Cobb & Papworth
[2023] FedCFamC2F 715
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cobb & Papworth [2023] FedCFamC2F 715
File number(s): PAC 2680 of 2020 Judgment of: JUDGE CARTY Date of judgment: 16 June 2023 Catchwords: FAMILY LAW – PARENTING –Spend time with arrangements for child with father – consideration of risk of harm to child from exposure to family violence –consideration of the benefit to child of having a meaningful relationship with both parents – parenting capacity – attitude to the responsibilities of parenthood – child’s right to enjoy her Aboriginal culture Legislation: Evidence Act 1995 s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, Pt VII
Cases cited: Blass v Blass (2022) FedCFamC1A 63
Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63
Division: Division 2 Family Law Number of paragraphs: 218 Date of last submission/s: 30 November 2022 Date of hearing: 21, 22, 23 and 30 November 2022 Place: Newcastle Counsel for the Applicant: Ms Blackman Solicitor for the Applicant: Legal Aid NSW Counsel for the Respondent: Mr Gallimore Solicitor for the Respondent: Rice More & Gibson Solicitors Counsel for the Independent Children’s Lawyer Ms Reheby Solicitor for the Independent Children’s Lawyer SVW Legal ORDERS
PAC 2680 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS COBB
Applicant
AND: MR PAPWORTH
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE CARTY
DATE OF ORDER:
16 June 2023
THE COURT ORDERS BY CONSENT THAT:
1.All previous parenting orders be discharged.
Live with order
2.The child X born in 2019 (“the child”) live with the mother.
AND THE COURT FURTHER ORDERS THAT:
Parental responsibility for the child
3.The mother have sole parental responsibility for the child.
4.The mother will notify the father in writing within seven days of her making a decision about a major long-term issue affecting the child, and will provide to the father all relevant details, including the name and address of any medical practitioner or allied health professional who assesses or treats the child, and the name and address of any pre-school or school where the child is enrolled.
Parents to engage with support services
5.The mother will forthwith make contact with, and thereafter engage with, a family support service (“the FSS”) such as B Contact Service, or similar, and complete any program or programs recommended by the FSS.
6.The father will forthwith make contact with, and thereafter engage with, the FSS such as Town C Family Support or similar, and complete any program or programs recommend by the FSS.
7.Each parent will enrol in and complete a D Parenting Program, or equivalent parenting program, within twelve (12) months from the date of these orders.
Spend time arrangements for the child with the father 2023 and 2024
8.The child spend time with the father during 2023 and 2024, unless otherwise agreed as follows:
(a)Until such time as the father provides to the mother’s solicitor a certified copy of the certificate demonstrating that he has completed twenty sessions of the men’s behaviour change program with E Counsellors in Town C, or an equivalent program:
(i)For or up to two (2) hours each fortnight supervised by City F Family Support Services, or such other supervision service that the parents agree upon;
(ii)The father is solely responsible for the costs associated with the supervised time;
(iii)Both parents will comply with the rules and reasonable directions of the supervision service;
(iv)If the mother cancels a scheduled visit for the child with the father then the child will have a make-up visit within the next week if possible, or as otherwise agreed.
(b)Upon the father providing to the mother’s solicitor a certified copy of the certificate which demonstrates that he has completed the men’s behaviour change program (“the certificate”):
(i)Commencing on the weekend following provision of the certificate, and for three calendar months thereafter, each alternate Saturday from 10.00am until 4.00pm, with the first three occasions of time to be spent in the presence of the paternal grandmother;
(ii)Following the expiration of three calendar months, and until the commencement of New South Wales Public School Term 1 in 2024, each alternate weekend from 10.00am Saturday until 4.00pm Sunday, with the first three occasions of overnight time to be spent in the presence of the paternal grandmother;
(iii)Commencing on the first weekend of New South Wales Public School Term 1 in 2024, and continuing throughout the school Terms in 2024, each alternate weekend from after school or 3.00pm on Friday until 4.00pm on Sunday;
(iv)During each New South Wales Public School Term school holiday period in 2024 the provisions of Order 8 (b) (iii) are suspended, and the child will spend time with the father;
(v)For one block period of up to three nights, and unless otherwise agreed in writing, during the first week of the school holiday period from 3.00pm on Friday until 4.00pm the following Monday; and
(vi)During the New South Wales Public Schools Christmas school holiday period at the end of 2024 the provisions of Order 8 (b) (iii) are suspended, and the child will spend time with the father for three block periods of up to four nights each, and if not otherwise agreed in writing, during the 2nd, 4th and 6th weeks of the Christmas school holiday period from 3.00pm the Friday until 4.00pm the following Tuesday.
Spend time arrangements for the child with the father commencing in 2025 and thereafter
9.Commencing on the first weekend of New South Wales Public School Term 1 in 2025 the child spend time with the father, unless otherwise agreed, as follows:
(a)During New South Wales Public School Terms, commencing on the first weekend of each school term, each alternate weekend from the conclusion of school or 3.00pm on Friday until commencement of school or 9.00am on Monday;
(b)For one half of each of the New South Wales Public School Term 1, 2 and 3 school holiday period:
(i)For the first week in odd years, commencing from 3.00pm on the last day of school and continuing until 4.00pm on the Sunday that is the midpoint of the school holiday period; and
(ii)For the second week in even years, commencing from 4.00pm on the Sunday that is the midpoint of the school holiday period and continuing until the commencement of school or 9.00am on the first day back at school.
(c)During the New South Wales Public School Christmas holiday period:
(i)When the school holiday period commences in an even year, from 3.00pm on the 2nd Monday of the school holiday period until 4.00pm on the 4th Monday, and from 3.00pm on the 5th Monday until 4.00pm the following Monday; and
(ii)When the school holiday period commences in an odd year, from 3.00pm on the last day of school until 4.00pm two weeks later, and from 3.00pm on 22 January until 4.00pm on 29 January.
Special occasions for the child with the father
10.From the start of 2024, in addition to the spend time with arrangements which are set out in these orders, the child will spend time with the father:
(a)On Father’s Day each year, and if on a weekend when the child is not already spending time with him, then from 10.00am until commencement of school or 9.00am the following Monday;
(b)At Christmas time:
(i)In even years, from 4:00pm on Christmas eve until 4.00pm on Christmas day; and
(ii)In odd years, from 4.00pm on Christmas day until 4.00 pm on Boxing Day.
(iii)During the Easter long weekend, save and except for when Easter falls during the school holidays, in which event the school holiday arrangements will apply:
A.In even years from the conclusion of school or 3.00pm on Easter Thursday until 4.00pm on Easter Saturday; and
B.In odd years from 4.00pm on Easter Saturday until the commencement of school or 9.00am the following Tuesday.
Special occasions for the child with the mother
11.From the start of 2024 the child’s time with the father is suspended on each of the following occasions and the child will spend time with the mother:
(a)For the whole of the Mother’s Day weekend each year;
(b)At Christmas time:
(i)In odd years, from 4:00 pm on Christmas eve until 4.00pm on Christmas day; and
(ii)In even years, from 4.00pm on Christmas day until 4.00 pm on Boxing Day.
(iii)During the Easter long weekend, save and except for when Easter falls during the school holidays, in which event the school holiday arrangements will apply:
A.In odd years from the conclusion of school or 3.00pm on Easter Thursday until 4.00pm on Easter Saturday; and
B.In even years from 4.00pm on Easter Saturday until the commencement of school or 9.00am the following Tuesday.
