Chatterjee and Nair

FAMILY COURT OF AUSTRALIA

CHATTERJEE & NAIR

[2012] FamCA 1014

FAMILY LAW – CHILDREN – Whether the parties should have equal shared parental responsibility for the child or the mother should have sole parental responsibility – Where there is evidence of no communication between the parties - Whether the father should spend any time with the child – Where the father has not spent any time with the child for a period of over two years – Where there is evidence the child has had a good relationship with his father in the past – Whether the father should have telephone communication or the right to send the child letters and gifts in the event he is not to spend time with the child - Where there are allegations of family violence – Where there are allegations of alcohol abuse by the father – Where the father’s conviction for indecent assault against a female minor was quashed on appeal and the bearing of that matter in relation to any risk the father may pose to the child – Whether the parties should undertake parenting courses

Family Law Act 1975 (Cth)

Briginshaw v Briginshaw (1938) 60 CLR 336
G & C [2006] FamCA 994
Mazorski & Albright [2007] FamCA 520
Penfold v Penfold (1980) 144 CLR 311

APPLICANT:

Mr Chatterjee

RESPONDENT:

Ms Nair

INDEPENDENT CHILDREN’S LAWYER:

Ms Court

FILE NUMBER:

PAC

363

2009

DATE DELIVERED:

6 December 2012

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Collier J

HEARING DATE:

25, 26 & 27 June, 10 August 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Self-represented Litigant

COUNSEL FOR THE RESPONDENT:

Mr Maddox

SOLICITOR FOR THE RESPONDENT:

Mr Low

Low Doherty & Stratford

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Greenaway

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Court

John Spence & Associates

Orders

That I discharge all existing Orders in relation to the child B born … July 2004.
That the child shall live with the mother.
That the mother shall have sole parental responsibility for the child.
That the father shall have no time with the child.
That the father shall be permitted to send gifts, cards and letters to the child. The mother shall ensure that the child receives those items.
That the mother shall forward to the father within seven (7) days of receipt copies of all school reports in relation to the child.
That the mother shall provide to the father a photograph of the child taken each year on his birthday, by 30 July in that year, and at Christmas, by the 31 December in that year, at her expense.
That the mother shall notify the father of any medical emergency involving the child requiring treatment or hospitalisation within twenty-four (24) hours of such emergency arising.
That the parties each advise the other of current residential addresses and in the event of any change to their respective residential addresses shall notify the other party within seven (7) days of such change taking place.
That in the event the mother wishes to travel overseas with the child, she shall give the father at least twenty-eight (28) days notice in writing of her intention to do so and provide the father with an itinerary specifying the date of departure, the date of return and whereabouts while overseas.
That each of the parties pay to the Legal Aid Commission of NSW for the costs of the Independent Children’s Lawyer the sum of $4,500.
That such payment is to be made by each of the parties within twelve (12) months of this date.
That all outstanding applications and cross-applications be and are hereby dismissed.
That all issues be removed from the Active Pending Cases List.
That all material produced on subpoena be returned not before fifty-six (56) days from the date of this Order.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chatterjee & Nair has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: PAC 363 of 2009

Mr Chatterjee

Applicant Father

And

Ms Nair

Respondent Mother

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

This matter involves the parenting arrangements of an eight and a half year old boy.
There is no dispute that the child should remain living with his mother. The main issues in dispute before the Court are in essence two-fold:-
a)Whether it be equal shared parental responsibility as sought by the father, or whether it be sole parental responsibility as sought by the mother; and
b) Whether the child should spend any time with his father.
A further, but lesser, issue in the proceedings was whether the mother ought be allowed to take the child overseas without the father’s permission.
The father initially sought his time with the child recommence on a graduated basis. At the conclusion of the evidence, however, he sought his time with the child recommence on an alternate weekend basis. The mother was firmly opposed to any time between father and son. She raised allegations of family violence and alcohol abuse, which the father denied.
A significant factor in this matter was the father’s conviction and subsequent dismissal on appeal of charges of indecent assault against a minor female driving student of his. There was no significant argument advanced by the mother that the father was to be found to have committed an offence to the lesser or civil standard of proof. However, the real significance of the criminal proceedings against the father were that, as a result of him being criminally charged, his time with the subject child and a daughter of the mother’s was suspended. As I understand the evidence, the father spent no time leading up to the commencement of this hearing with his son and pressed to have such time reinstated. In fact, it appeared the father had spent no time with the child for a period of over two years (as at the time of hearing).

The father’s application

At the commencement of the hearing, the father appeared to seek orders as set out in his affidavit affirmed 20 June 2012. In this regard, he sought his time with his son be recommenced on a gradual and progressive basis.
At the conclusion of the evidence, the father produced a minute of orders he then sought. That minute appeared to have been drafted with some precision and with some legal assistance. It was, in summary, in the following terms:-
a)That the parties have equal shared parental responsibility for the child.
b)That the child spend time with the father each alternate weekend from 10.00 am Saturday until 6.00 pm Sunday, at times on special days and at times during religious festivities.
c)That the mother not leave the child in the care of any other party.
d)That each party have reasonable telephone contact with the child when in the other parties’ care.
e)That changeover be at McDonalds Suburb C at the commencement of the father’s time and at Woolworths Suburb D at the conclusion of his time.
f)That when the mother is unable to deliver the child to school or collect the child from school, the father collect the child from the mother’s residence and deliver him to school or collect the child from school and deliver him to the mother’s residence.
g)That the parties keep the other notified of any medical matters relating to the child, school matters and any other matters relevant to the child’s welfare.
h)That the parties keep each other advised of their current contact details (including address and telephone number) and advise of any change within seven days of a change occurring.
i)That each party be entitled to directly obtain from the child’s school any reports, newsletters, photographs and information about school functions and events.
j)That the child be restrained from leaving the Commonwealth of Australia or the State of New South Wales without the father’s consent.
k)That the father be permitted to take the child interstate and overseas.
l)That the father not pay any of the mother’s costs.

The mother’s response

At the commencement of the hearing, the mother sought orders as set out in her Further Amended Response filed 1 June 2012. That document was in the following terms:-
a)That the father’s application be dismissed.
b)That the mother have sole parental responsibility for the subject child.
c)That the child live with the mother.
d)That the mother be solely entitled to sign any necessary documents to obtain a passport, visa or any other travel documents on behalf of the child.
e)That the father pay the mother’s costs in the sum of $2,310 on an indemnity basis, within 28 days of these orders.
She sought no order for the subject child to spend any time with his father.
At the time of submission, the mother largely adopted the orders as proposed by the Independent Children’s Lawyer.

The position of the Independent Children’s Lawyer

At the commencement of submissions, counsel for the Independent Children’s Lawyer handed to me a proposed minute of the orders sought. That minute was in the following terms:-
1.        That all prior Orders be discharged.
2.        That the child live with the mother.
3.        That the mother have sole parental responsibility for the child.
4.That the mother provide such authorities as may be required by the child’s school to enable the father to receive copies of the child’s school reports and such other information as may relate to the child’s progress.
5.That the mother inform the father of any medical emergency involving the child.
6. That the father be permitted to forward to the child cards and gifts, and the mother will provide the cards and gifts to the child.
7.That the parties attend within seven days to enrol in “Keeping Contact Program” conducted by Centre E.
8.That the parties participate in the program and follow any reasonable recommendations of the program co-ordinator in relation to any further courses or programs that may be deemed appropriate.
9.That neither party denigrate the other in the hearing or presence of the child nor allow third parties to denigrate the other party in the presence or hearing of the child.
At the conclusion of submissions, the Independent Children’s Lawyer sought their costs be paid equally by the parties. It was indicated that the costs as assessed totalled $13,783; therefore an amount of $6,891.50 was sought as against each party.

