall be restrained by injunction from spending any unsupervised time with X.
31.The Paternal Aunt shall be restrained by injunction from permitting the Father to spend unsupervised time with X until the Father has provided evidence of completion of those two courses.
Spend time with Father
32.Conditional on the Father’s compliance with the Order concerning the completion of a “Parenting After Separation” parenting course and “Circle of Security” parenting course, X shall spend the following time with the Father.
Term time
33.If the Mother lives in City K, on the alternate weekend to the weekend X spends with the mother, from the conclusion of school/daycare (or 3.00pm) Friday until 5.00pm Sunday.
34.If the Mother lives in City B, on up to half the weekends during term time, as agreed with the Paternal Aunt, from the conclusion of school/daycare (or 3.00pm) Friday until 5.00pm Sunday, but not so as to interfere in X’s time with the Mother.
Holidays
35.X may spend time with the Father in holiday times when X is spending time with the Paternal Aunt, as agreed in writing between the Paternal Aunt and the Father.
36.However, the Father and the Paternal Aunt are restrained from allowing X to spend more than four (4) consecutive nights with the Father in any holiday period, or more than four (4) nights in total during the Term 1, 2 or 3 holidays, or more than eight (8) nights in total during the Term 4 / Christmas holidays.
Father’s Day
37.If the Mother elects to live in or about City K NSW, in the event that Father’s day falls on a weekend when X is not already spending time with the Father, X shall spend time with the Father from 1.00pm to 5.00pm on Father’s Day.
CHANGEOVER LOCATIONS AND TIMES
Changeover in City K
38.If the Mother lives in City K:
39.Changeover will occur at the start or end of a school/daycare day by delivering X to or collecting X from her school/daycare.
40.In the event that changeover occurs on a non-school/daycare day, or outside of school/daycare hours, at the commencement and conclusion of the Mother’s time, the Paternal Aunt and the Mother shall meet at City K McDonalds, at the nominated times, noting that any change to the changeover location or time must be agreed by the Paternal Aunt and Mother in writing.
41.The Paternal Aunt may act through another family member including her husband, daughter, or the father’s parents, with prior notice to the Mother, but that other family member shall not include the Father.
42.The Father is restrained by injunction from attending at changeovers.
Changeover if Mother lives in City B – S Town
43.If the Mother lives in City B, changeover will occur at the S Town service station, or such other place as may be agreed in writing between the Paternal Aunt and the Mother.
44.The Paternal Aunt may act through another family member including her husband, daughter, or the father’s parents, with prior notice to the Mother, but that other family member shall not include the Father.
45.The Father is restrained by injunction from attending at changeovers.
46.On school term weekend changeovers, regardless of the time specified elsewhere the parties shall meet at the changeover location at 7.00pm on the Friday evening after school/daycare and at 4.00pm on the Sunday evening.
47.For school holiday changeovers, regardless of the time specified elsewhere, the Parties shall meet at the changeover location:
(a)At 7pm on the Friday evening after school finishes;
(b)At 4pm otherwise.
48.The times in this section of the Orders for “Changeover if Mother lives in City B – S Town” shall take precedence over the times otherwise stated for changeovers if the Mother lives in City B.
AUDIO-VISUAL COMMUNICATION
If the Mother elects to live in City K
49.If the Mother elects to live in City K then X shall have audio-visual communication with the Mother as agreed with the Paternal Aunt, or otherwise as follows:
(a)Each Thursday from 6-6.30pm when X is not with the Mother.
(b)Each Sunday from 6-6.30pm when X is not with the Mother.
(c)At any other time X reasonably requests.
If the Mother elects to live in City B
50.If the Mother elects to live in City B then X shall have audio-visual communication with the Mother as agreed with the Paternal Aunt, or otherwise three (3) times per week as follows:
(a)Each Sunday, Wednesday and Friday from 6-6.30pm.
(b)At any other time X reasonably requests.
School holidays
51.On the Wednesday of each school holiday period X is with the Mother, X is to have audio-visual communication with the Paternal Aunt between 6-6.30pm.
52.During school holiday times when X is with the Paternal Aunt, or with the Father, X’s audio-visual communication with the Mother shall continue as set out above.
Child’s Birthday
53.A Party that is not spending time with X on her Birthday may communicate with X between 6-6.30pm on that day.
Parties to facilitate
54.The Party X is with is to do all things reasonably necessary to facilitate X’s audio-visual communication pursuant to these Orders.
55.The audio-visual communication with the Mother shall be facilitated by the Paternal Aunt or an adult other than the Father.
INFORMATION
Medical
56.In circumstances that X needs to attend any medical, allied health or educational appointment the Paternal Aunt must inform the Mother and Father of the time and date of the appointment, upon making such appointment, and the Mother will be at liberty to attend each appointment.
57.The Paternal Aunt shall notify the mother of each appointment within 24 hours of it being made.
58.The mother is to notify the Paternal Aunt whether she proposes to attend no less than 3 days prior to the appointment, or if notified in a shorter period within 24 hours of being advised of the appointment.
59.Should the Mother elect not to attend, or not to advise the Paternal Aunt she is attending, then the Father is at liberty to attend.
60.Each Party shall notify the Paternal Aunt of any medical emergency, illness or injury suffered by X whilst in their respective care, and if it requires treatment by a third party, shall inform the Paternal Aunt of the details of the third party, and shall authorise any treating health professionals and/or allied health professionals to communicate with the Paternal Aunt about the condition and treatment of X.
61.In circumstances that X takes prescribed medication, the Party who buys X’s medication will provide the other Parties (Paternal Aunt, Father and/or Mother) with the medication and instructions for its use, when X goes into the other Party’s care.
62.The Parties all have liberty to provide a copy of these Orders to any medical or allied health care practitioner and these Orders operate as an Authority to provide to any Party all relevant information concerning X’s health and wellbeing.
School and extra-curricular activities
63.The Paternal Aunt is to enrol X at C Town Early Learning Centre as soon as is reasonably practicable.
64.The Parties each be permitted to liaise directly with X’s school/daycare, school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other information usually provided to parents about X’s progress.
65.The Paternal Aunt and Mother are at liberty to attend X’s school/daycare for the purposes of any function or activity normally attended by parents.
66.Should the Mother elect not to attend, or not to advise the Paternal Aunt she is attending, then the Father is at liberty to attend.
67.The Parties all have liberty to provide a copy of these Orders to any school/daycare or extra-curricular organisation and these Orders operate as an Authority to provide to any Party all relevant information concerning X’s education or extra curricula activities.
Extra-Curricular Activities
68.Should the Paternal Aunt wish to enrol X into any extra-curricular activities, the Paternal Aunt must provide the Mother and the Father with a schedule of information in relation to the extra-curricular activity, which will contain:
68.1The name of the extra-curricular activity and the organisation of which the extra-curricular activity is conducted with;
68.2The commencement and conclusion dates of the extra-curricular activity;
68.3The specific days of the extra-curricular activity;
68.4The time of the extra-curricular activity;
68.5The cost of the extra-curricular activity;
68.6The uniform cost of the extra-curricular activities;
68.7The travel associated with the activity (if there is additional travel on game days or competition dates).
Extra-Curricular Activities – if the Mother lives in City K
69.If the Mother lives in City K, each Party is to ensure that X attends the extra-curricular activities and will ensure that X has consistency between the three (3) homes.
70.Should the Mother or Father be unable to facilitate the extra-curricular activity they are to advise the Paternal Aunt, seventy-two (72) hours prior and the Paternal Aunt will make arrangements for X to attend.
71.The Paternal Aunt and Mother are at liberty to attend X’s extra-curricular activities, training and any other special events if such events occur during X’s time with the other.
72.Should the Mother elect not to attend, or not to advise the Paternal Aunt she is attending, then the Father is at liberty to attend.
Extra-Curricular Activities – if the Mother lives in City B
73.If the Mother lives in City B then X’s time with the Mother’s will take precedence over any extra-curricular activities.
74.The Mother will still be at liberty to attend any extra-curricular activity as if she lived in City K.
Non-denigration
75.Each Party is restrained from denigrating the other Party or members of their family in the presence or hearing of X and from permitting X to remain in the presence or hearing of another person denigrating the other Party, and each Party shall immediately remove X from any location where the denigration is occurring by third parties.
76.Each Party is restrained from denigrating the other Party or members of their family on social media including but not limited to Facebook, Instagram and Snapchat.
Restraints
77.No Party is to physically discipline X nor to allow any other person to physically discipline X.
78.The Father and the Mother are not to drink alcohol, nor use illicit or non-prescription drugs for 24 hours prior to, or during the time when, X is in their care.
79.That the Mother and the Father are restrained from allowing X to be left unsupervised in the care of any third party without the expressed written consent of the Paternal Aunt.
(a)This includes, but is not limited to, Mr O, Ms N and/or Ms N’s extended family. This Order is made without any adverse finding but due to a lack of information available to the Court about their capacity to provide a safe environment for X.
(b)This includes, but is not limited to, people that the Father may date or have a relationship with from time to time.
(c)This includes, but is not limited to, people that the Mother may date or have a relationship with from time to time.
(d)This does not include the Paternal Aunt’s, husband, or daughter or, parents, or sister, or brother-in-law.
80.Should the Father commence a relationship, the Father is to provide the Paternal Aunt his partner’s full name (or any name that they have previously been known as), date of birth and current address and full disclosure as to their criminal history, and the Paternal Aunt is to provide this information to the Mother.