Changeover arrangements
12.Changeovers, unless the father is spending time with the child supervised, shall take place at the child’s pre-school or school when changeover occurs on a pre-school day or a school day. When changeover does not occur on a pre-school day or a school day, and unless otherwise agreed in writing between the parents, changeover will occur at McDonald’s Family Restaurant at City F (“McDonalds City F”) and the following provisions will apply:
(a)The father will be accompanied to changeover by another adult, who is known to the child;
(b)The father will notify the mother by text message of the name of the adult who will accompany him to changeover; and
(c)The father will remain in the car while the mother delivers the child to the nominated adult for changeover of the child to the father.
Child’s communication with the father
13.The child will have telephone communication with the father not less than once each week, and unless otherwise agreed each Wednesday between 5.00pm and 5.30pm, and to facilitate such communication the father will place a call to the mother’s mobile telephone number, and the mother will make sure that her telephone is switched on, charged and has sufficient credit for the child to speak with the father, and the mother will use her best endeavours to encourage the child to speak with the father.
14.The child will have a FaceTime/video call with the father, unless otherwise spending time with him:
(a)On Christmas day between 9.00 am and 9.30 am;
(b)On the child’s birthday between 5.00 pm and 5.30 pm; and
(c)To facilitate such communication the father will place a call to the mother’s mobile telephone number, and the mother will ensure that her telephone is switched on, charged and has sufficient credit for the child to speak with and see the father, and will use her best endeavours to encourage the child to speak with the father.
Father has liberty to attend events when child is spending time with him
15.During any period that the child is spending time with the father, pursuant to these orders, the father is at liberty to attend at the child’s school, pre-school, or at any other activity in which the child is involved, in order to participate in any function or activity to which parents are ordinarily invited.
Paediatrician referral for the child
16.The mother will forthwith do all acts and things to obtain a referral from the child’s treating general practitioner to a Paediatrician, for the purposes of a general paediatric assessment of the child, the mother will arrange for the child to be assessed at the earliest available appointment with the child’s Paediatrician.
17.The mother will inform the father in writing of the name and contact details for the child’s Paediatrician, and will authorise the child’s Paediatrician to provide directly to the father, at the father’s request and expense, a copy of any assessment report concerning the child.
Parents to keep each other informed of their contact details
18.Each parent must inform the other parent of their current mobile telephone number and email address (“their current details”), within forty-eight (48) hours from the date of these orders, and keep the other parent informed of their current details at all times and advise of the other parent of any change to their current details within twenty four (24) hours of such change occurring.
Restraints affecting the father
19.The father shall be and is hereby restrained from:
(a)Ingesting any medication when the child is in his care, or during the period of 12 hours prior to the child coming into his care, unless such medication is prescribed for him by a registered medical practitioner, and provided that the medication is used by the father strictly in accordance with the prescription of the registered medical practitioner;
(b)Ingesting any illicit substance when the child is in his care, or during the period of 12 hours prior to the child coming into his care;
(c)Discussing with the child the spend time arrangements with her outside of the court ordered arrangements;
(d)Criticising any aspect of the child’s development, or the child’s dress or physical appearance, in the presence of the child or within her hearing;
(e)Criticising any aspect of the mother’s care of the child, in front of the child or within her hearing;
(f)Attending the child’s day-care centre, pre-school or school, school events, social events, extracurricular activities, including sporting events, when the child is not in the father’s care pursuant to these orders, unless with the mother’s written consent, or unless at the express request of the relevant body.
Restraints affecting both parents
20.The parents shall be and are each hereby restrained from:
(a)Making any rude, unkind or negative comment about the other parent, or any member of the other parent’s family, in the presence or within hearing of the child;
(b)Permitting the child to remain in the presence or within the hearing of anyone else who is speaking in a rude or negative way about the other parent;
(c)Subjecting or exposing the child to family violence;
(d)Permitting the child to remain in the presence of any person who is perpetrating family violence.
Authorisation to liaise and receive information about the child
21.Both parents are authorised to liaise directly with the child’s medical providers and school and sporting bodies to receive medical reports, school notices, information, newsletters, school reports, school photographs and any other necessary information about the child’s progress.
Communication between the parents
22.For the purposes of these Orders, and unless in an emergency, communication between the parents shall occur in writing, including by text message.
Parents to immediately inform each other of any serious illness, injury or emergency affecting the child
23.In the event of any serious childhood illness, injury or emergency affecting the child, the parent who then has the care of the child will immediately contact the other parent to inform them of all relevant details including the name and contact details for any treating medical practitioner or other person or facility who is assisting the child.
Discharge of the appointment of the Independent Children’s Lawyer
24.That within twenty eight (28) days from the date of these orders the appointment of the Independent Children’s Lawyer is discharged.
NOTATION:
A.Section 4AB of the Family Law Act (1975) (Cth), which sets out the definition of family violence, is attached for the information of both parents, noting that the parents are each restrained from subjecting or exposing the child to family violence in all forms.
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 a pseudonym Cobb & Papworth has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE CARTY
INTRODUCTION
These parenting proceedings concern the child X (also referred to as “the child”) who was 3 years old at the date of hearing.
At the outset of the hearing, the applicant mother, Ms Cobb, (“the mother”) sought final parenting orders which would effectively eliminate the respondent father, Mr Papworth (“the father”) from the child’s life. By the conclusion of the hearing the mother had changed her position and proposed that the child spend time with the father, under professional supervision[1]. The Independent Children’s Lawyer (“the ICL”) sought orders similar to the orders sought by the mother[2].
[1] Exhibit K
[2] Exhibit L
The father conceded that the child will continue to live with the mother, and he proposed that the parents have equal shared parental responsibility for the child, and that the child spend time with the father on an unsupervised basis each alternate weekend and during school holidays[3].
[3] Respondent’s Outline of Case, Annexure B
There are risk of harm issues in the household of each of the parents which require careful consideration in this case. For the reasons which are discussed below, the court has determined that it is in the child’s best interests that the mother have sole parental responsibility for the child and that the child continue to live with the mother. Further, that it is in the best interests of the child to commence spending regular and consistent time with the father, which will be unsupervised immediately upon the father providing evidence that he has completed the men’s behaviour change program, in which he was engaged, and yet to complete, at the time of the hearing.
BACKGROUND
In this background, statements of fact are to be construed as findings unless otherwise stated.
The mother was born in 1991. She is 31 years old. The mother lives in the City F area. She wishes to keep her current residential address private from the father. The mother is a proud Aboriginal woman, from G Country, and it is important to her to maintain connection to land and culture, and that the children live with her on country in City F[4]. The mother works as a cleaner, and has four children:
(a)W born in 2007, 15 years old at hearing;
(b)Y, born in 2015, 7 years old at hearing;
(c)The subject child, X born in 2019, 3 years old at hearing; and
(d)Z born in 2021, 17 months old at hearing.
[4] Mother’s affidavit paragraph 20
X and her maternal half-siblings, Y and Z, live with the mother. W does not live with the mother. W lives with one of the mother’s friends, Mr H, who is not her biological father[5].
[5] Ibid, paragraph 5 the mother says “W’s father is Mr H”. During her oral evidence the mother said that Mr H is not W’s biological father, and that the mother has never been in a sexual relationship with Mr H. She said that she and Mr H were living together and that the mother was best friends with his daughter who “went astray”, and that the mother remained living with Mr H after this, they remained friends and that W has a parental relationship with Mr H.
The father was born in 1973. He was 49 years old at the hearing. He describes his occupation as Labourer. He lives at Town J, New South Wales, in a home which he owns. The father identifies as a proud Aboriginal man, from G Country. X is his only child.