Material relied upon by each party

At the commencement of the hearing, the father prepared a list of documents he sought to rely upon. Those documents were:-
a) Application in a Case filed 2 December 2008;
b)Affidavit of himself affirmed 18 November 2008 and filed 18 November 2008;
c)Amended Application filed 23 March 2009;
d)Further affidavit of himself affirmed 16 March 2009 and filed 23 March 2009;
e)Response to an Application in a Case filed 16 September 2009;
f)Further affidavit of himself affirmed 2 September 2009 and filed 16 September 2009;
g)Further affidavit of himself affirmed 1 June 2012 and filed 1 June 2012;
h)Affidavit of his brother, Mr F, affirmed 1 June 2012 and filed 1 June 2012; and
i)Further affidavit of himself affirmed 20 June 2012 and filed 20 June 2012.
As noted above, the father produced a minute of orders at the conclusion of the evidence that he then sought.
In support of her case, the mother relied upon the following documents:-
a)An affidavit of herself affirmed 31 May 2012 and filed 25June 2012;
b)An affidavit of her aunt, Ms G, affirmed 8 June 2012 and filed 18 June 2012;
c)An affidavit of Mr H affirmed 5 June 2012 and filed 18 June 2012;
d)An affidavit of her partner, Mr I, affirmed 22 June 2012 and filed 25 June 2012;
e)A parenting questionnaire prepared as part of the Less Adversarial Trial filed 18 February 2010; and
f)The Judgment of Armitage J dated 18 August 2010, which later became an exhibit in these proceedings.
The Independent Children’s Lawyer relied upon the reports of Family Consultant Lily O, being a Child and Parents Issues Assessment report dated 30 April 2009 and a Specific Issues Report dated 26 February 2010.

Brief background

There appeared to be little argument as to the factual background to the matter, which I set out hereunder.
The father was born in 1961 in Country M and as at the time of final hearing, he was 51 years of age.
The mother was born in 1976, also in Country M, and as at the time of final hearing, she was 36 years of age.
The mother moved to Australia in about September 1997.
Both parties were previously married – the father in 1993 and the mother in 1996. They each have a child with their former spouse:-
a)The mother’s daughter, J, was born in April 2002. She was 10 years of age at the time of the hearing. She lives with her mother and her half-sibling, the subject child.
b)The father’s daughter, Ms K, was born in August 1987. She was 25, turning 26, at the time of the hearing and was living in Country L with her maternal grandparents. It appears from the evidence before me is that the father has not played a significant role in his daughter’s life, but is in contact with her and is to spend time with her in the near future.
Each of their respective spouses had died prior to the commencement of the parties’ relationship.
The parties met in Country M in about August 2003 and then commenced cohabitation in September 2003 in Country M. The mother then returned to Australia in December 2003.
The parties’ only child, whom is the subject of these proceedings, B, was born in July 2004 in Australia. He was seven years of age at the commencement of the hearing and turned eight years of age before the second and final stanza of hearing.
The parties married in Country M in January 2005. The mother returned to Australia mid February 2005 with the child whilst the father remained in Country M pending approval of his visa. The father arrived in Australia on a Temporary Residency Visa in August 2005.
On 21 August 2008, an incident took place between the parties, which was the subject of much disputed evidence. It involved what the mother says was a container of inflammable liquid.
The parties then separated in about May 2008. The date of separation also was in dispute – the mother saying it was on the 16^th of the month, and the father saying it was on the 25^th of the month.
In about June 2008, the mother obtained an interim Apprehended Violence Order for her protection against the father. No final Apprehended Violence order issued; the mother’s application was dismissed at the final hearing of the matter.
The father then initiated proceedings in the Suburb N Local Court in December 2008 in relation to parenting matters, and his application was transferred to this Court shortly after.
As noted above, the father was charged with indecently assaulting one of his female driving students in June 2009. He was convicted of the offence in a Local Court in February 2010, and then his conviction was quashed on appeal by a District Court in August 2010.
Between July and August 2009, the subject child and the mother’s daughter were taken to spend time with the father at a contact centre on three or four occasions. It appears the subject child did spend time with the father but the mother’s daughter did not.
The parties were divorced on 25 September 2009.
On 2 November 2009, Judicial Registrar Johnston delivered an ex tempore Judgment and made interim Orders suspending the father’s time with the mother’s daughter. The subject child thereafter continued contact time with his father each alternate Saturday at the contact centre.
On 19 March 2010, I suspended the father’s time with both the mother’s daughter and the subject child pending further order and stood the matter over generally to await the conclusion of the father’s criminal proceedings. The father has not seen the subject child since this date.
The father has been self-represented in these proceedings since late October 2010.
When the matter was before Registrar Bartlett on 23 September 2011, the father withdrew his application to spend time with the mother’s daughter and Registrar ordered an Independent Children’s Lawyer be appointed to represent the subject child.
On 29 November 2011, I made an order for the parties to attend for intake sessions at a contact centre. The father says he telephone the centre but was advised there were no available dates for contact until May 2012.
In May 2012, the mother was put on a mental health plan, which included the mother to undertake more counselling.
As at the time of the hearing, the mother was working on a rotational roster, which included some weekend shifts. The father was self-employed. The subject child was in Year 3 at primary school.

The Father’s Case

As noted above, at the commencement of the final hearing, the father appeared to seek orders as set out in paragraph 3 of his updated affidavit affirmed 20 June 2012. However, he then produced a minute of final orders sought at the conclusion of the evidence. It was his case that the parties should have equal shared parental responsibility for their son, that the child should continue living with his mother and that he should spend each alternate weekend with the child. (At that stage of the hearing, he no longer sought a gradual progression of his time with the child, recommencing with supervised contact centre time and progressing eventually to overnight alternate weekend time.) He sought telephone contact with the child and that the mother not leave the child in any other person’s care.
The father asserted that he is capable of caring for his son. He further asserted that he believed that there would be no difficulty in re-establishing a relationship with his son.
The father agreed to an order proposed by the Independent Children’s Lawyer that he attend a parenting course run by Centre E.

The Mother’s Case

At the time of submissions, the mother largely adopted the minute of orders proposed by the Independent Children’s Lawyer (as set out earlier in these reasons for Judgment). Counsel for the mother submitted that the orders as sought by the Independent Children’s Lawyer were not dissimilar to those sought in the mother’s Response.
The mother asserted that the father had been violent during the course of their relationship. She asserted that he consumed alcohol to excess. It was her case that there was no benefit to the child spending time with his father.
The mother gave evidence that she was also willing to participate in a Keeping Contact or similar program, and to do things as recommended by the Independent Children’s Lawyer in this regard.

The Independent Children’s Lawyer’s Case

At the conclusion of the evidence, the Independent Children’s Lawyer made submissions that the father should spend no time with the child and that the child should live with his mother. It was their position that the mother should have sole parental responsibility for the child. However, the Independent Children’s Lawyer did posit that there should be an ability for the father to receive copies of the child’s school reports, and be notified of emergencies involving the child. The father should be permitted to forward to the child cards and gifts and the mother should provide those to the child. Further, it was the Independent Children’s Lawyer’s position that both parties should enrol in a Keeping Contact program.

The evidence before me

I heard evidence in this matter from the following witnesses:- the father and his brother in the father’s case; and the mother, her aunt and her present partner in the mother’s case. The Independent Children’s Lawyer placed Ms O before the Court.

I turn then to the evidence of each of those witnesses.