81.Should the Mother commence a relationship, the Mother is to provide the Paternal Aunt her partner’s full name (or any name that they have previously been known as), date of birth and current address and full disclosure as to their criminal history.
82.The Paternal Aunt in the exercise of her Sole Parental Responsibility may determine whether any third party, including the any new partner of either the Mother or the Father, is a person with whom X may spend time and the circumstances in which X may spend such time.
Current contact details
83.Each Party must keep the other Parties informed of:
83.1Their respective residential address.
83.2Any mobile telephone numbers and/or email addresses that they have available from time to time.
83.3At least one telephone number at which they can each be contacted at all hours.
83.4Each Party must notify the other Parties in writing of any change of such particulars within 24 hours of change.
Parenting App and communications
84.The Paternal Aunt and Mother are to communicate through the co-parenting app DIVITTO APP or APPCLOSE in relation to all issues relating to X.
85.Where strictly necessary, the Father and Mother are to communicate through the co-parenting app DIVITTO APP or APPCLOSE in relation to all issues relating to X
86.All communications will be civil, polite, not involve derogatory or offensive language, and shall be solely directed to issues relating to X or compliance with these Orders.
EXHIBIT ICL5
87.After the time for filing of any Appeal, or at the conclusion of any Appeal, the parties legal representatives are to destroy or delete any copy of the text messages and images tendered and admitted as Exhibit ICL5.
88.The Parties are restrained by injunction from distributing or publishing in any way the contents of ICL5 to any third party.
COSTS
89.There be no Order as to costs for either party or the Independent Children’s Lawyer.
AND THE COURT NOTES:
A.The Court recommends that the Paternal Aunt and the Mother engage in Family Therapy.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Charr & Dalton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
Smith J:
INTRODUCTION
These are oral reasons for judgment after a final hearing about what parenting orders, pursuant to Part VII of the Family Law Act 1975 of the Commonwealth (the Act), are in the best interests of X, born 2019, who is now just over four years of age. I will refer to her as “X” or “the child”.
The three parties to these proceedings are X’s parents: the applicant, Mr Charr, born 1978, now aged 44, who I will refer to as “the father”; the first respondent, Ms Dalton, born 1987, aged 36, who I will refer to as “the mother”; and finally, the second respondent, who is the father’s older sister, Ms D, born 1972, now aged 51, who I will refer to as “Ms D” or “the aunt”.
An Independent Children’s Lawyer (“ICL”) was appointed to represent X’s interests.
The parties met online in about late 2017, commenced their relationship in about early 2018, had X in 2019, separated initially on or about 14 June 2021, and, separated finally on about 28 June 2021.
Since then X has been living with the mother and spending supervised time with the father.
A Court Child Expert was appointed by the Court. That expert is Dr J, who I will refer to as “the expert”. The expert provided a Family Report in the usual way. In that Family Report the expert assessed the mother’s parenting capacity as limited, and recommended that if the Court had concerns about the father, which I do, that X should live with Ms D, if Ms D was willing to have that occur. The expert’s reasons for those opinions will be discussed in more detail at a later stage.
I note that the expert maintained her position in her oral evidence after being provided with a summary of the parties’ evidence at trial, including by reference to certain documents. Unsurprisingly, the parties, in effect, ran the trial around the issues as identified in that expert opinion. The identification of the issues, of course, having been largely based upon the issues raised by the parties in the material given to the expert and in their conferences with the expert.
The ICL, in closing submissions, said that it would be a hard heart that did not feel great sympathy for the mother, and I agree. The mother has had what can only be described as a tremendously difficult life. She has clearly worked hard to improve herself and her lot in life, and to do the very best she can for X. I say, without any hesitation, that the mother is to be congratulated for the enormous strides forward she has made in her life.
However, as the ICL also submitted, this Court is not here to reward or punish the mother, nor to reward or punish the father, nor the aunt. Nor, contrary to the closing oral submissions made for the mother, is the test that I am to apply the welfare test, sometimes informally described as the “good enough” test.
Rather, I am bound to hear and determine this case pursuant to the statutory provisions and pathway set out in the Act. The Act says that the paramount consideration that guides and legally binds me is the determination of what orders are in X’s best interests, as determined by reference to the criteria and pathway set out in the Act given the evidence before me.
As the parties are listening, and to avoid the additional strain of having to wait for an extended time to learn the result in an oral decision, I will indicate my decision now.
I have spent considerable time reviewing my notes of the oral evidence, and also the quite extensive documentary evidence. For reasons which I will give, I have largely accepted the opinion of the expert, having come to similar conclusions about the factual issues based on the evidence led, and have therefore substantially adopted, with some modifications, the final proposal of the Independent Children’s Lawyer, which was in turn based on the expert’s opinion.
I note that the ICL’s final proposal was adopted by both Ms D and the father, but opposed by the mother.
The evidence convincingly persuades me that X’s best interests are met by the orders which I will make, which, in effect, are that X is to live in C Town in New South Wales with Ms D. C Town is a short drive from City K. I note that the orders are that X will live with Ms D rather than either of the parents, in circumstances where the father accepted that proposal.
In closing submissions, the mother proposed sole parental responsibility for herself. The ICL and the other parties proposed sole parental responsibility for Ms D. It is clear that the damaged nature of the relationship between the parents, and between the mother and Ms D, means that it would not be feasible for the parties, or for the mother and Ms D, to jointly exercise sole parental responsibility in a way which would meet X’s best interests.
Again, as the parties are primarily interested in the final orders I will make, rather than make them wait, I will go through now the final orders I will make today. I note that they are not quite as proposed by the ICL, and I have made some variations to balance out certain issues where I thought it appropriate.
I will summarise them rather than reading them onto the record. Starting with parental responsibility; Ms D shall have sole parental responsibility for the long-term decisions relating to the care, welfare and development of X. Save and except in circumstances of emergency. However, in exercising that responsibility, Ms D shall notify the mother and father within 48 hours of becoming aware that a decision needs to be made, will give them seven days to consider the issue and to provide input, and then notify the mother and father within 48 hours of the decision she has made.
I will, as I have said, order that X live with the Ms D in or about the city of C Town, New South Wales. In terms of a changeover of X, in order to facilitate the order that X change primary residence from the mother to Ms D, again largely in line with the proposal made by the ICL, the Court has arranged for Dr J to be present at the Court Children’s Services, at 12.00pm next Thursday, 16 March 2023. The ICL may also be present at that time. The purpose of this order is to allow the expert to explain to X, in a child-appropriate manner, the nature of the orders and why the orders are being made.
I will come later to the fact that whilst the expert considered X would have no difficulty with a change of primary residence, I have no doubt that change will, in the short-term at least, be a highly traumatic event for X.
The mother, in the course of her evidence, was asked questions about where she would propose to live in certain circumstances. I note that at one stage in her affidavit she had talked about living in Sydney because her older children (who I will come to and discuss later) live there and spend time with the mother. Ultimately, the mother’s proposal was to continue living in City B. However, she was asked whether she would consider living in C Town or City K. The mother indicated she could not live in C Town, and I accept that for reasons I will go to later. However, she said she might consider living in City K, if it meant that she could spend more time with X if the Court changed X’s primary residence.
In those circumstances, I have structured the orders to take into account the mother making a decision either to live in City B or to live in City K. I note that there is no issue here of requiring the mother to choose a place of residence. The orders I make for X to live with Ms D relate to the factors I will come to. It is entirely up to the mother where the mother lives, but as I have said, I am making orders to deal with what I think will be appropriate time with the mother, depending upon where she chooses to live as that will affect the practicality of different time arrangements.
If the mother elects to live in or about City K, New South Wales, then during school term time, in summary, X will spend time with the mother in week 1, from the conclusion of school or day-care or 3.00 pm on a Friday until 5.00 pm on a Sunday, and from the conclusion of school or day-care in week 2, at 3.00 pm on a Thursday until 5.30 pm on that day. The intention, consistent with the ICLs proposal, is that if it is practicable the mother would have alternate weekends with X from the Friday night until the Sunday afternoon, and then in the off week from 3.00 pm until 5.30 pm after school on a Thursday.
I did give some thought to whether I should make orders that as X ages, and perhaps as she reaches high school, that should extend from Friday to Monday morning, and from Thursday night to Friday morning, but for reasons I will come to, which relate largely to the mother’s evident difficulty with organising herself and with lateness, and given the risk that that would pose to X of not attending school on time one day a week, I have decided that balancing those issues, the orders I make are the appropriate orders.
I will make a provision for the mother to determine whether the “week 1” weekend commences on the first Friday after school commences, or the second Friday after school commences, and I do that so that she can be at liberty to coordinate her weekends with X with weekends with her older children, if she can. I will make provision for Mother’s Day.
If the mother is living in or about City K, X will spend time with the mother during the term 1, 2 and 3 school holidays, from conclusion of school on the last day of term until 5.00 pm on the second Saturday of the holiday period. I note that other orders will be suspended during the holidays.
Now, if the mother elects to continue living in City B, and that includes the City R local government area which I will refer to generally as “City B”, then during school term time the long travel time from C Town to the City B region makes alternate weekends impractical and so unrealistic. The reality is that to get X from C Town to City B at the end of the school day means she is not going to end up in City B until late on the Friday night, and then she would have Saturday with her mother, and then would lose most of Sunday effectively just travelling back. Particularly for a young child, there is not sufficient utility in that, and that much travel would put an enormous burden on X.