In 2005 the father suffered an injury at work, and has been unable to work since.[6] He is reliant on the Disability Support Pension, and takes prescribed medication for his injury and related issues. He cannot sit for long periods and needs help to lift heavy objects.
[6] Father’s affidavit filed 14 October 2022 paragraphs 17-21
The parents commenced their relationship in early 2018, and soon after the mother, with W and Y, moved into the father’s home at Town J. The parents commenced to share the care of W and Y, and later X, with regular assistance from the paternal grandmother Ms K.
The parents separated on a final basis on 23 April 2020. Prior to their final separation, the parents lived separately and apart during the period from October 2019 until 14 January 2020. The mother left X, then an infant, in the care of the father throughout that period. The mother has claimed that the father would not allow her to spend time with X, which the father denies.
At final separation the mother moved out of the father’s home with the children. She drove away in Motor Vehicle 1 which she knew was registered in the father’s name. The mother forged the father’s signature on a transfer document, knowing that it was the wrong thing to do, and submitted the false document to the government authority.
The mother made a report to police which lead to a provisional Apprehended Domestic Violence Order (ADVO) against the father for the protection of the mother and Y. X was not nominated as a protected person on the ADVO. In addition to the mandatory conditions the father was restrained from approaching or contacting the mother and Y unless through a lawyer, and from approaching any school or other place the mother or Y might be, including Town J School.[7] The mother and the children stayed with a friend, Ms L, and then in emergency accommodation at Town M, followed by temporary accommodation at Town M, before the mother moved into a rental home in the City F area in mid-2020.
[7] Mother’s affidavit, Annexure C-1; Father’s affidavit Annexure B
X lived with the mother, until the father retained the child following a pre-arranged spend time visit which had commenced on 22 May 2020[8] and had been extended, at the mother’s request, until 29 May 2020. The father says that he was really worried about the child because the mother had nowhere to live, and he felt that the child was not safe.[9] The father kept the child until 3 August 2020. In June 2020 the mother asked the Town C Police to conduct a welfare check on the child at the father’s house.[10]
[8] paragraph 122-124
[9] Father’s affidavit paragraph 87
[10] Mother’s affidavit paragraph 134
On 5 June 2020 the mother filed an Initiating Application, seeking final and interim parenting orders, including a recovery order for return of the child to her. She sought final parenting orders, including sole parental responsibility for the child, that the child live with the mother and spend supervised time with the father for two hours each fortnight. The mother sought restraining orders against the father for the protection of herself and the child.
On 22 June 2020, pending an interim hearing, interim orders were made by consent, including that the child spend time with the mother each alternate weekend from 10.00 am Friday until 4.00 pm Sunday, with changeover outside the residence of the paternal grandmother, with the father not to be present. The father was ordered to file his response material, and an Independent Children’s Lawyer (“the ICL”) was appointed for the child.
On 2 July 2020 the father filed a Response seeking final and interim parenting orders including that the child live with him, and spend time with the mother each alternate weekend from Friday 10am to Sunday 4pm.
In July 2020 a Final ADVO was made against the father for the protection of the mother and Y for a period of 12 months, on the same terms as in the Provisional ADVO[11].
[11] Father’s affidavit Annexure C
In mid-2020 the mother was charged with an offence, due to her forging the signature of the father on the vehicle transfer document.[12]
[12] Mother’s affidavit Annexure C-5
On 14 July 2020, an order was made that the mother submit to a Hair Follicle Test “(HFT”) to detect the use of illicit and non – prescription substances, and the interim hearing was adjourned until 3 August 2020. On 15 July 2020 the mother provided a 3.81 cm sample of her hair for 5 panel testing for illicit drugs, with no drugs detected.[13] The mother has since provided a urine drug and alcohol test on 18 November 2020, with no drugs or alcohol detected,[14] and on 4 October 2022 she provided a 3.81 cm sample of hair for 5 panel testing for illicit drugs, with no drugs detected.[15]
[13] Ibid Annexure C-4
[14] Ibid Annexure C-12
[15] Ibid Annexure C-39
On 3 August 2020, by consent, the court ordered that all previous interim parenting orders be discharged. The father agreed to deliver the child to the residence of the paternal grandmother for the mother to collect her, and not to be present when the mother attended. The interim parenting orders provided that the child live with the mother, and spend time with the father fortnightly on Wednesday from 10.00 am to 1.00 pm, under the supervision of the paternal grandmother, and fortnightly for up to three hours, under supervision of N Children’s Contact Centre at Town O. The parents were ordered to undertake a Carbohydrate Deficient Transferrin (“CDT”) test to detect excessive alcohol use within seven days, and within 14 days the father was to submit to HFT to detect illicit and non-prescription substances. An order was made that the matter be transferred to the Specialist Indigenous List in the Sydney Registry of the court.
In late 2020 the mother pleaded guilty to her offence charge. She was sentenced to a Conditional Release Order.
On 15 September 2020 the paternal grandmother signed an Undertaking agreeing to supervise the father’s time with the child, and in the event that during any period of time that the paternal grandmother is supervising the child the father:
(a)appears drug affected;
(b)is abusive, violent or aggressive towards any person present; or
(c)attempts to abscond with the child, then the paternal grandmother must cease the time and immediately advise the mother, and if the father has absconded with the child, then inform the police. The paternal grandmother also undertook to notify the mother if she was unable to supervise time on any occasion.[16]
[16] Ibid Annexure C-9
On 23 October 2020 the parties were ordered to attend mediation or alternative dispute resolution, and a Family Report was ordered.[17] By consent, all previous parenting orders were discharged and interim orders made that the child live with the mother, and spend time with the father each alternate Wednesday from 9.30am until 3.00pm under the supervision of the paternal grandmother, with changeover at her residence, and on the other Wednesday from 10am-1pm under supervision of N Children’s Contact Centre at Town O. The parents were ordered to undergo a chain of custody urinalysis test at the request of the ICL, with such requests intended to be made no more frequently than once every six weeks.
[17] Pursuant to s. 62G Family Law Act 1975 (Cth)
On 29 January 2021 it was ordered by consent that the alternate Wednesday time for the child with the father would be supervised from 10.00 am until 1.00 pm at City F Family Support Service (“FSS”), due to delays in accessing supervision at the Town O service[18].
[18] Mother’s affidavit paragraph 160
In mid-2021 the mother made an application to the Local Court at Town C to vary the Final ADVO made in mid-2020 by extending the period that the order would remain in force.
In early 2021 at 10.00am the mother delivered the child to the paternal grandmother to spend time with the father. The father retained the child in his care for two days and then returned her to the mother.
On 23 April 2021 the father filed an Application in a Case seeking an order that the child live with him, and spend time with the mother every second weekend from 10.00 am – 3.00 pm on a supervised basis.
On 30 April 2021 the mother filed a Response to Application in a Case seeking that the father’s application be dismissed, and that the father undertake HFT.
On 3 May 2021 the parties were ordered to attend s.11F Child Dispute Conference. By consent, and pending interim hearing, the order that the child spend time with the father under the supervision of the paternal grandmother was suspended. The father was ordered to undertake a further HFT within 7 days and submit to further HFT at the request of the ICL, and the parties were ordered to attend mediation. The court noted that the issue of the parents attending a P Parenting program and the father attending a men’s behaviour change program had been raised, and that the father sought an interim hearing.
In 2021 the mother’s youngest child Z was born. Z’s father is Mr Q.