The father

The father said that he lived with his brother. He said he had copies of his affidavits. He confirmed that he last saw his son at a contact centre and that his time with the child was stopped following my Order. He said his work times were flexible, that he worked for himself and had no involvement with his brother in relation to their respective businesses.
He said he had never met the mother’s partner, but he objected to him caring for the child. He said he did not know the man and he (the father) could care for the child. He objected to anyone other than the mother caring for the child. He said when she needed assistance because of her work, he should be the person to care for his son. He said it is approximately half an hour travel between the two homes. He said he would pick the child up from school and return him to the mother.
As to the charge of indecent assault, he said that he had never seen the young lady in question prior to the incident and does not know why she “made up” the allegation. He was charged in June 2009 and knew it was serious. He did not realise, however, that there was a connection between a charge of that kind and him spending time with the children (that is to say his son and the mother’s daughter of a previous relationship). He had sworn an affidavit on 16 September 2009 and made no mention of being charged. He does not know why that was not mentioned and says he was not trying to conceal the issue.
In his affidavit affirmed 20 June 2012, he sets out that he was convicted and sentenced in February 2010. He said that he had not disclosed the conviction. He was seeking unsupervised time with the mother’s daughter.
He spoke of a car accident in 2010 in which he sustained shoulder and back injuries and from which he still has difficulties. He said at the time of the accident he was driving his brother’s car. He said his brother supports him financially.
He said he earns money from his driving instructor business, but not much. He pays child support based on his income. He said he charges between $27 and $40 per hour and is paid in cash. He has a day book. His lessons are one to two hours. He said he had returns up to 2011 at his home and he would produce them the following day of the hearing.
He said he agreed to his daughter of a previous relationship going to Country L.
He said he and his brother both own their own driving schools. He registered his own driving school in 2011. Before that, he was doing business under his brother’s name, but they were never partners. Taken to paragraph 55 of his affidavit affirmed 16 March 2009, he says that that was wrong; he and his brother were never (business) partners.
He said he and his brother live in a unit in a block of seven or eight units. He would put his son in his room and move into his brother’s room. He and his brother would sleep in the same bed.
He said that his brother owns the car that he drives. There was talk of a motor vehicle being transferred to the wife, which he asserted was an error by an accountant.
He said that in the last week he had conducted 15 lessons of one to two hours in duration at the above rates. However, he claimed that that week was better than average. He was questioned at some length about his income earning capacity and he agreed that he knew the child support he was to pay was based on the amount disclosed as his taxable income.
He agreed with paragraph 46 of the wife’s trial affidavit that he had returned to Country M about four times per year. He said his brother had paid for him to travel to Country M to see his family.
Paragraph 49 of the wife’s affidavit relating to her allegations of his alcohol consumption were put to him. He said he did not drink and had not done so since 2010. He said he had stopped after he had been to Country M. In relation to particular allegations contained within subparagraphs of her trial affidavit, he asserted that the wife was lying.
He went on to say that he knew how to look after children very well, and that he can look after female children.
He said he would do any course that was recommended (as to parenting courses).
Asked about a pre-sentence report obtained in 2010, he agreed reference was made to medical symptoms. He had not sought medical advice and said that those symptoms had arisen since he was charged with the offence.
Asked about speaking to police about immigration, he denied this, but later agreed that he had done so.
He was asked about driving through a stop sign and he said he was being chased and did not know that it was the police chasing him.
He said he does not communicate with the mother. He knew important decisions had to be made. He said the parties can discuss and reach agreement, and can communicate in the future. He said that he was not to blame for the poor relationship between him and the mother. He agreed that the choice of high school may present difficulties. He did not agree that it was best that the mother make that decision. He said he wanted to be involved in such decisions. He said he had no idea how any dispute between he and the mother would be resolved.
He said that he eventually wants the child spending time with him every second weekend and he will take the child to soccer. He agreed with the child attending Hindi lessons and said he would take him to those lessons.
He said he knew that the mother alleged he had been violent, but that he had never heard her say that. He said that if the mother became upset, that would cause him concern.
To counsel for the Independent Children’s Lawyer, he confirmed that he was living with his brother. No friends came to those premises. He has another brother in Australia. He said both brothers help him financially. He said the brother with whom he lives is also a driving instructor and that brother had paid for him to travel to Country M. In 2012, he agreed that he had been to Country M twice. The tickets were purchased by his brother to whom he had given $400 in total.
He said that in Country M his family were well off.
He said that a trip to Country S had been paid for by a friend. He agreed that in 2011 he went to Country M and again his brother paid his airfare. He gave the brother $200 for that trip.
In 2010, he was in Country M for three to four months. Again, his brother had paid.
The father said he was a permanent resident and had been since 2008, and that he had applied for citizenship approximately two months before giving evidence. He had a letter from the Department of Immigration & Citizenship at about the end of May and that letter was at home.
He said that he had a daughter in Country L to whom he had last spoken approximately a month before. He had never travelled to see her but she was coming to see him soon.
He said he had last seen his son in March 2010. He had not sent cards or letters. He knew where the mother and son lived. He was aware there was a waiting time at the contact centre. He said that his son would know him as his father and that he (the child) would enjoy his life with him (the father). He said that he pays child support of $30 per month to the mother. He had never asked his brother for help in this regard. He knew the mother was supporting the child. He said he did not know by law that he could give her more money.
He said the child likes to spend time with him. It was put to him, and he accepted that for this to happen, he would need a relationship with the mother. He was unable to answer how he could heal the relationship with the mother, other than by providing more money and gifts for his son.
He was questioned about a car accident in which he says he was a passenger.
He said the mother’s aunt lived in Suburb P and came to their home occasionally.
He said that he did not work between August 2005 and April 2006, and he thereafter worked as a driving instructor. He said he would work every day if asked.
He said that when he and the mother were away from the home at the same time, the children would have been in day care.
Again, he denied that he was currently drinking. He said that the mother would never have seen him drunk.
It was put to him that his brother had told the probation officer preparing a pre-sentence report that he had noticed an increase in the father’s alcohol use. It was further put to him, and he agreed, that he had told the probation officer that he drank at home two or three times per week. He again asserted that he stopped drinking at the end of 2010 when he returned to Australia. He then said he had stopped drinking on 1 January 2011 when he had made a promise. He said he had never had an alcohol problem. It was put to him that his use of alcohol was out of control and he said yes, but not whilst he was with the mother.
He said there was an argument when the mother’s aunt was present and he was asked about the container episode. At first, he said he did not remember. Later, he said that he did remember the incident. He said that he came up from the garage with a container, which he asserted was coolant. It was put to the father that he wanted to scare the mother and he said he did not. It was put to him that he knew the significance of the container as a means of setting someone on fire.
He said that he had gone to sleep and did not know the police had been called. He was worried that if the police took action then he would never become an Australian citizen.
He denied that he had said that if the police came he would hang himself. He then said that he spoke to police. He said that he had gone to Country M without telling the mother. He was not worried about the police. However, he said he was scared that the mother would say that he had hurt her. He said he purchased his ticket the same day as he travelled. He had spoken to the mother whilst in Country M. He said there was a threat made that if he returned to the home, Immigration would deport him.
He said that he would accept the mother’s aunt as a supervisor. It was put to him that he had previously presented his case on the basis that no one other than the mother and he should care for the child and he agreed that that had been, and continued to be, his position.
In further cross-examination by leave, the mother’s counsel asked about amounts of money sent overseas. He said that the last time he had sent money was in 2008 or 2009, perhaps $2,000 to $3,000. He denied it could have been more. He said the money came from his modest income, and the biggest single amount would have been $900.
He agreed that he had sent money for a friend to his brother in Country M. He was shown a number of documents which disclosed monies sent - in February 2006 an amount of $4,000, in March 2006 an amount of $7,365, in August 2006 an amount of $2,990 and in September 2006 an amount of $3,940. The documents establish that in May 2007 a further amount of $1,000 had been forwarded. A total amount of $19,295 had been sent. He said that the last amount of $1,000 was paid to someone’s friend, but all other amounts had been paid to his brother. He gave an explanation that it was a better rate if he sent money from Suburb C, an area where he works. That is an explanation that I do not accept.
This concluded the father’s evidence. The next witness called was the father’s brother.