In circumstances where the mother elects to live in City B, I will order that X will spend time with the mother on the third and sixth weekend of each school term, from Friday evening until Sunday evening, and I deal with the changeover times and locations later in the orders.
In terms of school holidays, what I have done is order that in terms 1 and 3 X will spend half of the school holidays with the mother, but since there will be a significant reduction in regular time during the school term, I will order that X will spend the entirety of term 2 school holidays with the mother if the mother lives in the City B area. The intention of that order is, through the addition of a week during school holidays, to try and balance out the fact that distance will mean that X will spend less time with the mother during the school terms.
The ICL put forward a proposal for the Christmas long school holidays alternating in odd and even-numbered years between the mother and Ms D. I have largely adopted that. It effectively comes out half-half with a regular turnaround.
I will make orders for the changeovers to occur at about 5.00 pm, but that assumes the mother is living in City K. If she is living in City B, then the times will have to be varied to take into account travel, and those times are set out also in the orders.
I note that in the event that the mother or the father, who I will come to in terms of orders in due course, is not able to care for X during the time X is spending with the mother or the father, they are both to notify Ms D, and Ms D is to be given first option to care for X.
In terms of spend time with the father, and I will come to this in due course, the father made a forensic decision, for good reason, not to press his application. I had significant concerns about the father’s evidence. The ICL, doubtless with a careful eye to the mother’s proposal, made a proposal for the father’s time which largely reflected the mother’s proposal for the father’s time. And that proposal, the ICL submitted, effectively deals with the issues of risk in the father’s household. Having considered the evidence and noting I had concerns about many aspects of the father’s evidence, I am overall satisfied that the ICL’s proposal does appropriately deal with any risk issues with the father.
In effect, as a starting point the father will continue to be restrained by injunction from spending any unsupervised time with X. However, as proposed by the ICL, accepted by the father and Ms D, and largely consistent with the mother’s proposal, the father may enrol in and complete a Parenting After Separation and a Circle of Security parenting course. The father said he was going to do the courses, and in effect, I proceed on the basis that he will, but unless and until he does those courses, the injunction stands and he is not to spend unsupervised time with X, and the paternal aunt shall also be restrained by injunction from permitting the father to spend unsupervised time with X.
However, if the father completes these courses, he is to provide a copy of any certificate to Ms D who is to provide copies to the mother, and conditional on him having completed those courses he will be able to spend unsupervised time with X. If the mother is living in City K, then on alternate weekends to the weekends X spends with the mother, I will order that X spend time with the father from the conclusion of school Friday until 5.00 pm Sunday, in the same way. I do not think it is appropriate to extend that to the Monday.
If the mother lives in City B, then on up to half the weekends during the school term and as agreed with the paternal aunt, X can spend time with the father. To some extent, I am leaving that to the discretion of Ms D in her exercise of parental responsibility, but it will not be more than half of the school weekends during school term time.
In school holiday times, X may spend time with the father in holiday times when X is spending time with the paternal aunt. However, consistent with the mother’s proposal, the ICL’S proposal, which I adopt and which the father and Ms D accepted, means that the father and Ms D are restrained from allowing X to spend more than four consecutive nights with the father during the term 1, 2 or 3 holidays, or more than a cumulative eight nights in total during the term 4 Christmas holiday.
That said, there are issues with the father’s parenting capacity, as with the mother’s, which I will not need to go into in great detail, given that the father has, in effect, accepted that he is not to exercise parental responsibility; he has accepted that he will have only some weekend time; and he has accepted that he will have no more than four nights consecutive time in any holidays; and he has accepted conditions about doing courses; and conditions about drinking and not using illicit drugs, which will also apply to the mother.
I do note that the mother had proposed that the father should also do a Men’s Behavioural Change course, but he denies the need for that. Where someone does not accept the need, and where it is difficult for me to make findings about family violence for reasons I will come to, I do not see any utility in making that order and I do not think this renders the other order concerning courses inadequate. The mother also sought orders that the father should have a mental health assessment, but I have sufficient material to satisfy me that that order was not required.
In terms of changeovers if the mother lives in City K, changeover will occur at the start or end of day-care or school by leaving X at or collecting her from school or day-care. On other days, the parties will facilitate changeover at City K McDonald’s.
Ms D can act through other family members, including her husband, daughter, or the father’s parents, with prior notice to the mother, but that shall not include the father, and the father is restrained by injunction from attending at changeovers. That Order goes to my obligation to minimise any long-term issue of family violence noting all of the allegations, and will assist X by minimising the contact between the parents.
If the mother lives in City B, changeover will occur at the S Town Service Station, or such other places shall be agreed between Ms D and the mother. Again, the same injunction restrains the father from attending. Because of the travel time and my concerns about making this work on school term weekend changeovers, and if the changeover occurs at the service station in S Town, it will be 7.00 pm on a Friday after school, and 4.00 pm on a Sunday. That takes into account the fact it will take time to get X there from school, and I do not want her missing any school time on the Friday, and to make sure she does not get home too late on the Sunday. For school holiday changeovers, it will be at 7.00 pm on a Friday evening after school finishes, and at 4.00 pm otherwise.
In terms of audio visual communication, the ICL omitted that; however, both parties included regular FaceTime. I take it that that was just an oversight in the ICL’s proposal. It was included in the original proposals from the parties and I think that is quite appropriate. If the mother lives in City K then it will be each Thursday from 6.00 to 6.30 pm when X is not with the mother, and each Sunday from 6.00 to 6.30pm when X is not with the mother. I note that the mother proposed 6.00 to 6.30pm as the time, and I have adopted that.
If the mother is living in City B, then X should have communication with the mother when she is not with her, each Sunday, Wednesday and Friday, from 6.00 to 6.30pm. I have also indicated that at any other time X reasonably requests, she should be allowed to have FaceTime. Hopefully this will assist her with the change of circumstances. In terms of school holidays, on the Wednesday of each school holiday period X is with the mother, X is to have audio visual communication with Ms D, between 6.00 and 6.30pm, and during school holiday times when X is with Ms D or the father, X’s audio visual communication with the mother shall continue, as I otherwise set out.
I will make orders about birthdays. The parties are required to do all things necessary to facilitate X’s audio communications, and the audio visual communication with the mother should be facilitated by Ms D or an adult other than the father.
There were orders for information about medical appointments. The mother is entitled to attend any medical or educational appointment, if she wants to, but if she does not want to, or she does not notify Ms D she is coming, then the father can attend.
There are standard orders about each party notifying the other about any injury and about handing over medications. A similar approach has been taken in respect of school and extra-curricular activities. Ms D and the mother are at liberty to attend, but if the mother is not going to attend or does not advise Ms D she is going to attend, then the father is at liberty to attend.
Ms D can enrol X in extra-curricular activities, and again, in particular if the mother is living in City K, then Ms D and the mother can attend. If the mother is not going, the father can attend.
If the mother is living in City B, then I will note that, to be clear, X’s time with the mother shall take precedence over any extra‑curricular activity. It is important that X have extra-curricular activities, but that is not to eat into her time with the mother if the mother is living in City B. Obviously, if the mother is in City K and wants to attend, then going along to see X take part in sporting events and school plays and so on is not so difficult.
I will make standard non-denigration orders. No party is to physically discipline X, or allow anyone else to do so. Both the mother and the father are not to drink alcohol or use illicit or non-prescription drugs for 24 hours prior to or during X’s time, or when X is in their care.
Both the mother and the father are restrained from allowing X to be left unsupervised in the care of any third party without the express written consent of Ms D. That includes, but is not limited to, Mr O and/or Ms N’s extended family, and I note that this order is made without any adverse findings concerning these named individuals, but rather due to a lack of information available to the Court about their capacity to provide a safe environment for X. The order includes, but is not limited to, people that both the father and the mother may date or have a relationship with. I specifically exclude the paternal aunt’s husband, daughter, parents, sister or brother-in-law from this order as they are people X knows and who the Court is satisfied are safe adults who can be relied upon to assist with X’s care.
Should either the father or the mother commence a relationship, they are to provide Ms D with information about that person and, consistent with the allocation of sole parental responsibility to her, Ms D, in the exercise of her sole parental responsibility, may determine whether any such third party, including any new partner of either the mother or the father, is a person with whom X may spend time, and the circumstances in which X may spend such time.
The parties are required to keep each other informed of their contact details. The proposed orders are that the parties are to communicate through either the ViTo app or AppClose. It is anticipated the communication will primarily be between Ms D and the mother, but it may be necessary for the father and the mother to communicate, and if they are to do so, they are to use that App. All communication is to be civil, polite, not involve derogatory or offensive language, and shall be solely directed to the issue relating to X and to compliance with these orders.
I am going to make an order, under the heading ICL 5. After the time for the filing of any appeal, or at the conclusion of any appeal, the parties’ legal representatives are to destroy or delete any copy of the text messages and images tendered and admitted as Exhibit ICL 5. The parties are restrained by injunction from distributing or publishing in any way the contents of ICL 5 to any third party. I note that the legal representatives will doubtless advise their clients that distribution of material, such as Exhibit ICL 5, would be a breach of the Court orders of the kind which might result in the most serious penalties a Court can apply being applied, but hopefully that will never arise.
I make a notation that the Court recommends that Ms D and the mother engage in family therapy. As I will come to later, both the mother and Ms D indicated that they might be open to it, but I do not think it appropriate to order this even if there is power. I will note that I think it would be in X’s best interests certainly, and I suspect also, given that they will be spending the next 14 years communicating about X, in the interests of both Ms D and the mother to do that, whether formally or informally, if they can.