In mid-2021, upon the application of the mother, an Interim ADVO was made against the father for her protection and for the protection of Y, on the same terms as the previous Provisional and Final ADVOs[19].
[19] Ibid Annexure C-25
On 23 June 2021 the mother attended the R Course[20].
[20] Mother’s affidavit C-27
In mid – November 2021 the father cancelled all further bookings for supervised visits at FSS[21]. On 17 December 2021 FSS re-opened the case at the father’s request[22] and supervised time for the father with the child recommenced on 4 February 2022, after a three month hiatus.[23]
[21] Ibid C-37
[22] Ibid paragraph 235
[23] Ibid paragraph 236
On 10 February 2022 the Family Report prepared by Family Consultant/ Court Child Expert Ms S (“the expert”) was released to the parties (“the Expert Report”).
On 29 March 2022, the proceedings were transferred to the Newcastle Registry of the Court. By consent, the parties were to submit to HFT by 17 May 2022, the father was to attend the Disrupting Family Violence program, and the mother was to enquire about parenting programs at FSS. It was noted that X was enrolled in childcare.
On 7 April 2022, upon the application of the mother, a Final ADVO was made against the father for the protection of the mother for a period of six months, with the mandatory conditions, and a condition that the father does not approach the mother[24].
[24] Ibid Annexure C-39; Father’s affidavit Annexure E
On 12 May 2022 the mother completed the T Parenting Course conducted by FSS.[25]
[25] Ibid Annexure C-41
The final hearing proceeded over the course of three days on 21, 22 and 23 November 2022. The hearing was not completed within the time allocated, and final submissions were heard on 30 November 2022. The mother was represented by Solicitor – Advocate Ms Blackman. The father was represented by Mr Gallimore of Counsel. The Independent Children’s Lawyer was represented by Ms Reheby of Counsel.
THE LEGAL PRINCIPLES
Parenting orders are made under the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”). The objects of Part VII, and the principles underlying the objects, are set out in section 60B of the Act.
Section 60CA of the Act provides:
“In deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration.”
In determining what is in the child’s best interests, the court must consider the matters set out in sections 60CC (2) and (3) of the Act in so far as they are relevant.
When making a parenting order the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child (s.61DA). The presumption does not apply if there are reasonable grounds to believe that a parent of a child has engaged in abuse of the child (or another child who was a member of the parent’s family) or family violence.
The presumption can be rebutted by evidence that satisfies the court that it would not be in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child.
When the court makes an order for the parents to have equal shared parental responsibility for a child, then the provisions of s.65DAA apply and the court must consider whether it is reasonably practicable and in the best interests of the child for the child to spend equal time with each parent.
Where equal time is not reasonably practicable or not in the best interests of the child then the court must consider whether it is reasonably practicable and in the child’s best interest to spend substantial and significant time with each parent.
DCOUMENTS RELIED UPON
In support of her case the mother relied upon:
(a)Outline of Case document (Final Hearing) filed 16 November 2022;
(b)Amended Initiating Application filed 14 October 2022;
(c)Her affidavit filed 14 October 2022; and
(d)A number of Exhibits.
In support of his case the father relied upon:
(a)Outline of Case document (Final Hearing) filed 18 November 2022;
(b)His affidavit filed 14 October 2022;
(c)Affidavit of Ms K filed 8 November 2022;
(d)Family report of Ms S dated 1 February 2022; and
(e)A number of Exhibits.
The Independent Children’s Lawyer relied upon:
(a)Case Outline (Final Hearing) filed 16 November 2022;
(b)Family Report prepared by Ms S dated 1 February 2022; and
(c)A number of Exhibits.
THE PROPOSALS OF THE PARTIES
The mother’s proposal
As noted previously, the mother’s position changed by the conclusion of the hearing. Originally she proposed that the child spend no time with the father. Ultimately the mother proposed the following final orders[26]:
[26]Exhibit K
(1)The mother have sole parental responsibility for the child;
(2)The child live with the mother.
(3)The child spend time with the father under supervision at the City F Children’s Contact Service (“CCS”) for no less than two (2) hours per month on dates and times nominated by CCS and the father be solely responsible for all costs associated with the supervised time;
(a)That the child communicate with the father via telephone (audio only) on the following days and times with the mother to initiate and facilitate the call to the father’s mobile telephone:
(i)At 9:00am on Father’s Day;
(ii)At 9:00am on Christmas Day;
(iii)At 5:00pm on the child’s birthday; and
(iv)For the purposes of this order the father shall advise the mother’s solicitor within 7 days of the date of this order of the mobile telephone number to be called for this communication.
(4)Pursuant to section 68B of the Family Law Act 1975 (Cth) the father is restrained and an injunction shall issue, prohibiting him from doing any of the following:
(a)Attempting to contact the child or mother by any means, including through a third party except if the contact with the child is in accordance with the orders;
(b)Approaching or coming within 100 metres of any place where the child or mother might reside from time to time;
(c)Approaching or coming within 100 metres of any place where the child might attend day care, preschool or school from time to time;
(d)Knowingly approaching or coming within 100 metres of the child or the mother at another location; and
(e)Removing the child from any day care, preschool or school, or from the care of the mother or any other person at any other location in whose care the mother has placed the child.
The father’s proposal
The father proposed final orders which were set out in the Minute of Final order at Annexure B to his case outline document, in summary that:
(1)The parents have equal shared parental responsibility for the child.
(2)The child live with the mother.
(3)The child spend time and communicate with the father:
During school term:
(a)Every second weekend, commencing the first Friday after the date of these Orders from the conclusion of school Friday, or 5.00 pm if Friday is a non‑school day, to the commencement of school Monday, or 9.00am if a non-school day;
(b)For one half of each of the term 1, 2 and 3 school holiday periods as agreed and, in default of agreement, for the first week in odd years and the second week in even years;
(c)For one half of the long summer school holidays as agreed and in default of agreement, in fortnightly blocks, save for the Christmas arrangements as set out herein;
(d)If Father’s Day falls on a weekend when the child is not already spending time with the father, from 5:00 pm on the Saturday before Father’s Day until 5:00 pm on Father’s Day; and
(e)On each of the child’s and the father’s birthdays, for a minimum of two hours if the birthday falls on a school day and a minimum of four hours if the birthday falls on a non-school day.
(4)At Christmas:
(a)In even years, from 5:00 pm on Christmas eve until 12:00 noon Christmas day; and
(b)In odd years, from 12:00 noon Christmas day until 5:00 pm Boxing day.
(5)During the Easter long weekend, save and except for when Easter falls during the school holidays, in which event the school holiday arrangements will apply:
(a)In even years from the conclusion of school on Easter Thursday until 12:00 noon Easter Saturday; and
(b)In odd years from 12:00 noon Easter Saturday until the commencement of school the Tuesday following Easter Monday.
(6)Such further and other times as may be agreed between the parties.
(7)The child’s time with the father shall be suspended:
(a)If Mother’s Day falls on a weekend when the child is to be spending time with the father, from 5:00 pm on the Saturday before Mother’s Day until 5:00 pm Mother’s Day; and
(b)On each of the child’s and the mother’s birthdays, if the child is to be spending time with the father on those occasions, for a minimum of two hours if the birthday falls on a school day and a minimum of four hours if the birthday falls on a non-school day.
(8)For the purpose of these Orders, changeover shall take place via the child’s day care or school if a day care or school day and at the McDonalds Town C if not a day-care or school day.
(9)Each parent shall encourage and facilitate telephone communication between the child and the other parent whilst the child is in their care as requested by the child, but no less frequently than once every 3 days.