The father’s brother

He agreed he was a driving instructor. He said that he had spoken to his brother (the father) during the morning tea adjournment and yesterday after Court, despite the father still being under cross-examination at that time.
He said that he had asked his brother to send money to Country M for him; he could not remember precise occasions or the amounts involved. He did not know about the father sending money for other people. He said he knew about the father sending his own money back. He too asserted that the exchange rate at Suburb C was better.
He said he had last seen his brother drinking around 2011; it could have been 2010. He did not speak to him (the father) about his alcohol consumption. He said that he got the airline tickets because of someone working at Qantas. He said the last time he had travelled to Country M together with the father was in April 2012. He said the father had given him $200. He said that he is the only person on the lease of the premises in which he and the father live. He said that his de facto had never lived in the premises, but a friend of his has. He said that he has agreed to his nephew (the subject child) staying there, but there had been no discussion about sleeping arrangements.
He said that he and his brother worked under the same driving school, but never in partnership. He said that he had helped the father buy two motor vehicles and in fact had paid for them. He said that it was up to the father to see the child. He had not seen his nephew for years.
To counsel for the Independent Children’s Lawyer he said that he and his brother pay the monthly rent of $1,120 on an alternate monthly basis, and that the rent increased only last month from $1,000 to $1,120.
He said that he told the truth when he spoke to the probation officer that he had noticed a recent increase in his brother’s alcohol consumption at that time. Before the increase, he said the father was drinking beer and whisky, and he drank almost every day. He had then started to drink a little more. He then said that he had started to drink only when charged with indecent assault in around 2009 and had not drunk before that. He then said that before 2003 the father drank in Country M. He said the father had not been drinking since he had come back from Country M at the end of 2010/beginning of 2011. He asserted that his brother had been drinking before that time because of the outstanding criminal case.
He said as a result of the car accident in which his brother was instructing in his vehicle, he was paid for damage to that vehicle.
He said that he has five brothers in total.
He said that he had a friend who had given him money, which he had then given to the father to send overseas.
This concluded the father’s case, and the mother was then called.

The mother

The mother said that she had stopped taking her antidepressant medication unilaterally. She said this was subsequently approved by her doctor.
She said that during the relationship the father drank whisky and sometimes rum. She said that she drinks alcohol now. She did not think she drank when she was with the father. She thought that she had not told police of the father’s drinking.
She said she thought the father had petrol in a container that he brought into the home. She did not show the container to the police and did not check its contents. She put it inside a washing machine. She does not remember how or when it was removed from the washing machine.
She said that the father told her that if she spoke to police he would hang himself. When the police came she told them nothing had happened. She said she told her aunt not to say anything.
She said that they spoke about the father always being in Country M and not giving her any help. She said the father went through her handbag to retrieve a letter from the Department of Immigration & Citizenship in respect of the father’s immigration status.
She said that she had gone to the Suburb C police in relation to an Apprehended Violence Order. She said that she no longer felt threatened by the father. He did, however, threaten her, she said, that if she did not sign an application, he would have her shot.
She said she had informed Centrelink that they were separated. She said that she had removed a dual control and still had it. It was put to her that she acted out of spite in relation to this and she did not deny this.
She said she telephoned the father on 4 August 2008 and asked her jewellery to be returned. Nothing was said about the children.
Asked if she thought the child might want to see his father, she said “no”. She said he (the father) could not spend time with the child because he posed a threat. Her concern was that he would take the children away. She agreed he started proceedings to see the children (that is the subject child and her daughter) and initially wanted week about time. It was the mother’s view that this should not occur. In her initial Response she agreed she had sought the father see the children for two hours per month at Suburb C Contact Centre and then two such sessions per month supervised by her aunt. She did not think it was a good idea to speak to him on the telephone at that time. She said she had never sent school reports to the father. She said the children prepare gifts for her birthday but never for the father’s birthday.
She denied, in relation to paragraph 66 of her affidavit, that she had encouraged her daughter to go to the contact centre to see the father. She said she told her daughter that she had to go as there was a Court Order. She said her daughter was upset in transit, which caused the subject child to be upset. However, she took the subject child inside the contact centre and asked him not to cry. She denies saying “it will be nice to see your father”.
She said that staff told her that the subject child was enjoying time with his father. She said she asked staff what the father did with the child.
She said she had told her daughter to refer to the father as “that man” and not as “Dad”. She said the subject child never refers to his father and never refers to him as his father.
She asserted the child was only alive because she refused to have an abortion when the father had wanted her to. As to paragraph 101 of her affidavit, she said that Dr Q had been her doctor since 2005. She said that she told the doctor that the father was applying for custody of the children and he would take the children from her and kill them.
On 15 May 2010, she spoke to the doctor about experiencing disturbed sleep. The father, she believed, was going to gaol and doctor increased her dosage. She said that on 16 March 2010 she went to the doctor for anxiety and depression about the children and her workplace. She had a small problem at work. On the 26^th of March the doctor told her she was better.
On 24 August 2010, she dropped forms for her son’s passport at the contact centre, which the father signed and posted back to her.
On 25 March 2011, the mother felt stressed as the father was going to Court in relation to custody (of the child). She said that she had stopped medication by then, having taken it for six months. She said that on 8 June 2011 she reported to her doctor that she had been with a partner for six months and she said that by January 2011 she was in a permanent relationship.
She said she has been to the doctor since November 2011 despite the doctor’s subpoenaed records concluding November 2011.
In May 2012, doctor recommended a psychologist and a mental health plan. She said she experiences flare ups of her anxiety and depression when the matter returns to Court. She relies upon her present partner for assistance. Her partner and the father have not met.
Asked if in order for there to be time between the father and the parties’ son whether it should start supervised, the mother’s position was that there should be no time at all with the father. She agreed that she had originally mentioned supervised time, but now said there should be no time at all.
She reported that the child was doing well in all aspects and never mentions his father.
She said that the charge brought against the father of indecent assault affected her decision as to whether or not her daughter should spend any time with the father.
She had not sought or obtained any advice as to the effect on a child of not seeing his father, but she would be prepared to speak with an expert about this.

She said that she had thought about what would happen if the Court made the orders that the father sought. She said that in 2009 there had been supervised time, the first three occasions with both children, and after that, the parties’ son only. She said she works a 28 day roster which involves working on some weekends.
She said there is no reason to change the current arrangements; the child is doing well. She was concerned at the father’s denials in relation to her allegations as to violence and consumption of alcohol.
Asked about a portion of the report that indicated the father and child had exchanged hugs, she said that she did not see this happen. She said she was upset. She said the time supervised started in July 2009 and her son continued being taken by her or her aunt to contact. She had been told that the child was happy to see his father.
Questioned about Ms O’s second report, she said she did not accept that the child liked seeing his father. She thought it was possible that her son did not mention it so as to not upset her.
Asked about her request for her daughter to be reinterviewed, as referred to by the report writer, she said that she had asked for clarification and denied that she had ever told her daughter what to say. She did say that she wanted the child spoken to on the occasion she returned. The child had said “the lady is lying”. She said the child may have been embarrassed, however, she did not think the child would give an answer so as just to please her.
She said that to refer to the father as “that man” is not an insult. She had not spoken to her son about what he should call his father.
She said she does not require or need to do parenting courses.
She said that the father had told her to have an abortion and that she had not done so; she needed a brother for her daughter.
The next witness called was the mother’s aunt.