I turn now to my reasons.
The Father
The father was born and grew up in C Town with the paternal grandparents, and there is no evidence of trauma or abuse in his history. He is substantially illiterate, and struggles with writing. He said he was diagnosed with ADHD as a child, was prescribed medication, but only took it for a month or so because it did not agree with him, and he completed Year 9 before leaving to take up a traineeship. The father works in a trade and in other similar work. He worked throughout the relationship, and although unemployed at the time he swore his affidavit, he is employed again. He owns his own home, subject to a mortgage.
The father denied any mental health issues, other than his childhood ADHD. Given his case is that he suffers no mental health impairments, his concession in his affidavit that he did, on occasions, threaten suicide during the course of the relationship, is supportive of the mother’s case that he engaged in ongoing emotional manipulation by making those threats.
There was a letter from the father’s usual GP, Dr U dated early 2020, in which he recorded:[1]
I am [Mr Charr's] treating GP.
He has come to see me last month for management of his depression and anxiety disorders.
[Mr Charr] & I have put together a Mental Health Treatment Plan with goals and strategies to improve his mental health. I will be following up with him regularly with our next appointment planned for a fortnight from today.
[1] Exhibit B, MFI 4, p. 561.
Dr U also provided, or had tendered from his records, a letter dated 15 June 2021, which was the day after separation, with a referral to a psychologist for mental health counselling.
There was no evidence before me of there being a psychological impairment likely to impair the father’s parenting capacity, and I note that in those circumstances, I did not accept the mother’s proposal that he undergo a mental health assessment.
The father denied that he drinks excessively, which was one of the allegations raised by the mother. That was despite telling his GP at a visit in early 2020 that he:[2]
Drinks 2-3/weeknights, binge drinks on weekend
(emphasis added)
[2] Exhibit B, MFI 4, p. 553.
He attended his GP a short time later, in 2020 and it is recorded that:[3]
Binge drinks plus drinks regularly 2-3 drinks per night
(emphasis added)
[3] Exhibit B, MFI 4, p. 554.
The father, in oral evidence, said that his usual GP accepted this history of binge-drinking from the mother and recorded it, despite it not being correct. That is despite this history being recorded in the context of the father seeking fatty liver results, with the father’s GP recording in his notes:[4]
Has abnormal LFTs in 2020 and an Ultrasound demonstrating fatty liver
[4] Exhibit B, MFI 4, p. 556.
This evidence in cross-examination from the father denying these histories was not credible. The history was recorded in the context of evidence of fatty liver being investigated, they were recorded by a GP who the father said was his long-term GP, and the similar history has been recorded on more than one occasion.
In the context of the mother’s allegations of family violence, the father, in his oral evidence, denied that he had punched a car in frustration, causing him to fracture his hand in late 2020.
That was despite his giving a history to the hospital that:[5]
[5] Exhibit B, MFI 4, p. 569.
Pt seen in plaster room post XRAY
Hx noted of punching car
XRAY demonstrated # neck of 5th metacarpal.
Requested to place pt in ulna POSI and sling …
(Emphasis added)
I note that Hx is the common medical reference to “history”.
Apart from the fact that the father had a fracture of the neck of the fifth metatarsal, notoriously known as “the boxer’s fracture”, it is common ground that Ms D was there and Ms D said at paragraph [67] of her affidavit that during an argument between the parents about the father’s alleged affair, she broke them up, and that:
… [Mr Charr] did punch his car out of sheer frustration but at no point touched [Ms Dalton], I managed to calm [Mr Charr] down and took him inside and told [Ms Dalton] and [Mr Charr] to sit and talk which they did, the end result was [Ms Dalton] was coming home with me and they would seek counselling.
(Emphasis added)
And even more significantly, the father himself had told the expert, as reported at paragraph [100] of her report, that:
… The father also volunteered that in [late] 2020, he punched his car (or bike) due to frustration with the mother and broke his hand.
Despite all of this, the father maintained under cross that he did not punch the car until taken, in cross‑examination, to the overwhelming contrary documentary evidence above.
He then, momentarily, admitted that he had punched a car in frustration causing the fracture his hand, but then, for reasons which I cannot understand, backtracked and tried to demonstrate how he had been moving his arms in frustration, and his hand had accidentally come into contact with a car, fracturing his hand. He was then pressed again, and finally admitted the obvious fact, that, as Ms D said and as he had told the hospital and had conceded to the expert, he had punched a car in frustration.
This oral evidence from the father was not only surprising given the prior concession to the expert, but indicative of someone who seemed to have no real appreciation of the obligation to give truthful evidence to a Court.
The issue of the alcohol and the fracture to hand were two clear examples of the father choosing to give false evidence under oath. His evidence concerning text messages comparing the mother’s assault at an event with his infidelity, which I will come to, was also unbelievable, given no other explanation for what his text messages meant was proffered and also given their clear terms. His evidence that he did not have access to a weapon, given that the object identified as a weapon by the mother was confirmed by Ms D to be a having spoken to the grandfather in her reply text message, was similarly unbelievable.
In simple terms, I have little faith in the credibility of the father’s evidence. One suspects that the difficulty the father faced with his credibility after his cross-examination was a factor in the forensic decision he later took, discussed more in a moment, ultimately not to press his application, and to instead support Ms D’s application that X live with her, and that Ms D have sole parental responsibility.
The father has two older children: Mr T, aged 24; and Mr V, aged 23. Their mother was Ms W. There was an AVO dated late 2008 protecting Ms W from the father, with allegations being that the father assaulted Ms W by grabbing her around the neck and pushing her towards a fireplace, causing her to fall. Ms W told police this occurred in the presence of their two then young sons. It was also alleged the father kept large knives hanging on the wall of the house, and Ms W told the police she was:[6]
…sick and tired of being attacked by the defendant.
[6] Exhibit B, MFI 4, p. 47.
Mr T and Mr V live in NSW, and the father says he has contact with them, but there was no other evidence of his relationship. The father told the expert that the maternal grandparents of Mr T and Mr V had primary care of them after he separated from Ms W.
The father told the expert he was previously married, in 2014 or 2015, to Ms Y. I note that there was a final ADVO dated late 2015, protecting Ms Y’s then 13-year-old son, Mr Z, from the father.[7] It appears there was an assault alleged, and also that the father was given a section 10 in relation to an alleged assault on Mr Z.
[7] Exhibit B, MFI 4, p. 38–39.
The father says he has not had a partner since separation. I will come to the questions of conflict in the relationship and the allegations of family violence when I deal with the parties’ relationship.
The Mother
The mother had a traumatic childhood, which commenced in New Zealand, before she moved to Australia. Her childhood was, on her unchallenged evidence, characterised by neglect by her mother, multiple instances of abuse by multiple perpetrators, eventual removal into care due to neglect, then engaging in juvenile crime, including some crimes of violence, as set out in her criminal history[8]. Apparently the mother thought her convictions would see her returned to New Zealand.
[8] ICL 12, MFI 4, p. 48–61.
She spent time in juvenile facilities for these offences, and apparently she also spent time in juvenile facilities as a form of care arrangement, as there were no other available placements.
The mother’s unchallenged evidence was that she met her former carer, Mr BB, when she was 14 and he was 27. He abused his position of trust to prey on her from a young age, and introduced her to illicit drugs, which she said he effectively compelled her to take. He abused and assaulted her throughout the relationship.
She had no family or external support. She said that whilst her mother, who she had lived with, did not abuse her but that she was entirely neglectful and took no steps to protect her which contributed to the multiple abuses in her childhood.
The mother married Mr BB when she was 19. They had three children, the first was born when she was 20. These children who I will refer to as “the mother’s older children” are CC, born 2007, now aged 15; DD, born 2010, now aged 12 and a half; and EE, born 2012, now aged 11.
In her trial affidavit at paragraph [144], the mother said:
DCJ was involved briefly to assist the children and leaving the relationship. He forced me to use [a prohibited substance]. I am allergic to [another prohibited substance], so it made me sick. DCJ helped me get into a detox and a rehabilitation facility.
(Emphasis added)
I note that DCJ in this context is the Department of Communities and Justice, New South Wales, and for simplicity, I will refer to DCJ, and their predecessor organisations which had different names at different times, as “DCJ”.
The mother said she is not proud of her history of drug abuse, and also that she last used illicit substances in 2011. She said, at her affidavit paragraph [145], in respect of her positive test for an illicit drug in late 2020, after she was assaulted at an event, that she could not recall taking any such substances. The inference, as I understand it, being that she was slipped the illicit drug. In any event, no party suggested or submitted that the mother presently has an issue with substance abuse.
However, to say that DCJ “was involved briefly to assist the children and leaving the relationship” involves a significant understatement. The DCJ records support the mother’s characterisation of Mr BB as a drug user, drug dealer, and a family violence perpetrator, who preyed on her as a vulnerable adolescent. While the mother cannot, on any view, bear any moral culpability for her actions as a juvenile, and while her conduct as a young adult must be understood in this context, it is clear that not only were the mother and Mr BB both drug addicts, it is equally clear from the DCJ records that they both neglected the older children, leading to involvement from DCJ.
Exhibit ICL 12, DCJs documentation prepared from early 2013, discloses that Mr BB sold illicit drugs and kept a weapon at home, which the children could easily access, both of which assertions the mother agreed with in her oral evidence. It disclosed that Mr BB repeatedly assaulted the mother, which the mother agreed with in her oral evidence. It disclosed that the children were often left alone, and were poorly cared for, which the mother denied in oral evidence despite the contemporaneous documents and the removal of the children.