(10)Each parent shall keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within 7 days of such change.
(11)For the purposes of these Orders, communication between the parties shall occur as agreed in writing and failing agreement by text.
(12)In the event of childhood illness or emergency, the parent with whom the child is with shall contact the other parent forthwith to inform them.
(13)Each of the parties is hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party in the presence or hearing of the child, and shall remove the child from the presence or hearing of any other person doing such, and
(b)Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the child, and shall remove the child from the presence or hearing of any other person doing such.
(14)Both parents shall be permitted to liaise directly with the child’s medical providers, school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the child’s progress.
(15)Each party is at liberty to attend at the child’s school, day care or other activities in which she is engaged for the purposes of any function or activity normally attended by parents.
The proposal of the Independent Children’s Lawyer (“the ICL”)
On the penultimate day of hearing the ICL tendered a minute of the final parenting orders[27] she sought as follows:
[27] Exhibit L
(1)That all previous parenting orders be discharged.
(2)That the mother shall have sole parental responsibility for the child, X born in 2019 (“X”) and in the exercise of her parental responsibility, the mother must notify the father in writing within 7 days of any long-term decisions made for the child.
(3)That X shall live with the mother.
(4)X shall spend time with the father as follows:
4.1For up to two hours once per month supervised by EE Contact Service, City F (or such other supervised service as agreed between the parties) with the days and times to be arranged with the supervision service, and in respect of this time:
4.1.1the father shall be solely responsible for all costs associated with the visits;
4.1.2both parties will comply with the rules and directions of the supervising service;
4.1.3if the mother cancels a scheduled visit then the child shall have a make-up visit within the next fortnight or as arranged with the supervising service; and
4.1.4Should the father fail to attend on three (3) consecutive scheduled visits then the child’s time with father is suspended unless otherwise agreed in writing as between the mother, the supervising agency and the father.
(5)That X shall have a FaceTime/video call with the father as agreed and failing agreement as follows:
5.1.1On Father’s Day between 9.00am and 9.30am;
5.1.2On Christmas Day between 9.00am and 9.30am; and
5.1.3On X’s birthday between 5.00pm and 5.30pm.
5.2The Mother will have the FaceTime/video call on speaker; and the Father is to ensure that the communication is child-focused.
5.3The mother shall facilitate the call by calling the father’s mobile phone and making the child available to speak with the father.
Assessment
(6)That the mother shall do all acts and things for a paediatric assessment of X as soon as possible and to facilitate this shall arrange that X has been placed on a waiting list for an appropriate paediatrician within fourteen (14) days of these orders.
(7)That within fourteen (14) days of receipt of any paediatric assessment report the mother shall send a copy of the report to the father.
Specific Issues
(8)Both parties must inform the other party of their respective telephone number, mobile telephone number, and email address (if any), if they have not already done so, within forty-eight (48) hours from the date of making these orders and shall keep the other party advised of such details at all times and advise the other party of any change of such details within twenty-four (24) hours by text message.
(9)The father shall be at liberty to provide appropriate gifts and cards to X for special occasions.
(10)The paternal family shall be at liberty to attend to spend time with the child during the scheduled visits.
(11)That the father shall complete the men’s behaviour change program in which he currently enrolled with EE Contact Service, City F and upon completion of such program, the father shall contain a signed certificate of completion and provide to the mother a copy of such signed certificate of completion within forty-eight (48) hours of receipt of such certificate.
(12)The mother shall forthwith engage with family support services such as B Program and continue to engage as required by the service.
(13)Both parties shall enrol and complete the D Parenting Program within 12 months of the making of these orders.
Restraints
(14)The father is restrained from:
14.1.1Consuming alcohol or illicit drugs for twenty-four (24) hours prior to any contact with the child;
14.1.2Discussing with X spending time with her outside the current arrangements or Court Ordered time; and
14.1.3Criticising X’s development or appearance in front of her.
14.1The father shall not attend X’s daycare/schools, school events, social events, extracurricular activities, including sporting events, without the mother’s written consent.
(15)Both parties are be restrained from saying unkind things about the other in the presence, or hearing, of X and both parties are to use their best endeavours to stop anyone else from doing so in the presence or hearing, of X.
Dispute Resolution
(16)In the event of any dispute as to the interpretation, implementation or enforcement of this Order, or any other parenting matter including but not necessarily limited to the progression of X’s time with the father, then the father and the mother shall first attend family dispute resolution (FDR) with a qualified practitioner appointed by the parties prior to the commencement of Court proceedings.
16.1Failing agreement as to the appointment of an FDR practitioner, the party who is proposing FDR shall nominate three FDR practitioner, and the other party shall choose one of those practitioners within fourteen (14) days.
16.2The father and the mother shall attend the appointment of such an FDR practitioner making a genuine attempt to resolve the dispute.
16.3The cost of the FDR practitioner shall be shared equally between the father and the mother.
IN THE ALTERNATIVE, IF THE COURT FINDS THAT THE FATHER DOES NOT POSE AN UNACCEPTABLE RISK OF HARM:
(17)Upon the father undertaking and completing the following:
17.1A psychiatric assessment including his capacity for emotional regulation, cannabis use, and any other diagnosis with such an assessment to include a treatment and or rehabilitation plan;
17.2 Undertake the recommended treatment;
17.3 A parenting course such as D Parenting Program
17.4 Engage with family support services to assist with parenting skill; and17.5Providing the mother with a report from the treater as to the father’s compliance with recommendations and progress with treatment.
(18)Then after a period of 12 months from the making of these orders, Order 4.1 above shall cease and X shall spend time with the father as follows:
18.1On the first weekend of each month from 10am to 4pm on either Saturday or Sunday;
18.2The changeover shall be supervised by City F, EE Contact Service (or agreed supervising service);
18.3Any costs shall be met by the father;
18.4If the mother cancels any visits, then the child shall have make up time the following weekend or as arranged through the supervising service; and
18.5Should the father fail to attend on three (3) consecutive scheduled visits then the child’s time with father shall be suspended unless otherwise agreed in writing as between the mother, the supervising service and the father.
Discharge of the ICL
(19)That within twenty-eight (28) days from the date of these orders the Independent Children’s Lawyer (ICL) shall arrange a conference with X to explain these orders and thereafter the ICL shall be discharged.
Notations:
A.To address the risks to the child in her spending unsupervised time with the father, the father needs to complete the following:
(i)A psychiatric assessment including his capacity for emotional regulation, cannabis use, and any other diagnosis with such an assessment to include a treatment and or rehabilitation plan.
(ii)Undertaking the recommended treatment.
(iii)Completing a parenting course such as D Parenting Program.
(iv)Engage with family support services to assist with parenting skills
(v)Providing the mother with a report from the treater as to the father’s compliance with recommendations and progress with treatment.
B.Upon the father undertaking the above and providing evidence of the same, then parties shall discuss the extension of the child’s with the father.
C.In the event that the parties cannot reach any agreement, then the father shall be at liberty to make an application to the court for an increase in time with the child provided that any such application shall not be made within 24 months of the date of these orders.
ISSUES FOR DETERMINATION
The following key issues require determination by the court:
(a)The spend time arrangements for the child with the father, including whether the risks of harm for the child in the care of the father are so high as to warrant ongoing and long term supervision by a professional agency of the child’s time with the father; and
(b)Allocation of parental responsibility for the child.