The mother’s aunt

Ms G said she now lived in Canberra, having moved in March 2012, and was a pensioner. She had not stayed with her niece since moving, but had visited her.
She said she (the aunt) never drank alcohol. She had seen the mother consume alcohol but had never seen her “drunk”. She said the father drank often; she did not see the bottle but described the liquid as “tea coloured” and he drank from a glass. He drank wine; they (the parties) had drunk wine together at the table. She thought this was in about 2007. She said she had seen “drunk” people in the street.
She said in April 2008 there was an incident in the parties’ home involving a container, and that she had telephoned police. She said she had seen the father and mother running up the stairs. He was first, with the mother behind. She did not see either holding anything. They were arguing and she heard angry voices.
She said she followed them upstairs thinking something had happened. She saw the father holding a green container, which she took off him. She rang the police. She said that she had never made an enquiry as to what was in the container.
Police asked if any call had been made from the home. It was half an hour before the police actually arrived and by that stage, the parties had calmed down; the mother came downstairs and the father remained upstairs.
She knew that in 2009 Orders had been made for the father to see both children at the contact centre. She had taken the children three or four times. She said the mother’s daughter was very upset and after the third time, would not go to the centre. When the subject child had come out, he was normal and happy. She said that the boy was quite happy to go with his father and appeared normal at the end of each period of time.
She said the child now never spoke about his father. She said when speaking of the father, they have always referred to him as “Daddy”.
That concluded the evidence of this witness.
The Family Consultant, Ms O, was then called.

The Family Consultant

Ms O had prepared two reports in these proceedings. The first was a Children and Parents Issues Assessment report prepared on 30 April 2009. During that assessment, she had observed the father with both the subject child and the mother’s daughter. Ms O had then prepared a limited issues Family Report on 26 February 2010, dealing only with the views of the mother’s daughter and the nature of her relationship with the father. The subject child was present at the interviews for that second report with the mother and his half-sister. The father was interviewed briefly over the telephone.
At the time of the hearing, Ms O was aware that the father now sought time with his son and not the mother’s daughter. He was in fact seeking, at that point in the hearing, that he have periods of supervised time and then unsupervised time with his son, progressing on a graduated basis to Saturday night each alternate weekend and at specific times during holiday periods. He wanted to be able to take the child overseas. He wanted an order that the mother not leave the child in the care of any other person.
She was aware the mother sought sole parental responsibility for the subject child and no time between father and son.
She confirmed that the child had told her that his mother instructed him to refer to his father as “that man”. She said that the mother was concerned about family violence and the father’s alcohol intake. She said that she wondered if it would be of benefit of the child to spend overnight time with the father.
She said, in her second report, the mother had told her that she was terrified.
Ms O said she informed the mother that the Court would decide what was to occur and if it was decided that the father should spend time with the children, after a period of no time, more would be needed than supervision. It would be necessary for a course to be undertaken such as Keeping Contact.
Asked if there was a reasonable relationship between the parties, she said “no”. She said communication between the parties was poor; the mother has strong feelings against the father. The Court, she said, should be concerned at the relationship that exists between the parents. She said if the child were disappointed again (by this I took to mean if the child were brought to see the father and this did not take place) this would cause the child distress. If an order for supervised time were to be made, she said something else would be required.
She said it was unlikely that the parties would cooperate in therapeutic counselling.
She said the mother came back to her following Ms O’s interview of the mother’s daughter. The mother insisted that Ms O reinterview her daughter. The mother made it clear that she wanted the child reinterviewed and give the child the opportunity to retract part of the statement she had made earlier.
She said the mother has endeavoured to “snuff out” the father’s relationship with his son, and if it were tried and failed (to reinstitute their relationship) then the child would be affected. She said what is required is a change in the mother’s attitude.
She agreed that one option was that the child spend no time with the father.
She said the child has to live with a residential parent. If there were to be a two-way pull that could damage the child, but if the child was prevented from seeing a parent, there would be no direct causal link to difficulties in adolescent but greater problems than if the child had a relationship with both parents.
She agreed that the child is young, and again said that unless there is a change of attitude by the mother, it would be very hard for the child to have a relationship with his father.
If it were decided there was to be no time between father and son she was asked should there be recognition time and Ms O said this would be a way of keeping a link. She said this would need to be managed by someone who knew what they were doing and there must be no pressure.
She agreed that there should be cards and letters sent to the child. She agreed that the parents often find this hard. However, she said that some link would be of assistance and children want to know their origins.
She said that if I made no order for time, it may still be worthwhile to make an order for the parents to attend courses. She said that if a person’s mind was shut, however, there would be no benefit in attending such courses; but she could see no harm in a parent doing so. She said Keeping Contact works with parents in some therapeutic context. She said that if time were ordered on a supervised basis, both parents should do the Keeping Contact program before time started.
To counsel for the mother, she agreed that she had not read recent affidavits or subpoenaed material. She said the subject child was three years and 10 months old at the time of separation, and the mother’s daughter was six years old. She agreed that the last time of contact between the child and the father had occurred in March 2010. She agreed that interim Orders made in September 2009 suspended the father’s time with the child. She agreed the mother had alleged violence. She asserted the child’s memory would be hazy and he would have no clear recollection. She said the older child may recall more. The younger child, she agreed, was more disposed to seeing the father.
Asked if there were elements of danger introducing the father back into the child’s life, she said that was difficult to answer. There could be problems in adolescence if the child spent no time with the father. She said there is a risk involved. She said without seeing the father the child is progressing well and it appears he will continue to do well. Seeing the father could cause damage. She said that he may idealise his father if he does not see him, or alternatively, he may demonise his father. With the mother’s attitude as it is, she said demonisation is most likely.
Again, she said there should be counselling before any time with the father commenced. Step one, she said, was to decide whether there is to be time, and if no time, there was no imperative to attend counselling. If time were to be considered and ordered, there would be such an imperative. She agreed it is possible the child is one who goes to people easily. She said that recognition time would need be carefully handled and there could be no questions by the father.
That concluded Ms O’s evidence as well as the evidence on that occasion.
When the matter resumed, the mother obtained leave to call her partner, Mr I. He was thus the last witness called and the final witness in the mother’s case.

The mother’s partner

Mr I said he lived with the mother and her two children in Suburb C. He said he had moved into her home in late 2010 and he has regarded it as his home since then. Before moving in permanently, he said he had spent from time to time at the mother’s home “when required”. He said it was a few nights per week. He had moved out of his Suburb R home in about October 2010 at the time he was made redundant from his job.
When asked what he meant by the phrase “as required”, he said the mother was not always able to take the children to and from school because of her work. He said he took on that chore as was necessary. He took this on from about early 2010 when he was still working.
He said he was retired, having been made redundant in about October 2010.
He said he has been involved in the care of the subject child and the mother’s daughter, particularly when the mother worked. He supervised the children by himself and that the mother did not use any other person to supervise the children other than him.
He said the mother worked four to five days per week; that she worked during the day and some nights. He did not know what days she worked but said it was on the same days most of the time. He thought she worked Monday, Tuesday and Wednesday during the day and a couple of night shifts. He said she did a fair bit of weekend work and she mostly worked both days on the weekend.
Asked whether she worked both days last weekend, he thought so but could not say determinatively.
He said he had never heard the child refer to his father. He said he recalled the child wishing to change his surname to the mother’s surname and explained that as an indirect reference to the father. He had never heard the child speak directly about his father. He could not recall if the child had mentioned his father on the way to a contact session, but he may have. He said he could not recall having a conversation with the child about the father.
He said the mother never referred to the father and that they never had conversations about the father. He said he could only recall the mother having referred to the father as “that idiot”. He said any such conversation would have occurred inside the home but not when the children were nearby. He said he had never thought about asking the mother to use an alternative expression to refer to the father other than “that idiot”.
When asked if he would participate in a parenting course as proposed by the Independent Children’s Lawyer, he said nothing would prevent him from attending. He said he would participate in such a course.
He understood he was a significant figure in the child’s life.
That concluded the entirety of the evidence before me.