That exhibit includes a history that the mother disclosed to DCJ that she was using an illicit drug during her last pregnancy.[9] The mother denied that in oral evidence before me. I prefer the contemporaneous evidence of a disclosure from the mother to DCJ, which is consistent with the mother’s then general state and conduct and her entry into drug rehabilitation facilities.
[9] ICL 12, MFI 4, p. 121–129.
Unsurprisingly, it was identified by DCJ that:[10]
Previous reports have identified significant psychological impairment to the children related to the DV in the home –[CC] has attachment and behaviour issues and [DD] presents as hypervigilant.
(Emphasis added)
[10] ICL 12, MFI 4, p. 123.
From 2013, the children have lived with the paternal grandmother, Ms FF, and that was from when CC was five, DD three, and EE one. Although the mother suggested in her oral evidence that she had voluntarily placed the children with Ms FF, there are proceedings 2013 proceedings in which the mother was the applicant, seeking orders concerning the children.
The mother was cross-examined extensively on the historical DCJ documents. Rather than admit the obvious, which was that she was neglectful of her older children in the context of her own significant mal-treatment as a child; her chronic post-traumatic stress disorder, which she had by then; the dysfunctional relationship with Mr BB; and her significant and daily illicit drug use, the mother in her oral evidence sought to deny her involvement in the neglect of the older children. That was despite the overwhelming documentary evidence that this was what was occurring, and despite it being almost inevitable that such neglect would have occurred, given her own evidence that she was using an illicit drug and other similar substances every day.
Where the mother sought, in her affidavit, to deal with her history of drug use and to explain how she has changed, which change I largely accept and which she was not challenged on, her inability or unwillingness to admit the obvious truth of the neglect of her older children did not assist the mother’s credibility as a witness when I come to consider her answers concerning her current care of X, and the case which was run based upon the expert’s opinion that there is an element of neglect and lack of care in the mother’s care, and a deficit in her current capacity to care for X.
I note that after EE’s birth in 2012, it appears the mother went to a number of drug rehabilitation centres in an attempt to cease her drug use, and as part of that rehabilitation she said she underwent psychotherapy for about 12 months. And it seems, based upon what she described, that she was undertaking forms of either behavioural cognitive therapy or possibly the derivative from that, dialectical behavioural therapy. She said it included discussions about domestic violence, but also agreed that perhaps she had not taken as much on board as she could have given that she went into a new relationship, knowing little or nothing about the father, in which she says she was again subject to domestic violence.
Unsurprisingly, given her history as noted above the mother reported to the expert a long history of complex post-traumatic stress disorder. She is currently medicated with an antidepressant medication. She said this treatment has been successful.
The mother told the expert that soon after her surgery her past did not bother her as much, which brings us to the mother’s surgery which occurred in 2016. The mother had experienced headaches and other symptoms, which required surgery. The mother told the expert that she had no personality change as a result of her surgery, but reported some physical issues as a result of the surgery, and that she said she was on the waiting list to see a specialist at WW Hospital.
In her oral evidence, the mother said that post-surgery she had difficulty with walking, talking, vertigo, and recalling names. She was placed in a rehabilitative facility for a period, although she says this was because she was being given too great a dose of the post-surgical medications and that once this was corrected, she was released.
The mother says she does not suffer any long-term negative impacts from her surgery affecting her cognitive capacity or behaviours. That is certainly possible, however, the nature of her injury, including injury post-surgical repair, maybe that a person is not aware of the impact of that injury and surgery on them. The mother, unfortunately, does not have any evidence from a specialist, surgeon, clinical psychologist or similar, or a GP, to independently assist the Court in understanding whether or not this injury and surgery has had any lasting impact on her cognitive capacity or on her behaviours.
As I understand it, the mother’s explanation was she could not afford a private expert report, and I understand that. That is unfortunate, but it leaves the Court in a difficult position, where the child court expert, who is highly qualified but not an expert in the mother’s type of injury, has expressed concerns about this issue.
Unfortunately, for similar reasons, there is also very little useful evidence before the Court about the mother’s current psychological condition or impairment of complex post-traumatic stress disorder, and about the impact this long-term condition may be having on her cognitive or parenting capacity, even though medicated. And again, one of the difficulties with psychological impairments, using the World Health Organisation term “impairment” to describe any alteration of health status, is that the person may not be fully aware of the nature and extent of the impairment, which is a feature of psychological injury or impairment.
I note that at Exhibit 1, there is a very short report of six paragraphs from the mother’s treating psychologist, Mr GG, and that is dated late 2022. He is a psychologist in another state, who the mother attends by phone. She says she has been unable to find a local psychologist who has availability and bulk-bills. And I note that she is far from the only person who this Court sitting in City B has heard recently who has said that. Mr GG has seen the mother 19 times, she says, from early 2021, before the parties separated, to mid-2022. He provided a diagnosis of complex PTSD, which the court child expert did not doubt, given the mother’s history. He said her:[11]“…prognosis is very much dependent on engagement with a consistent therapist.”. Mr GG also recommended:
…a face to face therapist that she could see on a consistent basis to work through her many severe traumas..
[11] Exhibit 1, p. 2.
He then went on to note that he had been supporting her:
…in a somewhat ad hoc way due to her difficulties in making and keeping appointments on a consistent basis.
He noted there was then no current mental healthcare plan, which the mother said was due to issues getting one from her GP, and said that:
I have not seen anything that would give cause for concern re [Ms Dalton’s] parenting or care for [X], howver, I have also not seen her with [X] during our appointments.
(As per the original)
With absolutely no criticism of Mr GG, this report, which is unlikely to have been admitted on such a complex question if sections 76 and 79 of the Evidence Act 1995 (Cth) applied, unfortunately provides little assistance to the Court in terms of understanding what the mother’s diagnosis of complex post-traumatic stress disorder means in terms of her cognitive capacity, her behaviours and her parenting capacity. While it does provide some comfort that Mr GG did not identify anything specific which he felt would cause concern, the mother’s history and diagnosis cannot be compared with a history of mild depression, as I will deal with for both the father and Ms D, and a much fuller report would have substantially assisted the Court, but again, I accept that there are issues of cost.
However, as I will come to later, the expert expressed concerns about the mother’s presentation and some of her behaviours, in the context of having both an injury, surgery and long-term complex post-traumatic stress disorder. The absence of such evidence creates an issue for the Court in terms of the risks that X may face in the mother’s care. Obviously, the Court is concerned with behaviours, not diagnoses, but to the extent to which some of the behaviours that will be discussed may arise from complex post-traumatic stress disorder, or from the sequelae of an injury and surgery, the risk that these will be ongoing issues must be taken into account, and cannot be discounted in the absence of reliable medical evidence to the contrary.
Coming back to 2016. After the surgery the mother, Mr BB, Ms FF, and an ICL entered into consent orders on 20 December 2016, which formalised the arrangement for the older children to live with Ms FF in Sydney, and for Ms FF to have sole parental responsibility.
Mr BB’s time with the children was subject to an extensive regime of drug testing, however the mother’s time with the children for five hours one weekend day, alternate weekends was not.
DD and EE currently spend time with the mother one day each alternate weekend. CC has not spent time with, or communicated with, the mother for about 12 months.
In 2022, the mother commenced proceedings seeking sole parental responsibility, and live with orders, in respect of the older children, and on the basis that they were to spend holiday time with Ms FF. Those orders are, as I understand it, resisted by Ms FF. Those other proceedings remain on foot, and the child impact report in those other proceedings was tendered.
The mother’s case is that she seeks to remain in City B. As I have noted, there was a reference at paragraph [47] in her affidavit of trying to move to Sydney to be closer to her older children. That issue was not pressed at trial.
The mother’s older children spent time with the parties during the relationship, and the question of X maintaining a relationship with these half-siblings is one of many factors for consideration, and it is a factor I took into account when formulating the orders to allow the mother to have the election for which of the alternate weekends X will spend with her, as that may provide some capacity, together with holiday time, for X to maintain relationships with at least DD and EE, even though they affectionately refer to X as being “feral” in the child impact report in their case.
When the parties met online the mother was working in the health sector. She worked throughout the relationship in C Town, and later as a care worker on a casual basis in and about City B, but apparently had issues with her employment due to a conviction arising out of a breach of orders and the conflict between the parties.
The mother says she receives government benefits at the moment, but I note there are questions about where she gets the money she appears to be spending, discussed later. I can make no finding about that, as with so many matters in this case, where it is one of the uncertainties about the mother which raises some concern.
The mother also says she has not had a partner since separation. She was tested on that in respect of a person, Mr O, but she denied that Mr O is her partner, and there was no evidence that they were in a relationship as such.
Ms D
Ms D also lives in C Town, near the father, and again, before I go any further, I should say that C Town is a small town a short distance from City K, and several hours’ drive from City B.
Ms D is a government employee. She lives with her husband, Mr E, who is 57, and their daughter, Ms F, who is 25.
I note that Ms F was present for the relationship, has been abroad, and has now returned, and lives with her parents and works locally. I note, while I am speaking about Ms F, that one of the issues raised with Ms D in cross-examination going to her parenting capacity was that she had had difficulty coming to terms with Ms F’s sexuality. However, as Ms F and Ms D both gave evidence, they have both moved past that, and Ms F has moved home to live with Ms D. I do not think this is a matter I need to mention again and is an issue that Ms D has addressed.