THE EVIDENCE
The mother was a poor witness. She commenced her oral evidence around 12.22 pm and the court adjourned for lunch at 1.00 pm. The mother resumed her oral evidence about 2.15 pm and her evidence was completed by 4.00 pm. The mother was assertive under cross examination. She took every opportunity to advocate her own case. She was argumentative, and became surly and impatient when Learned Counsel for the father requested that she read over a document. She became angry and argumentative, and spoke over Counsel, when challenged about her assertion that the father had isolated her in a small town. The mother’s demeanour in the witness box cannot be explained by her having been required to give evidence over an extended time frame.
The mother conceded that, during their relationship, the father received the sum of $125,000 and that the monies were used to make several purchases, including Motor Vehicle 1 for the mother to drive, and a car for the father. The mother conceded that a significant amount of money was spent within a short period of time. She insisted that the parties purchased the Motor Vehicle 1 together, from savings accumulated for that purpose, and she denied telling the family consultant that the father had bought a car so that she could go and visit friends[28]. She volunteered during her oral evidence that she had visited one friend during the whole relationship. When pressed, she conceded that the father bought her a car so that she could visit her friends, and that she had willingly moved into the father’s house with her children. I formed the impression that the mother was prepared to exaggerate her evidence to bolster her claim that the father had isolated her.
[28] Expert Report paragraph 42. There was no challenge to the family consultant’s evidence in this paragraph.
Ultimately, the mother has retained Motor Vehicle 1 in her possession, and she was still driving it at the date of hearing. The father agreed, in cross examination, that originally he had registered the car in the mother’s name and, after she left in October 2019 leaving X with him, she had attended at his residence and signed the Motor Vehicle 1 over to the father, after speaking with the paternal grandmother.
The mother spoke over the top of Counsel and became angry when asked about her forging the father’s signature on the transfer. She took the opportunity to advocate her own case, volunteering that she was fleeing a domestic violence relationship. While that might explain why the mother drove away in the father’s car, it does not explain why she forged his signature on a public document and lodged the document with a public authority. Inconsistent with her expression of remorse,[29] during her oral evidence, the mother minimised and justified the fraudulent conduct.
[29] Mother’s affidavit paragraph 154
The mother alleged[30] that the father had coerced Y’s father, Mr U, to provide an affidavit in support of the father’s case. Under cross examination, she conceded that she is not on good terms with Mr U, and that they do not speak to one another. She conceded that Mr U has never told her that the father coerced him into providing an affidavit. She reluctantly conceded that as she does not know whether or not Mr U was coerced to provide an affidavit, and that there is no basis for her to assert that the father coerced Mr U. The mother’s baseless assertion demonstrates her preparedness to give evidence which is not accurate, to bolster her case.
[30] Ibid, paragraph 271.The Expert read the Affidavit of Mr U, filed on 28 July 2020. The expert noted that Mr U alleges that the mother was physically and mentally abusive towards him, particularly when affected by alcohol or cannabis [at 24]. The father did not rely upon Mr U’s affidavit at the trial.
The court child expert noted that “[Ms Cobb] alleges that she is not violent and has never been violent during her relationships”.[31] In her affidavit the mother admits that, following the parents’ initial separation in October 2019, she attended at the father’s home to pack her possessions, and the things she needed for Y. The father was helping her pack her things into his vehicle. The mother told the father that if he kept breaking her things she would “take a screwdriver to the vehicle.”[32] She admits that she “launched” at the father and “started to hit” him and she says “I am not proud of my actions or the way I behaved”.[33] It appears that the mother was not truthful when she told the expert that she has never been violent.
[31] Expert report paragraph 24
[32] Mother’s affidavit paragraph 69-71
[33] Mother’s affidavit paragraph 71
When it was put to the mother that the child was not upset when separating from her, in order to spend time with the father at FSS, the mother answered “I don’t know I wasn’t there”. She was forced to concede that she was there, because it was she who handed the child over to the staff at FSS. The mother was sometimes glib and evasive in her responses to questions in cross examination.
The mother confirmed that, at separation in October 2019, X remained with the father and that when the mother returned to the relationship in January 2020 the child was physically healthy. She reluctantly conceded that the father was able to keep X physically healthy between October 2019 and January 2020, that there was no supervision of him at that time, and that the father has shown an ability to care for X.
The mother said that when X came back to her, in August 2020, after being retained by the father “she absolutely hated me, she would scream, she would kick, she would bite, she would hit. I just cried and it broke my heart.” She alleged that the father had said that he would make the child hate her and that she would never see the child again. The father denied that he had said this to the mother. The mother reluctantly conceded that it was just her belief and speculation that X’s behaviours towards her, noted above, resulted from something the father had done. The mother angrily spoke over Counsel when it was put to her that the father had cared for X adequately, that he and X had a strong relationship, that the child loves the father, that there had been no breaches by the father of the ADVOs which were in place for the protection of the mother and Y, and later for the protection of the mother only, that Mr Q has used cannabis, and that the mother has bought the child into contact with him. When Counsel asked the mother to agree that it was not reasonable to deprive X of a relationship with the father, she answered “No I don’t agree. I know she loves the father, they have a great bond but there is a big huge issue with her mental state of mind and her emotional state”. The mother went on to say that she is worried that the child will be physically assaulted and physically abused and that “the list just goes on and I have huge concerns”. Given that the mother had expressed no concern previously that the father ever has, or ever would, physically assault the child, I consider that the mother embellished her evidence in an attempt to bolster her case.
The mother has a history of childhood trauma. When she commenced her relationship with the father she had had a difficult life with her family and with her two previous relationships[34]. She has had to acquire skills to assist her to provide for herself and the children. She is young, street smart, literate, and an experienced parent. She found living with a much older man challenging, as he was set in his ways, and they had different views about running a house. She gave up work shortly after she moved in with the father and felt isolated in Town J. Her current supports appear to be Z’s father Mr Q, and her counsellor at the V Centre in City F. Having seen and heard the mother giving her evidence, I accept as accurate the assessment of the expert that the mother is “adept at providing information” to further her own objectives[35].
[34] Expert report paragraph 73
[35] Expert Report paragraph 47
The mother’s failure to provide evidence from Mr Q
During cross examination the mother said that she has never been in a relationship with Mr Q, who is the father of her youngest child Z. She said that they have had sexual intercourse, and that she met Mr Q in 2020.
The mother’s oral evidence is inconsistent with evidence in the expert report that she “…is currently in a relationship with [Mr Q]…”[36] and “She states that her current partner and the father of her youngest child [Mr Q] works in [Town C] but spends considerable time at her home.”[37]
[36] Expert Report paragraph 11
[37] Ibid 37
The mother admitted that she was asked by the expert to come to the Town O Registry of the court and bring Mr Q with her to be interviewed and observed for the preparation of the family report. The mother said that Mr Q had just started a new job. She talked to him about attending, but she didn’t think it was necessary for him to do so, even though the expert had asked her to bring him along. Counsel put to the mother that she had made the decision not to bring Mr Q, despite being asked to do so. She answered, non-responsively, that she was not in a relationship with him and, when pressed, she was forced to concede that she had made the decision not to bring Mr Q to the interview. She denied that Mr Q was hanging around the Town O Registry while she was being interviewed by the expert.[38] She said she did not ask Mr Q to provide an affidavit in these proceedings “Because I don’t find that necessary”.
[38] The father deposes that he saw Mr Q sitting in the mother’s car outside the office building in Town O when he attended for the family report interviews: Father’s affidavit at paragraphs 160-161
The mother agreed that the expert had wanted to hear from Mr Q, and that the court might want to hear from Mr Q, and eventually conceded that she should have asked Mr Q to provide an affidavit.