What do I make of the Parties and Their Witnesses

The father I found difficult to understand. There were clearly existing language difficulties, with English clearly a second language for the father. There were occasions where it seemed that the father did not understand the question put to him because he did not understand the words employed. However, there were other occasions when I formed the view that, notwithstanding the language being used, he chose not to answer the question as put to him. At times he answered in a totally non-responsive way. Overall, I found the father’s evidence less than helpful. I found it difficult to accept him in areas of his evidence.
The father asserted that he wanted his son to live with him at the commencement of the proceedings, but later his position was that he sought time with his son whilst conceding that the child should remain living with the mother.
I found the father’s evidence on matters financial unconvincing. I am satisfied that he was deliberately untruthful as to the amounts of money he sent overseas and the purposes for which those monies were dispatched. Whilst financial issues were not central to this case, I am satisfied that the father was involved in moving money overseas. I am not, however, able to ascertain the purpose for which this was done. I am troubled as to the source of the monies, and I do not necessarily accept the evidence that these were monies not belonging to the father, but to other members of his family, being transmitted at the request of those other family members.
One significant financial matter is the income that the father has disclosed, and upon which his liability for child support is determined. I am satisfied that the father has sought to minimise his income so as to limit any amount assessed to be payable based on his taxable income. I am satisfied that the father was generally untruthful in relation to this aspect of his evidence, and that in turn, this causes me to have grave concerns as to whether or not I can accept other portions of his evidence.
The father’s evidence is that he has certainly not consumed alcohol for a considerable period of time. It is his evidence that he has never been violent towards the mother. I am satisfied that the father has had in the past, and continues to have a difficulty with the consumption of alcohol. I am further concerned that he continues to use alcohol to this day. I am satisfied that the father has deliberately understated the quantity of alcohol he consumes and the effect that alcohol consumption has upon him. I am satisfied that certainly during the marriage the father drank significant quantities of alcohol and was incapacitated as a result.
I am also satisfied that during the marriage that the father was at times violent towards the mother. I am satisfied that the father has deliberately chosen to deny allegations of assault (knowing those denials to be false) or he has, on occasions, been so affected by alcohol that he has been unaware of his actions.
A good deal of cross-examination of the parties and the mother’s aunt was directed towards an episode where the father was alleged to have brought a container into the home, allegedly containing petrol, with what the mother alleges was the intention of using it to harm her. I am satisfied on the evidence that I have heard that there was a container brought into the home. I will return to this aspect in dealing with the evidence of the mother and her aunt.
I am satisfied that the father made threats of self-harm if the police were contacted and came to the home.
During the course of the matter, there was much said about the father’s conviction for indecent assault. That conviction was recorded at Suburb C Local Court on 24 February 2010. Subsequently on 18 August 2010 on appeal to the District Court the appeal was upheld and the conviction and Orders in the Court below were set aside.
It was never put to me, nor was the father cross-examined in respect of these matters so as to ask me to make a finding on the civil standard, having regard to the test imposed in Briginshaw v Briginshaw[1], that for the purpose of these proceedings I was satisfied that the offences had occurred. Certainly, the mother’s counsel sought to make much of comments of the learned District Court Judge dealing with the appeal. I decline to permit this. The end result is that it was not put to the father that he had indeed committed the offence alleged against him.
[1] (1938) 60 CLR 336
However, it is clear that, as a result of this Court becoming aware of the charges against the father, previous Orders allowing him time with the parties’ child and the mother’s daughter were suspended. For some reason, that I do not understand, following the success of the father’s appeal to the District Court, there was no real effort made for him to reinstitute time with his son.
I am aware that in saying this that the father was not legally represented during the hearing. He has not been represented since 2010. However, it appears that he has received some legal assistance in the preparation of his trial documents.
It is also to be recognised that the father’s use of cross-examination in the proceedings was very limited. He asked some limited questions of the mother and Mr I. He asked no questions of Ms O. Whilst acknowledging that he was unrepresented in the hearing before me, I found this course of action hard to understand and accept.
I find that the father’s brother gave evidence designed to assist the father. Notwithstanding that, I found his evidence about the father’s consumption of alcohol contradicted the evidence of the father in this regard.
The mother I found to be a person who was given to some exaggeration as to the father’s behaviour. I am satisfied that whilst there was a basis for her description as to the quantity of alcohol drunk by the father, and the frequency of his drinking, that these matters were, however, whilst factually based, somewhat coloured.
I am not able to believe her evidence that the father had a container of petrol in the home that he intended to pour on her, or in her vicinity, and thereafter ignite. I do accept that there was an argument on that occasion and that the father had a container in his hand. Accepting as I do the mother’s aunt’s evidence, I am not satisfied that I can impute to the father any intention to harm the mother.
I do accept the evidence of the mother, and to a lesser extent her aunt, that the father made threats that if the police became involved he would harm himself. I am satisfied he did this in an effort to persuade the mother not to contact police.

I am satisfied from the totality of the mother’s evidence that she believes that there is no need for the father to participate in their son’s life. I am satisfied that she clearly has for herself no time for the father. I am also satisfied that she has no wish or desire that her daughter should see, have any contact or communication with the father.
I found the mother’s aunt a more truthful witness than either of the parties. I accept her evidence concerning the container episode. I am satisfied that she saw arguments between the parties and I am satisfied that she saw the father consume alcoholic liquor.
Mr I did not add greatly to the evidence. I am satisfied that he had been involved with the mother for some little time. I accept that he has endeavoured to assist the mother and has certainly had the care of both of the mother’s children whilst she has been absent at work. I am satisfied on the evidence Mr I gave that he is prepared to be more actively involved if this is required of him.
Ms O was cross-examined at length about her two reports. I found her to be endeavouring to present as accurate and balanced a picture of the situation as she could. I observed no suggestion of bias in her evidence and I accept her evidence as a proper expression of expert opinion.