Ms F’s affidavit and oral evidence was limited to her involvement in the dispute between Ms D and the mother at final separation and her willingness to support X if she lives in C Town, which I accept. She seems a straightforward and reasonably reliable witness, although I am not quite sure why she felt the need to constantly look to her mother when giving evidence. I think given that nothing she said was particularly surprising, that may just be that she is reasonably young and quite nervous.
The paternal grandparents, Ms G and Mr H both 74, also lived, and continue to live, in C Town. Ms G’s affidavit and oral evidence was also relatively limited. Interestingly, she expressed no surprise at the fact that I told her I might make some quite adverse findings concerning the father’s honesty and conduct, and in that regard she seemed to be an honest witness who, while supporting him, had a pretty fair and measured assessment of her son. She also said that she will assist in the care of X, as she had done pre-separation. She struck me as another straightforward and reasonably reliable witness.
I am satisfied that both Ms G and Ms F will provide significant support to Ms D and X.
Ms D and the father have a sister, Ms P. Ms P and her husband also live in C Town. Ms P’s husband, as I understand it, is related to Mr E. Unfortunately Ms D and Ms P’s families are now estranged.
In summary, the Charr family have lived in C Town for a very long time. In those circumstances, the mother says she could not live in C Town, as everyone knows everyone’s business. That seems very likely to me.
The mother says that even City K is really too close for comfort, and that is ultimately a matter for the mother. The orders I make about primary residence are not conditioned to where the mother lives, and she is free to live in City B, which she said is her preference.
That must, however, affect the way in which X’s time with the mother is structured, given that I am comfortably satisfied X’s best interests require her to live with Ms D, and Ms D is ensconced in, and said she is going to continue living in, C Town.
In terms of the mother’s concerns with Ms D’s parenting capacity, in her oral evidence, the mother focused on the fact that she says Ms D engaged in family violence against her and against X on the occasion where the mother sought to leave at the end of June 2021, and also the fact that she sees Ms D’s primary position in supporting the father’s application that he have primary care showed a lack of insight into the risks the father poses, involved her supporting a perpetrator of family violence, and so showed a focus on helping her brother rather than a focus on X’s best interests.
In cross-examination, the mother agreed that she had not had contact with Ms D since the late June 2021 incident, and she agreed that they had been friends, with a decent relationship before that. Further, she said it was sad for her and for X that there had been a complete fracture of that relationship. She said that she believed that Ms D loved and was focused on X’s best interests:
….up to the moment when she chose the father over [X].
I will come to this unfortunate incident in more detail later.
When asked why she would not allow Ms D to attend supervised time with the father post‑separation, the mother referred to these events, and these appear to be the mother’s main issue with Ms D’s parenting capacity.
I note that in cross-examination, Ms D was cross-examined about her mental health. There were a number of documents referred to. On 12 July 2017, there was a mental health investigation undertaken in which she had disclosed on a self-report:[12]
…suicidal thinking ‘Several days’
(Emphasis in original)
[12] Exhibit B, MFI 4, p. 417.
The diagnosis range was “moderate”. The expert was asked about this, and said she did not consider it significant.
On 16 August 2021, after the final separation, a report from Dr VV, gave a history that Ms D felt her main problem was:[13]
My family and extended family.
[13] Exhibit B, MFI 4, p. 418.
As the ICL submitted, that is consistent with Ms D’s role as the effective matriarch responsible for the well-being of the extended family. It seems clear that Ms D plays the role of the effective matriarch of the family in C Town, and is the solver of problems.
It was noted that Ms D was having low-intensity CBT, cognitive behavioural therapy, and had problems in recent years since the death of her father. There was reference to the dispute about the will, getting Ms F back from abroad during COVID, and of course, Ms D’s worries about X. Ms D was taking a mild antidepressant, and again, the expert was asked about this and did not find it concerning. Much of the population suffers with mild depression at different times, and there was no evidence that Ms D’s cognitive or parent capacity was affected.
There was a report from a Dr HH of late 2022. Dr HH said they had been Ms D's GP since 2018, and gave a short report which said amongst other things:[14]
I have been involved in [Ms D’s] medical care since [early] 2018. [Ms D] has a history of depression/anxiety and over the past five years her mental health has been stable. Over this period, she has engaged with psychologists at times when she felt increased stressors were causing a recurrence of low mood or anxious symptoms. [Ms D] has also been taking an anti-depressant medication regularly.
I believe that [Ms D] has developed a wide range of healthy coping strategies to enable her to deal with life stressors, and have no concerns over her mental state.
[14] Exhibit B, MFI 4, p. 420.
Again, the expert did not see any difficulty with this information in terms of Ms D’s parenting capacity. I treat this short report from Dr HH differently to Mr GG’s report because it is clear that Ms D had issues with depression due to the kind of travails that we all suffer, such as, disputes about wills, the death of a parent, worries about her child being stuck abroad, and these proceedings with X. That cannot be compared with the extensive trauma the mother has suffered, her complex PTSD, and obviously the overlay of her possible neurological problems from surgery. I say “possible” since I just do not know.
I will note that, unsurprisingly, in cross-examination the mother said that if the court did not consider that X should live with her, that as between the father or Ms D, she felt X would be better off living with Ms D, and I consider that a reasonable position, given the evidence.
The Parties’ Relationship
The parties met online through a dating app in 2017, not long after Mr BB died. The mother was living in Suburb JJ’s in Sydney and working in the KK Region in the health sector. The father was living in his house at LL Street, C Town, which he purchased in about 2001. I will refer to this as the former matrimonial home.
Only a month after meeting online, in early 2018, the mother left her accommodation and job and moved to C Town to live with the father. X was born in 2019.
In cross-examination, the mother conceded that she hardly knew the father when she gave up her job and accommodation and moved from Sydney to the regions to live with him. She denied that this was an “impulsive decision” and describes it instead as a “needs-based decision”. She agreed in cross-examination that given what she says occurred, in hindsight, noting her prior marriage to her abuser, perhaps this quick “needs-based” decision was not the best decision for her to have made, and made in such a short time.
At the conclusion of trial, one of the issues which I will come to is whether the mother continues to make “needs-based” decisions around X’s care, particularly in relation to the people who have unsupervised access to X, and whether this has left X exposed to instability, and potentially to neglect or even abuse from third parties.
In terms of the care for X during the relationship, the father conceded to the expert at paragraphs [98]–[99] that the mother did not leave X in his care overnight, and that X regularly stayed with Ms D when the mother was working at night.
Consistent with her oral evidence, the mother gave a history to the expert at paragraphs [81] that prior to separation, Ms D had been a support, and that X would stay either at Ms D’s or at the paternal grandmother’s while the mother worked night shifts.:
81. The mother reported that prior to parental separation, she and the subject child lived with the paternal aunt and this had occurred in the past as well, with minimal issues. The mother reported that she found the paternal aunt a support until she attempted to leave the local area with the subject child. When asked about who cared for the subject child when she was working [late], the mother reported that she did not leave the subject child in the care of the father as she was concerned that the father would not wake up for the child in the middle of the night if needed, due to his sleep apnoea. The mother reported that the subject child would either stay with the paternal aunt, [Ms D] or the paternal grandmother, whilst the mother was working [late]. The mother was asked if this were true, why the paternal aunt was not allowed to attend supervised time with the subject child and the mother’s response was because the subject child had been exposed to family violence perpetrated by the paternal aunt at the point of leaving the paternal aunt’s home.
The photographs attached were consistent with what was described. And again, this was part of a pattern of apparently careless and neglectful behaviour.
In the same report it stated of X’s bag that:[38]
I have also observed the same thing and arrived at the same opinion of [Ms UU], when I have looked at the contents of the bag. What is packed, seems indiscriminate, there are instances where there may be three jumpers, four t-shirts, five shorts and only one pair of underwear, or where [Ms Dalton] will send her without a bag and simply send a blanket, shoes and drink bottle. On one occasion she has sent medication but otherwise this is not provided either.
[38] ICL 10, MFI 4, p. 361.
Also, the same report states that:[39]
•Staffing: There is an inordinate amount of time which goes into managing [Ms Dalton]. More time seems to be spent chasing [Ms Dalton] in terms of coordinating her departure time for the visit, non-compliance with GPS, payments and so forth, than time spent on the actual visits. Delayed visits often mean we need to change supervisors, due to the finish time being pushed back and other commitments.
(Emphasis in original)
[39] ICL 12, MFI 4, p. 359.
Early 2023
I note what was said under the heading “[X’s] bag” where the writer of the report states:[40]
[40] ICL 10, MFI 4, p. 388.
[X'S] BAG:
•I asked [Ms UU] to document what [Ms Dalton] had packed into [X's] bag and she noted the bag contained: 4 pieces of underwear, 4 socks, a makeup kit, a snap lock bag full of hair clips and scrunchies, a spare pair of shoes which [X] said were too small, 4 pairs of swimmers, a blanket (described by [Ms UU] as filthy), long tights and a jumper, a singlet, an all-in-one shorts-and-top, 5 t-shirts, and 6 pairs of shorts. The contents of the bag were consistent with what I have observed on other visits, noting on one summer visit there had been 4 jumpers packed.
Each of these things individually may seem, and indeed individually may be, relatively small issues, but when amassed and viewed as a whole, each piece of evidence reinforces the others to show a picture identified by the expert’s opinion as demonstrating a lack of general parenting capacity.