The mother is allowing Mr Q to spend time in her home, and he is the father of her youngest child. The mother says that Mr Q attends at her home irregularly, sometimes fortnightly, sometimes every three weeks and sometimes monthly. The mother has left the children in his care “a handful of times when [she] ducked down to the shops quickly” and said that the last time she did this was a couple of months ago. Clearly X is exposed to Mr Q while in the household of the mother. Unfortunately little is known about Mr Q’s circumstances, apart from the very scant details the mother has provided, and the information which is contained within a police entry. In late 2019 Mr Q was stopped in Town C for the purpose of random testing. He produced a NSW Provisional P1 licence[39]. An oral fluid test produced a positive detection for cannabis. He was arrested for the purpose of a secondary test, and told police “I had cones yesterday”. Ultimately he had a positive result for cannabis and was charged.
[39] Exhibit O
The mother said “there is a difference between a drug abuser and a casual user”, and that she has not spoken to Mr Q about him ceasing cannabis. She became impatient with Counsel when asked to read a document. She said she has discussed Mr Q’s drug use with him, but she has not asked him to stop using drugs, as he does not live with her and the children, and any drug use is not on her property. She conceded that Mr Q could use cannabis away from the property, and then attend at the property affected by cannabis, and she agreed that this would not stop her from bringing the children into contact with him.
Counsel for the father submitted that the court would draw an inference that the evidence of Mr Q would not have assisted the mother’s case.
The Full Court has had occasion recently to consider the law in respect of a failure to call a witness. Their Honours[40] in Blass v Blass [2022] FedCFamC1A 63 said:
24.In ASIC v Hellicar [2012] 247 CLR 345 (“Hellicar”) at [165], the plurality of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ firstly observed, on the issue of the failure to call a witness, that:
“Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led... And there are cases where demonstration that other evidence could have been, but was not, called may properly be taken to account in determining whether a party has proved its case to the requisite standard. But both the circumstances in which that may be done and the way in which the absence of evidence may be taken to account are confined by known and accepted principles which do not permit the course taken by the Court of Appeal of discounting the cogency of the evidence tendered by ASIC.”
25.At [167], the plurality then referred to Jones v Dunkel, as an example of the application of such principles, quoting:
...“that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence”.
[40] McLelland DCJ, Gill and Schonell JJ at [20] and following
In the present case if the mother had called Mr Q to give evidence then the court would have the benefit of hearing from him, which might have assisted to better inform the court’s conclusion about X’s circumstances in the mother’s home. I consider that is it open to me to draw an inference that Mr Q’s evidence would not have assisted the mother’s case.
However, the absence of evidence from Mr Q is not, in and of itself, cause to make a finding that the child is at risk of harm in the mother’s household due to his presence. Inferentially, by conceding that the child with continue to live with the mother, and by not seeking a restraint in relation to the child’s interactions with Mr Q, the father appears not to be concerned that the child is at risk of harm in the household of the mother, although to be fair to the father, so little is known about Mr Q that it is not possible to make a proper assessment about whether or not he poses a risk to the child. Unfortunately, there is a lacuna in the evidence as to the child’s circumstances in the mother’s household, due to the mother’s failure to call Mr Q or to arrange for his attendance at the interviews for the family report.
The father
The father was in the witness box for many hours. He was a poor witness. He had to be warned not to argue with Counsel, and to listen and answer the questions asked and not make speeches.
I adopt, as entirely accurate, the assessment of the expert that the father has had a very limited education, that he has difficulty with literacy and numeracy, and that he is socially, educationally and digitally disadvantaged. He wagged school and left early, and regrets this[41]. He has lived in a remote rural area most of his life. He sees things in black and white, and often accepts things at face value. His receptive ability is limited, and especially so when he becomes upset or emotional, such as when discussing the child. He becomes frustrated, which leads to disagreements and misunderstandings. At times he gave evidence that was self – serving and he advocated his own case.
[41] Father’s affidavit paragraph 194
The father readily admitted that when he gets upset he sometimes raises the volume of his voice. He said, during cross examination by Learned Counsel for the ICL, that he hadn’t realised until recently that if he raised his voice other people may perceive him as angry, and he said that he is learning how anger can come across as aggression. He agreed that if he had placed his hands around the mother’s throat, as she alleges he did, that “definitely would be family violence”. He has consistently denied ever putting his hands on or around the mother’s throat.
The father readily admitted that, after the mother left X in his care between October 2019 and 14 January 2020, although he didn’t recall saying to the mother “[X] is upset because you’ve abandoned her”, he probably did say that. He agreed that he was very stressed and worried about the mother and X during this period, when the mother was coming and going from the home. I accept the father’s evidence that he was bewildered and confused when the mother left X with him for three months, when she was a baby.
The father admitted wholeheartedly that he retained the child, and kept her from the mother, in early 2022 due to nappy rash, and that he knew that the interim orders made on 29 November 2021 required him to return the child to the mother. He said that the only reason he returned the child to the mother was that the orders were in place.
When cross examined about his behaviour at the contact centre on 30 July 2021, when he argued with the contact supervisor in front of the child[42], he did readily admitted that he had been required to learn the rules at FSS, and that he was not perfect and had made mistakes.
[42] Exhibit H
The expert said that the father’s conduct in certain settings, such as at the contact centre, reflects a man who is desperate to have a relationship with his daughter, and who feels himself to be under siege and having to defend himself against the accusations and perceptions of other people. Having heard the whole of the evidence, I accept the expert’s assessment of the father is entirely accurate.
I accept the father’s evidence that he found the relationship with the mother complicated, hard and confusing. Overall, including for reasons discussed later, I formed the impression that the father was an honest witness, even though a poor witness in some respects, and a humble, simple man.
The paternal grandmother Ms K
The paternal grandmother gave evidence in the father’s case. She was cross examined by Learned Counsel for the Independent Children’s Lawyer, but was not required for cross examination by Solicitor – Advocate for the mother.
The paternal grandmother was born in 1950. At hearing she was 72 years old. She has been diagnosed with a medical condition, but deposes that she is very active and can do all day to day activities. She lives with her partner in Town J, near the home of the father.
Ms K assisted the mother with the care of the children, including looking after the children at her home once or twice each week, including overnight, and at the parents’ home[43].
[43] Affidavit of Ms K filed 8 November 2022 (“K”) at paragraph 14-15
Ms K recalls hearing the father and the mother arguing with each other, including the mother yelling at the father.[44]
[44]K paragraph 18
Ms K has helped the father look after the child during the periods when the child has lived with him. She deposes that “[Mr Papworth] did most of it himself I thought he was a very good father. I helped with sometimes feeding, bathing and looking after her.”[45]
[45] K paragraph 25
Ms K says that the mother often rang her, after separation, and that between them they were able to arrange for the child to spend time with the father. She says that the child has a room set up at her home and that she and the child are very close, and that the child is very special to her.
Ms K says that she has held the following concerns for the child in the care of the mother:
(a)The child’s clothes dirty, worn out and not appropriate for the climate;
(b)She has seen bruising on the child. Bruising of the child is noted in the referral to X-Ray in early 2021;
(c)She saw that the child’s eye was turning in. The mother agrees she took the child to an optometrist in mid-2021 and that the child needed a strong optometry prescription[46]; and
(d)She has seen the child’s bottom and privates swollen and sore. The father and grandmother took the child to the doctor and commenced to apply a cream which was recommended, and the child’s condition cleared. There is no doubt that the child had dermatitis and nappy rash in early 2021.