The Law to be Applied & Discussion

I turn then to the sections of the Family Law Act 1975 (Cth) that I am required to take into account.
The first of those sections relevantly is section 60CC(2). The section is in these terms:-
(2)      The primary considerations are:
(a)      the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)      the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Thus, what is required is a balancing exercise between these two primary considerations.
“Meaningful” has no definition within the Act itself. However, a number of decisions have sought to examine and deal with this matter. Brown J in Mazorski & Albright[2] concluded that the phrase did not involve or connote quantitative concepts. Her Honour was satisfied that “a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive (sic) one.”[3] I am satisfied, having regard to the matters discussed by Bennett J in G & C[4], that what is required is an evaluation of the extent to which a relationship is going to be of advantage to a child.
[2] [2007] FamCA 520
[3] Ibid at paragraph 26.
[4] [2006] FamCA 994
Thus, I am satisfied that it is a qualitative, rather than a quantitative, concept that I must examine.
I turn then to the matters set out in subsection 60CC(3) of the Act, the first of these being the views of the child and the reasons underlying those views (subparagraph (a)).
I can take from Ms O’s first report, which is now of some antiquity, that the child at the time of the preparation of that report had expressed some pleasure in seeing his father. However, on that occasion that the child was seen with his father he was considerably younger than he is now. A further report was required from Ms O, but that report dealt only with the views of the mother’s daughter in respect of her spending time with the father. That child is no longer the subject of the father’s application.
I am therefore unable to conclude whether the subject child has expressed any view. I am satisfied that when observed by Ms O he appeared happy to see his father. Further, it is the evidence of the maternal aunt that he acted quite normally after sessions of supervised time with his father at the contact centre. When the aunt spoke of “normally”, I take her to mean appropriately in her view of the child’s behaviour.
However, having regard to the child’s age, I am not satisfied that his views or, indeed, in this case, his reactions are such that can be in any way determinative of the issue to be determined.
The next consideration is the nature of the relationship of the child with each parent and other persons (subparagraph (b)). It is clear that the mother has been the person with whom the child has always lived. I am satisfied that the child loves the mother and the mother in turn loves him. I am satisfied that the mother is protective of her son, at times to an excessive or unnecessary degree.
I am satisfied that the father has some regard for the child’s welfare. The father clearly expresses that he wishes to have an ongoing relationship with his son. He has modified his application and I now understand that he concedes the child should live with the mother and spend time with him. That position now adopted by the father seems to be somewhat more realistic than the position he previously took (for the child to live with him).
However, I am unable to make any concluded finding on the nature of the relationship of the child with his father at the present moment. It is clear he has not seen his son since March 2010. I am not able to make any finding as to what effect that absence from his son’s life has had upon the boy. I am of the view that the mother has done nothing to assist, foster or encourage the relationship during that time and one can only assume that the relationship between father and son will not have improved during that period of the absence of each from the other’s life.
Subparagraph (c) relates to the extent to which each parent has sought to be involved and has involved the other parent in the child’s life. The mother clearly has done all in her power to restrict the father’s time with the child. She says this has been necessary because of the father’s past behaviour and is for the benefit of the child. I am not satisfied that the mother has acted solely out of a perceived need to protect her son. I am satisfied that because of the mother’s dislike of the father, she is prepared to say and do whatever she perceives or considers may be necessary to exclude him so far as possible from the child’s life.
So far as the father is concerned, as I have already said, I have found it difficult to understand why having succeeded in his appeal to the District Court no positive steps or actions were taken to reinstate his time, at least with his son. Again, however, I acknowledge that the father was unrepresented in these proceedings from 2010 onwards.
The next subparagraph deals with the likely effect of any change in the child’s situation (subparagraph (d)). The positions of the parties are in contrast. The father asserts that the child should spend time with him and that he should be part of the child’s life. The mother asserts the father should spend no time with the child.
The present position is that the child is not seeing his father at all. I have dealt with the reasons why this is so earlier in this Judgment.
The father’s application would, if successful, significantly alter the current living situation of the child. For the child to be reintroduced into the father’s life, and that is what would be required, would be a change that this child would not necessarily adapt to easily. Certainly, there would need be a significant change on the mother’s part - a change in her general attitude to her son and the father - that would enable the child to spend time away from her. I am not satisfied at this time that the mother is either willing or able to participate in putting any such change in place. Therefore, I am of the view that reintroducing the father into the child’s life would be something that would be to create a situation which would not necessarily be beneficial to the child.
The next subparagraph is the practical difficulty and expense of the child spending time with each parent (subparagraph (e)). I am not satisfied that this presents a difficulty in this case. However, whilst acknowledging that the practical difficulty and expense might be accommodated by orders, I am of the view that any changeover of the child from one parent to the other would be a situation fraught with difficulty. If the father were successful, I am satisfied that at every changeover there would be a very high probability that difficulties would arise between these parents in the child’s presence that would of course not be for the benefit or wellbeing of their son.
I turn then to the capacity of each of the child’s parents and other persons to provide for the needs of the child, including emotional and intellectual needs (subparagraph (f)). The mother has clearly been the child’s sole carer for the great majority of his life. Even when the parties were together, I am satisfied that the bulk of care for the child fell upon the mother. I am satisfied that she has housed, fed and clothed the child. I am satisfied that she will ensure the child attends school on a regular and proper basis. I am satisfied that she has a proven record of care for her son.
The father’s position as a carer is unknown and untested. He gives evidence that he lives with his brother and gives evidence that if his child were to spend time with him, he would be accommodated within the unit occupied by the father and his brother, the child’s uncle. The father tells me, as I understand his evidence, that he would give his son his bed in those circumstances.
On the evidence I have heard and the impression I have formed of the father, I am in no way satisfied that the father has a capacity to deal with the child’s activities such as his schooling and extracurricular activities in which he may wish or choose to become involved. I am satisfied that the father’s capacity has to be examined in the light of what I have found to be his risk of alcohol abuse.
I am then required to consider the maturity, sex and lifestyle of the child (subparagraph (g)). In this regard, nothing of any cultural nature, other than his attendance at Hindi classes, or any cultural issue has been raised before me. All the indications that I have before me is that the subject child is a child of normal maturity and development for his age.
I turn then to subparagraph (i), the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents. I am satisfied that the mother loves the subject child and is aware of at least some of the responsibilities imposed upon her as the child’s parent. I am not, however, convinced that the mother sees any need or purpose for the child to have his father in his life. I am satisfied that the mother sees no benefit to her son knowing both of his parents and having them both involved in his life.
I am satisfied, indeed, that the mother is anxious to exclude the father from the child’s future life. I am, however, of the view that this is not only because she believes that is what is best for her son, but also so as to prove that she is right in the forensic contest between the parents.
Having said that, I am satisfied that from the father’s point of view, he is even more concerned to emerge victorious from the Court proceedings, and be proven right in that which he asserts to be the case.
Whilst again making every possible allowance for the father being unrepresented in the hearing before me, I remain concerned that he played a very limited part in the proceedings, especially in respect of his cross-examination of witnesses, particularly Ms O.
Apart from the very carefully prepared documents the father presented to the Court, I was of the view that he had no real overview of what it was that he either wanted or intended should happen. Having said that, I accept that he wishes to have some part in his son’s life. However, I do not believe it is that wish that motivated him to take and maintain proceedings in this matter.
So far as the issue of family violence is concerned (subparagraph (j)), I am satisfied that there has been family violence in the past in this family. I am not able to be as precise as one might wish and particularise that which has occurred, but I am satisfied that the father, whilst drinking, has been prone to perpetrate violence upon the mother. I am not, however, satisfied that that violence is to the extent as alleged by the mother. I am, indeed, satisfied that the father’s consumption of alcohol, which I am satisfied continues to this day, affects his capacity to care for any child that might be committed to his care.
As to whether or not there is an order that would leave to the minimisation of future proceedings (subparagraph (l)), I am unable to say whether either of the orders sought by the parties would achieve that desirable result.
I turn then to section 60CC(4) to examine the extent to which each parent has fulfilled or failed to fulfil their responsibilities as a parent. I believe that I have said all that I would wish to say in earlier parts of this Judgment in this regard.
I turn next to section 61DA. That section tells me that in considering making parenting orders, a presumption that there should be equal shared parental responsibility exists. This presumption would be found not to apply in the case of family violence (subsection (2)(a)), or it may be rebutted on the evidence before the Court. I have found that there has been family violence in this marriage, even though that violence is not particularised. That, to my mind, would have the section not apply.
If I am wrong in this finding then I must consider the evidence to see whether the presumption is rebutted or not. The evidence clearly establishes that these parties have little trust in each other. On the evidence I have heard, there is a total lack of communication between them. Indeed, as I understood the evidence before me, neither party is desirous of having communication with the other, even though both seem to grudgingly say that they could communicate for the benefit of their son. This I do not accept. I am satisfied that these parties have no wish or desire to communicate, nor is there between them any common ground that would be a basis to recommence communication between them.
The father seems to have no real idea of how he would propose to parent his son, and I am satisfied that there would be no community of approach to the issues that would arise in jointly parenting their son.
Thus, if I were to order equal shared parental responsibility, I am not in any way satisfied that these parties would be able to commence communication each with the other at a level that would be required before I would be satisfied they could talk, discuss, negotiate and reach agreement about the major issues concerning their son’s life. Accordingly, in the circumstances of this case, I would find the presumption for equal shared parental responsibility rebutted by the evidence.
I must turn then to section 65DAA of the Act requiring me to take into account and determine whether the parties should have equal time with the child, or whether the child should spend significant and substantial time with each parent. I stress that this is a consideration, not a presumption, as is the case with section 61DA regarding equal shared parental responsibility.
It is not the father’s case, as he now presents it at the conclusion of the evidence, that the parties should spend equal time with the child. Whilst that is of course not an end to it, I am satisfied in the circumstances of this case that such an order that the child spend equal time with each of his parents would be not in the best interests of the child. I am satisfied that it would not be sensibly or practicably possible to make such an order.
I must turn then to consider whether there should be significant and substantial time as provided for in section 65DAA. Significant and substantial has no definition within the Act. To my mind, it is a concept that must be peculiar and particular to each case, and each case must therefore be decided on its own merits.
The father, in this case, has not seen the child for some time. I am satisfied from Ms O’s evidence that there will be real difficulties in endeavouring to reintroduce the father into the child’s life.
I am of the view that, in the circumstances of this case, the mother’s care of the child would be detrimentally undermined by the child having to see the father. In saying this, I do not for one minute say that the mother is guiltless or blameless in all that has occurred.
I must act in the best interests of the child. To my mind, when I go back to the primary considerations imposed by section 60CC(2), I am not satisfied that in this case the father having a meaningful relationship with the child is to be promoted over the need to protect the child. I am concerned that the father has demonstrated no real ability or capacity to care for the child. I am not satisfied that he has any real appreciation of what will be required of him if the child were to spend time with him. I am concerned that the father has no insight into his difficulties with the consumption of alcohol and is therefore unable to appreciate or understand that his alcohol consumption may result in him not being at all times in a position to adequately care for his son.
As I have said, I have satisfied that I can accept the evidence of Ms O that to reinstitute the father’s time with the child now would present real and significant difficulties for the child. I am not persuaded that the father would do all that he could to assist in this process. I am not satisfied he would undertake counselling as a condition precedent before any time with his son, supervised or otherwise, commenced. I am left with the continuing and uncomfortable feeling that the father’s participation in these proceedings has been principally for the purpose of proving a point rather than actually obtaining time with his son.
However, I believe that the father should have an awareness of his son’s life and progress. In this particular case, I have come to the conclusion that whilst the father is not to spend time with the child, it is entirely appropriate for him to forward cards and gifts to the child and, as the child is now eight and a half years old, letters as well.
I further propose to order that the mother forward to the father within seven days of receipt copies of all school reports of the child, together with photographs of the child taken on his birthday and at Christmas time in each year within in a short timeframe after those respective occasions.
I have given very considerable thought to whether or not the father should be allowed telephone contact with his son. I am not satisfied that the father, if allowed to speak to the child, would be able to control or moderate his behaviour so as not to alarm and frighten the child. Accordingly, and not without some misgiving, I have come to the conclusion that there should not be telephone time between father and son.
I will further order that the mother is to notify the father of any medical emergency involving the child, and is to notify him of any medical treatment the child is to undertake. In this regard, I propose she do so within 24 hours of any such emergency arising.
I have also given considerable thought to requiring the parties and the mother’s new partner to attend appropriate counselling to obtain assistance. However, as the father is not to spend time with the child, I do not believe it is appropriate or necessary to order him to undergo such a process.
As I have found the mother is the person who is to have the care of this child, and the father is to have no time with the child, I do not believe it is necessary for the mother to attend any form of course or counselling which would be mainly designed in equipping her to deal better with the father for the purpose of the father spending time with his son. Whilst I have made comments concerning the mother’s behaviour, which are far from complementary of her, I do not believe that requiring her to undergo any course of counselling would be of benefit to the child. Accordingly, I do not propose to make any order for the mother to attend counselling either.