Documentary evidence of opinion
It is important to note that documentary evidence of opinion must be treated with some caution. However, concerns about the mother’s care and parenting capacity of X come not just from one source, but from both the childcare centre and the supervision centre, and appear to come from multiple reporters within each centre.
Lateness
The mother appears to have a significant issue with timeliness. She was 75 minutes late for her 9.00 am appointment with the expert, which she explained in her affidavit at paragraphs [156]–[158] by reference to a car accident.
As set out at Exhibit ICL8, the mother completely failed to attend an appointment with the ICL arranged for 19 December 2022.
The mother was consistently late to supervised visits for drop-offs and pick-ups as set out in supervision reports, which caused the supervisors considerable difficulty. See, for example, MFI 4 page 358, the report of 5 November 2022. It was noted that the mother:[41]
… consistently arriving late for visits is negatively impacting [X], in terms of her becoming tired and irritable during the visit and impacting on the quality of time with [Mr H].
[41] ICL 10, MFI 4, p. 358.
In the report of 19 November 2022, MFI 4 page 327, it was said that:[42]
As previously raised, [Ms Dalton] has a pattern of running late and not adhering to the app requirements. Of the previous seven visits, [Ms Dalton] has been late for five. For visit six, [Ms Dalton] was 90 minutes late and for visit seven [Ms Dalton] was 75 minutes late.
It was also recorded that:[43]
[Ms Dalton] has made comments to supervisors that they have arrived back late from Sydney at 3am and [City NN] at similar hours, which is destabilising for young children.
[42] ICL 10, MFI 4, p. 327.
[43] ICL 10, MFI 4, p. 358.
The mother denied saying this, or that she would return at 3.00 am in the morning from visits to Sydney with X, but there is no evident reason for the supervisors to have made this up and the mother would travel with X to Sydney to see the older children.
I note the mother was, as she accepted in cross-examination, consistently late for Court, particularly on the days she was giving evidence, delaying the start of the days proceedings.
In cross-examination about these various incidents, the mother had a variety of reasons for why she was late, and of course, we are all going to be held up by traffic accidents and unforeseen circumstances from time to time. That is an inevitable part of life. But as the expert said in relation to the mother’s overall parenting, it is the pattern of behaviour that is relevant. It is this consistent inability to plan, coordinate and execute her timely attendance, and attendance with X, at important events that is a feature which seems to create, to some extent, what the expert called a “chaotic” existence for X.
And again, this is the matter about which both the expert and the ICL were concerned, and about which I am concerned. By itself, this is only one factor, as each of these factors are. But if X cannot be at day-care visits, or more importantly in due course at school, on time, then that is going to have a significant impact on X’s ability to live a stable life and, in the near future, on her education. Children who are repeatedly late to school, even though they are attending, can very quickly fall behind and find it difficult to catch up again.
This is one of the reasons why I have decided, both in respect of the mother and for the father, that their overnight time should only be Friday and Saturday and during school holidays and should not extend through to Monday or other school mornings.
Housing and stability
I note that the M Centre employees thought the mother was living out of her car. The mother denied that and said she was moving to live with [Ms N]. The mother’s evidence about her care for X did involve, as the ICL submitted, a lot of ducking and weaving. She says she has inquired for about 300 rental properties in the last few months at paragraph [150]–[154] of her affidavit:
150. Following separation, I resided with the paternal family for a short period of time until [X] and I fled […] to get away from the father and we resided at [temporary accommodation] in the [City B] area.
151. However, approximately 5 weeks ago, I commenced proceedings in the NSW Civil and Administrative Tribunal because of the condition of the home seeking compensation.
152. We have since left that property and we are residing [Ms N] in [City B]. I have enquired with about 300 rental properties in the last few months to secure further accommodation however I have not yet had any luck. I will continue to make all the necessary enquiries to obtain further accommodation, however, my experience is that the rental market is not easy.
153. [X] and [PP] share a bedroom. They have bunk beds which I purchased.
154. Despite this I have reached out to [OO Organisation] to provide [X] and I with further housing and I am currently working with her to secure independent accommodation.
(Emphasis added)
She said she had found a cabin as a low-cost form of rental, which might be available in her budget, and she is trying to get assistance from the earlier accommodation to assist her. The rental market is unfortunately notoriously tight at the moment, but particularly for people of limited means.
In any event, there is a risk that the mother is suffering housing stability and I have concerns about her evidence of her housing.
Employment and income instability
The mother’s finances are opaque. I accept that her conviction may have interfered with her work, where she requires checks to work. I note that the mother has been found guilty, but not yet sentenced, in respect of a breach of an AVO. It is unfortunate. It may have impacted on her capacity for work. She says she plans to appeal the conviction, but also to seek a section 12 on the basis of mental health grounds.
However, there were real issues around where she obtained $1607.40 to pay PP’s L Centre debt in late 2022. That was raised with her, but no satisfactory answer was given. M Centre raised the issue in their report of 31 December 2022 where the mother had outstanding amounts, but would then pay amounts of $600 to $700 dollars on an ad hoc basis within a few hours of being asked. The mother’s explanations for access to these sums of cash when she is meant to be living solely on government benefits was less than persuasive. Again, I do not know what the truth is, but I am satisfied I do not know what the truth is because the mother has chosen not to tell me. And that again creates concerns for me.
CLOSING SUBMISSIONS
The ICL commenced the closing submissions. In respect of the mother, the ICL emphasised that there was no blame sought to be attributed to the mother, in particular noting her background and what she has had to endure since childhood, resulting in her complex PTSD diagnosis, and also noting her injury and surgery.
However, the ICL submitted that no matter how deeply the mother’s situation might tug at the Court’s heartstrings, as it does, the Court’s obligation is to focus on X and what is in X’s best interests.
The ICL submitted that the father, the mother, and Ms N all engaged in a lot of ducking for cover during questioning, unlike Ms D, who was largely a straightforward witness who admitted when she had made mistakes at the height of the parenting conflict.
The ICL’s submission was that the most compelling witness was the expert, who, it was submitted, took a measured and child-focused approach to the formulation of her opinion. The ICL submitted that the documentary evidence made out the expert’s concerns and that weight would be given to the expert’s qualifications in psychology.
The ICL’s submission was that the proper consideration of X’s best interest is significantly affected by the fact it is not a weighing between the mother and the father, both of whom have serious deficits in parenting capacity, but between the mother and Ms D. The father’s decision, without admission, not to press his application either for parental responsibility or for a primary live-with order, and his acceptance of relatively limited time with X subject to conditions around not drinking and about undertaking appropriate courses, effectively rendered much of the evidence in the case of less probative value.
To the extent the Court has concerns about the father, it was submitted that the relatively limited time that was proposed, the restrictions proposed, and the fact that as he lives in C Town in circumstances where Ms D, Mr E, Ms F, Ms G and Mr H will all effectively, to use the ICL’s words, “have eyes on [X]” even when she is with the father, mean the Court would be satisfied that X is safe in the father’s care, and able to maintain a meaningful relationship with the father on alternate weekends and for up to four days at a time during holidays.
In respect of Ms D, the only issue raised by the mother in her evidence was Ms D’s intervention when the mother sought to leave, and I have dealt with that. The ICL submitted, and I accept, that I would accept the expert’s view that Ms D’s mild depression is not an issue affecting her parenting capacity.
Because of the way in which the proposals were ultimately made, the ICL did not place any weight on the father’s allegations of family violence against the mother, and nor was there any submission that the mother would intentionally abuse or would intentionally allow others to abuse or neglect X.
The essence of the ICL’s submission, consistent with the expert’s opinion, was that the mother, though well-intentioned and doing her best, and having done an amazing job to come from where she was in her relationship with Mr BB to now, was nevertheless living a life with X which was: disorganised; with a major difficulty being on time; with apparently insecure employment and housing, although the Court would not be sure about what was occurring; with irregular bedtime for X; with unexplained injuries to X; with ongoing conflict with paid carers; with multiple paid carers, at multiple independent agencies, expressing concern about X’s care; and significantly, exercising parenting judgment that places X in the care of Ms N and Mr O, who are people about whom the mother, when she made that decision and even at trial, knew very little.
The ICL’s submission was that, taken all together, the Court would accept the expert’s opinion that the mother’s capacity to provide a safe and stable environment for X was limited, and that even if the evidence did not establish, as I think it cannot, that there has been actual neglect or abuse, it must establish that there is a risk that there has been and will be neglect and abuse, and I find that that is the case.
In effect, the ICL submitted that the Court would accept the opinion of the expert in both her Family Report and her oral evidence that the mother’s parenting capacity is inadequate to meet X’s needs, whereas Ms D’s parenting capacity is not in question, and that X’s best interests therefore require orders as proposed by the ICL. I note I substantially accept those submissions.
Ms D’s and the father’s submissions added little to the ICL’s submissions.
The mother’s submissions were relatively confined. She went through the evidence and I have dealt with the evidence earlier.
The mother’s submission was that in ordering X to live with Ms D, the Court would not be acting in X’s best interests, given that Ms D said she wanted the father to have the opportunity to be a parent to X despite the evidence of the father’s parenting deficits and family violence, and it was submitted that the fact that Ms D maintained that primary position, that the father would have primary care, brought into question her parenting competence. Questions about Ms D’s mental health were also raised.
The mother, in closing, submitted that the Court would adopt the informal test from child welfare proceedings and that the Court would not remove X from her lifelong primary carer if the mother “is good enough”. I do not need to consider the “good enough” submission, as that is not the test. The relevant legal test is as determine by the Act.