The father seeks an order that the mother not leave the child with any other person. As the father is to spend no face-to-face time with the child, I do not propose to make any order restricting the person or persons with whom the mother is entitled to leave the child. It is clear that the mother works and is required to be absent from the home for that purpose. In the circumstances it appears to me that the mother’s partner has in the past dealt adequately with the situation of the subject child and the mother’s daughter being left in his care. On the evidence that has been before me, I have no concerns that he is not capable of doing so in the future. I do not propose to make any order as sought by the father.
Another significant issue in this case, whilst not the subject of any great deal of evidence, was the situation of the mother travelling overseas. Each of the parties has connections with Country M. The father has travelled freely between this country and Country M for some years. The mother, as I understood the evidence, had no specific proposals to travel to Country M. However, for the future, it may well be the case that she would wish to do so.
In the circumstances of this case, I do not propose to make any order prohibiting her from l Australia and travelling overseas with the child. However, I do propose to order that she give the father 28 days notice of any intention do so, giving details of departure and return and the child and her whereabouts overseas. It will then be a matter for the father, should he choose to do so, to mount any application to the Court to in any way restrain or restrict the mother’s overseas travel with the child.

Application for costs on behalf of Independent Children’s Lawyer

Finally, there was an application made at the conclusion of the hearing on behalf of the Independent Children’s Lawyer that the parties pay the costs of the Independent Children’s Lawyer. Those costs were particularised as being for counsel’s fees $4,212 and for solicitor’s fees $9,571 thus a total of $13,783.
In dealing with that costs application, I am satisfied that the principle that each party should bear their own costs as set out in section 117 of the Act has application to an Independent Children’s Lawyer as well as to a party. However, I am satisfied that if circumstances justify the making of an order then it is appropriate to make such an order (subsection 117(2)). Those circumstances need not be special or extraordinary (see Penfold v Penfold[5]).
[5] (1980) 144 CLR 311
I am then to have regard to the matters set out in subsection 117(2A) of the Act when considering making a costs order. The first of the matters I must consider is the financial situation of the parties (subparagraph (a)). I accept that neither party is in an especially strong financial position. Each of the parties support themselves from their own work. The mother is employed; the father self-employed. I am satisfied that the father has been less than frank about his financial position.
It was submitted that the mother has an income of approximately $1,000 per week and has to date and in total spent approximately $54,000 in respect of these proceedings.
I am satisfied that neither party is in receipt of legal aid, and thus subsection 117(4) of the Act has no application.
The next consideration I will deal with is the conduct of the parties (subparagraph (c)). Each of the parties presented and ran their cases in an endeavour to obtain the orders that they seek. I find nothing particularly to the detriment of either party in the way in which they have endeavoured to do this.
It could be seen that the father has been wholly unsuccessful (subparagraph (e)) in that he has not obtained any order to spend time with his son.
However, balancing the issues as between parties and the Independent Children’s Lawyer, funded of course by the Legal Aid Commission of NSW, it appears to me that in the circumstances of this case, it is entirely appropriate that the parties make at least some contribution to the costs of the participation of the Independent Children’s Lawyer in this case.
I am not satisfied that I should simply order that the parties each pay half of the amount claimed on behalf of the Independent Children’s Lawyer, the sum of $6,891.50 each. However, I am satisfied that a contribution should be made that recognises the involvement of the Independent Children’s Lawyer and the assistance that they have provided in the conduct of this matter. I am satisfied in all the circumstances that an appropriate amount for each of the parties to pay is $4,500. This would mean, of course, a total of $9,000 is to be paid to the Legal Aid Commission of NSW, which, whilst clearly not the amount claimed, is nonetheless, having regard to the circumstances of these parties, a real and significant contribution towards the Independent Children’s Lawyer’s costs.
So far as it is necessary for me to record, I am entirely satisfied that the amount claimed both for counsel and solicitor in this case is appropriate.
I therefore propose to order that the father and mother each pay the sum of $4,500 to the Legal Aid Commission of NSW. I propose to allow 12 months for payment by each of the parties.

Conclusion

The orders that I then make are as set out at the commencement of these reasons for Judgment.

I certify that the preceding two hundred and fifty-five (255) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 6 December 2012.

Legal Associate:

Date: 6 December 2012

[2012] FamCA 1014

Key Legal Topics

Areas of Law

Family Law

Statutory Interpretation

Legal Concepts

Appeal

Costs

Jurisdiction

Procedural Fairness