FINDINGS
The pathway I have to follow is that set out in the Act. I am not comparing the mother’s proposal with a foster replacement, but rather the mother’s proposal with the ICL’s proposal, supported by Ms D and the father.
The evidence concerning the mother’s attitude to leaving X with adults she does not know much about; the fact that she did not act on disclosures concerning Ms N; the fact that it appears Ms N is a significant carer, when I am not satisfied it is established she is a safe and competent person to care for X; X’s disclosures about Ms N and similar concerns about Mr O; the issue of general carelessness in food preparation and clothing to take to day-care and supervised visits; the issue of an apparent problem with time management and with getting X to bed at a reasonable hour; the mother’s prior history of neurological issues and her current diagnosis of complex post-traumatic stress disorder, in respect of which there is little reliable evidence, other than the expert’s concern; and significantly, the expert’s opinion that taking all these factors together paint a picture of a lack of judgment concerning who cares for X, and a lack of capacity to provide a safe and stable environment for X, cause me to find that if X lives primarily with the mother she is at risk of general neglect, and of possible abuse by third parties due to the mother’s lax attitude to X’s safety with third parties.
I do not make any finding of neglect or abuse by the mother or of any third party. But the many small pieces of evidence, when viewed together, paint a compelling picture of risk that I must act upon, particularly where there is no such risk on the proposal made by the ICL in regards to Ms D.
As I have said about Ms D, apart from the poor set of decisions in around mid-2021, which I accept were motivated by frustration at both the mother and the father and a desire to protect X, Ms D presents a safe and steady pair of hands who can, I am satisfied, provide X with a stable, orderly and safe environment in which to grow. I am also satisfied that Ms D will support the mother’s relationship with X, or X’s relationship with the mother, and that she will ensure that X is not exposed to an unacceptable risk when spending time with the father.
BEST INTERESTS OF THE CHILD
The paramount consideration is X’s best interests, see sections 60CA and 65AA, taking into consideration the factors set out in section 60CC. The two primary considerations in order of weight are, firstly, the need to protect X from physical or psychological harm, from being subjected to abuse, neglect or family violence, and the benefit to X of having a meaningful relationship with both parents. Although the reference is to “parents”, in proceedings under the Act the mother as a parent does not by that reason alone have any presumption in her favour which puts her in a superior position to Ms D as a non-parent party promptly joined to the proceedings. I will consider these matters in respect of both parents and Ms D.
The evidence establishes that there is a real risk that X will be neglected by the mother if living full-time with the mother. That is in terms of care and supervision provided, and also the risks that X may be abused by people the mother does not really know, but has to rely upon to support her in raising X.
Again, as the ICL said, it is difficult not to feel deep sympathy for the mother. She has no support from her family of origin, was a victim from the age of 14 to her caseworker then husband, had her three older children removed, has complex PTSD as a result, has had surgery, and lacks other known people’s support to assist her to live and raise X. While the use of an informal network through Ms N may be the best she can do, the evidence shows that it has possibly exposed X to neglect and possibly to the risk of abuse by unknown third parties.
The mother’s chronic lateness and disorganised approach, which is evident in the contents of the bags she sends with X as identified by M Centre, give rise to real concerns about the mother’s capacity to provide a stable environment to X, which X needs to allow her to flourish, to get X attend school on time when the time comes, and to properly prepare for and take part in other social activities. These risks do not exist in Ms D’s primary care. Consistent with the expert’s opinion, if the mother’s time with X is more limited, as ordered by me, the risks will be sufficiently managed.
The orders I propose will, in my view, allow X sufficient and sufficiently regular time to maintain a meaningful relationship with both parents, which I find is in X’s best interests, particularly if the mother lives in or about City K.
The time with the mother is not as much as might be hoped for if the mother lives in City B, but many children manage to maintain meaningful relationships with both parents in such arrangements when geographic distances and travel times across Australia mean that more regular time is not feasible. Regular audio-visual communication will also assist with this.
There are a range of additional considerations, but they are largely covered in the findings I have given and made. In terms of the additional considerations pursuant to the subsections under s 60CC(3):
(a)X is too young for her view to be given weight when assessing risk.
(b)I accept that X has a good and meaningful relationship with each parent, and is likely to have a sufficient relationship with Ms D, Mr E, Ms F and the paternal grandparents. X has a good relationship with EE and DD according to the child impact report in the mother’s other case, and hopefully this can be maintained, but X’s protection from neglect is of more importance and is the primary issue.
(c)and (ca); this is not a significant factor. Each of the parties participated until final separation, as did Ms D, after which they have participated as feasible in the context of the interim orders. The mother has fulfilled her parenting obligation to maintain the child to the best of her ability. The father and Ms D did when they could.
(d)The child has lived with the mother her entire life, except for a few days when the father withheld her. While X appears to have a good attachment to the father, and was probably previously well attached to Ms D, there has only been limited and supervised time with the paternal family for an extended period of time. The impact on X of a primary change of residence is likely, in my view, to be significant. The impact will be even greater if the living arrangements and distances involved between City B and C Town make it difficult for X to spend time with the mother each alternate weekend and on the alternate Thursday. I accept that there are significant risks to X’s emotional and psychological health and wellbeing in this proposal of the ICL and in the orders I make; however, the expert considered that, on balance, the benefits of the stability and quality of care associated with a change of primary residence outweigh those risks, taking a long-term view, and also taking into account the prior good relationship between X and the father and Ms D. That view is supported by the ICL and I accept the expert’s opinion that X will cope with the change. X has a relationship with the mother’s older children, which it would be good to maintain. That relationship is presently limited by the fact that CC does not see the mother, and that DD and EE only see the mother on alternate weekends. There is some scope for this relationship to continue, particularly during the school holidays, and I note that I have sought to facilitate the mother having the alternate weekend’s line up if possible. The relationship with EE and DD cannot be given the same weight as must be given to the primary question of providing X with a safe and stable environment, and protecting her from the risk of neglect and the consequent risk of abuse by third party carers.
(e)If the mother lives in City K, then there will be limited practical difficulty and expense. If the mother lives in City B, then the travel time between City B and C Town presents a difficulty, which I have had to take into account in formulating my orders for school term time, and I note the additional school holiday time in Term 2, if that occurs, to try and ameliorate this.
(f)For the reasons I have given, I accept the expert’s opinion that the mother has a limited parenting capacity. The father’s acceptance of the ICLs proposal implicitly accepts, and I proceed upon the basis that, the father also has a limited parenting capacity. I am satisfied that Ms D has, as the expert assessed, an unimpaired parenting capacity.
(g)This is covered previously and there are no additional factors addressing or involving maturity, sex, lifestyle and background that I think are relevant.
(h)X is not an Indigenous child.
(i)The mother has a deficit in her capacities as identified. Ms D does not. The father has shown minimal responsibility.
(j)and (k), and also noting section 60CG: the issue of family violence has been discussed at some length. I had this in mind in formulating orders, particularly relating to the father’s time with X, and also concerning changeovers and the making of audio-visual calls in communication, to seek to minimise the extent to which the mother and father must interact.
(l)I consider the orders I make the most stable and the least likely to lead to the institution of further proceedings.
(m)The relevant material has been discussed and there are no other circumstances I think are relevant.
PARENTAL RESPONSIBILITY
The presumption that there should be equal parental responsibility has been rebutted in relation to the father given my findings, to the extent I have made them, concerning family violence and in any event he consents.
In relation to the mother, she and all other parties submitted that it would not be feasible for there to be equal shared parental responsibility. The expert held the same view. All parties submitted that the party with primary residence should hold sole parental responsibility given the breakdown in the relationship between the mother and Ms D.
Unfortunately, the mother and Ms D cannot share parental responsibility. In these circumstances, I agree with the position adopted by all parties, including the ICL at trial, that the person with whom X primarily lives must have sole parental responsibility, and for that reason, since I think the live-with order must be with Ms D, Ms D therefore will have sole parental responsibility.
I note that I have considered, as part of my general analysis of the time X should spend with her mother in particular, the factors which would arise under section 65DAA, and I have tried to maximise the time X spends with the mother to the extent I consider it in X’s best interests, taking into account the risks I have identified with the mother’s parenting capacity and, depending on where she lives, the practical issues. I have done my best to meet the appropriate balance.
As I have said, I have great sympathy for the mother’s position, but ultimately, the legal obligation I have is to X and X’s best interests, and at the end of the trial I was more than comfortably satisfied that the orders I have made that X should live with Ms D, and that Ms D should exercise sole parental responsibility, are in X’s best interests.
The other orders for time and related matters meet the balance which, in my view, best advance X’s best interests.
Those are my reasons for decision.
ICL’S COSTS
The ICL has now made an oral costs application as she is required to make.
The ICLs costs are $27,865 including the trial.
There has been no contribution by any party. The mother is legally aided and cannot pay. The father was legally aided for the trial only. The father, with the assistance of the paternal grandparents, have spent over $80,000. Ms D has taken on the care of X.
I note the principles are that the public purse should not generally bear the cost of the need to have an independent children’s lawyer, which was required in this case and that is an important principle to enforce.
However, given the unusual nature of the case and the need to find, in effect, an alternate person to care for X, this is a rare matter where I am satisfied it is not appropriate to make any order in respect to the ICLs costs.
There will be no order in respect of the ICLs costs.
I certify that the preceding four hundred and one (401) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 20 April 2023