[46] Mother’s affidavit paragraph 218
The paternal grandmother, like the father, displayed limited insight into the impact on the child of commenting on the child’s presentation in front of the child, and commenting about the child’s capacity to do things, such as counting. The paternal grandmother did agree that emotional harm may be caused to the child if she hears the father and the grandmother criticising the mother’s care of her.
The Court child Expert Ms S (“the expert”)
The expert prepared a Family Report dated 1 February 2022 (“the expert report”) and was cross examined at the hearing. She interviewed and observed the parents and the child, and read and evaluated relevant documents. I have no difficulty in accepting that Ms S is an experienced and skilled court child expert. She has many years of clinical experience and, when asked, said that she has written more than 800 family reports. The expert confirmed in cross examination that she did use formal family violence risk assessment tools when evaluating risk in the present case.
The expert recorded;
“It is apparent that one of the parties in this matter appears to be mendacious about the facts of this matter…This could prevent [X] having a meaningful relationship with the father which is concerning”[47]
[47] Expert Report paragraph 66
The expert thought that the motive for such mendacity was “to gain ascendancy in the matter.”[48] She formed a view that the mother:
“…appeared adept at providing information that she thought should be said and this is not uncommon with parents who have experienced considerable childhood and adolescent trauma”.
[48] Ibid paragraph 85
In the course of robust cross examination by the Solicitor-Advocate for the mother, and Counsel for the ICL, the expert confirmed that she holds a view that the mother has done various things to gain ascendancy in this matter. Her view is informed by the many inconsistencies during the mother’s interview,[49] including that the mother was oblique when asked about alcohol and illicit substances[50], and particularly oblique when asked questions relating to her parenting capacity arising from material produced under subpoena,[51] the mother maintaining that she had never been violent, and did not have a history of being violent, which appeared inconsistent with other material provided to the court,[52] the mother minimising any previous interventions she had with DCJ,[53] the mother’s failure to ensure that Z’s father, Mr Q, was available to be interviewed and observed, in circumstances where the expert had made it clear to the mother that she wanted to interview and observe Mr Q with X, and the fact that, according to both parents[54], the mother was prepared to leave X, as an infant, with the father for an extended period of time.
[49] Ibid paragraph 47
[50] Ibid paragraph 28
[51] Ibid paragraph 47
[52] Ibid paragraph 39
[53] Ibid paragraph 44
[54] Ibid paragraph 10
During cross examination the expert confirmed that:
(a)The mother has a very traumatic family background, she is street wise and she has used various strategies to gain ascendency over the father in this case;
(b)The expert found it difficult to identify which of the parents had held the balance of power in their relationship;
(c)The mother has not always been the victim in the family violence between herself and the father. The father has been the victim in some of the situations;
(d)The father has difficulty reading and writing, and has had a limited education. He has spent most of his life in a small village, and is from a socially disadvantaged background. He does not have a good understanding of interpersonal relationships. He says what he thinks and is not measured in his approach. He is well intentioned but not always able to regulate his responses; and
(e)If the father thought he was causing harm to the child by his comments to her during supervised time, then he would refrain from making such comments. He has limited insight. There are issues which he needs to address, and he wants to change.
Having read and heard the whole of the evidence in this case, including seeing and hearing the parents and Ms K, reading the affidavits and the exhibits, and hearing the final submissions, I regard the evidence of the expert to be very reliable, and I have given it substantial weight in determining what parenting orders are in the best interests of the child in this case.
Consideration of the relevant matters
The outcome of this parenting dispute depends largely on weighing and balancing the evidence which relates to the two primary considerations.
S. 60CC (2) (a) Benefit to the child of having a meaningful relationship with both of the child’s parents
There is clearly benefit to the child of having a meaningful relationship with the mother, who has been the child’s primary caregiver for much of the child’s life, particularly in the period since August 2020. The father reported that he thought the mother was “generally a good mother”[55] and that she became unsettled after the birth of X and was “always coming and going”. Under cross examination by Counsel for the ICL the father was asked to nominate what he considers to be the good qualities of the mother and without hesitation he said “She dresses them properly, keeps them clean, feeds them.”
[55] Expert report paragraph 55
The father reported that the mother had different priorities to him, noting that she is younger and wanted to socialise and have a good time, which the father says he accepted but found difficult.[56]
[56] Expert Report paragraph 53
I have no doubt that X has a meaningful relationship with the mother and that the child benefits from her relationship with the mother. It is not in dispute that the child will continue to live with the mother and will continue to have the benefit of her relationship with the mother.
The mother’s position is that the child should spend only supervised time with the father. The mother reported to the expert that she
“…agreed that she did not think that …[the father]…would harm [X], but did not think that he should have unsupervised visits, because of the tension between them and the issues in this matter.”[57]
[57] Ibid paragraph 45
Prior to the final separation, when the mother left the relationship between October 2019 and mid-January 2020, she left X with the father because she did not think that X would be at risk with him.[58]
[58] Expert Report paragraph 40
On 16 December 2021, the expert observed that the child appeared to be very pleased to see the father and that the child
“…appeared to really enjoy playing with him. [Mr Papworth] was child focussed and concentrated on [X]…he supported her with her play and spoke with her in a quiet and calm manner. [X] responded really well to this…[Mr Papworth] was observed to show a strong level of parental involvement and sensitivity to [X]. He was responsive to her needs and demonstrated a capacity for a level of parental reflective functioning…was able to actively engage and sustain interaction and play with [X]. [X]was particularly distressed when leaving her father and protested at leaving him. She ran back several times and started to sob. At no time did she show any fear of her father…”[59].
[59] Expert report paragraph 81
I accept the evaluation of the expert that the father is warm and positive in his interactions with X, and that he is attuned to her needs.[60] I accept the father’s evidence that he wants to ensure that the child has what she needs materially, and has a good education. He wants her to attend pre-school, and to know all her family.
[60] Expert Report paragraph 93.
The mother conceded, under cross examination, that the reports from FSS demonstrate that X is always thrilled to see the father, and is observed to run to him with her arms outstretched, including as recently as at the start of supervised time on 26 August 2022[61].
[61] Exhibit M
The child’s attachment to both parents was apparent to the expert, and it was noted that the child appears to have a warm and positive attachment to the father despite the disruption to their relationship.
I find that the child has important relationships with both of the parents. I consider that there are considerable benefits to the child if she has the opportunity to have a meaningful relationship with both parents. I accept and place weight on the evidence of the expert that the child has a strong connection with the father and that she will benefit from spending time with him.
S.60CC (2) (b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The key issue, which takes precedence over the primary consideration discussed above, is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The mother agrees that the father has never yelled at, or physically harmed, X.
The mother and the Independent Children’s Lawyer submit that the child is at risk of harm in the care of the father because he may neglect her emotional needs, or expose her to family violence due to his anger and emotional dysregulation. The mother, and the Independent Children’s Lawyer, contended that the risks that the father poses can be ameliorated only by ongoing supervision of the child’s time with the father.
The father has consistently denied that he was physically violent towards the mother, or physically abusive in any way during their relationship[62]. He alleges that the mother reacts violently when she is angry. He says that in late 2019, in the presence of X and Y, the mother threatened to stab him, called him a cunt, scratched his face causing bleeding, and scratched his arm.[63] As noted previously, the mother admitted in her affidavit, but not when she spoke to the expert, that she physically attacked the father around that time.
[62] Father’s affidavit paragraph 131; Expert report paragraph 25
[63] Ibid paragraph 66-68 and Annexure A
The father admits that he and the mother yelled at each other, and he admits that he has called the mother a “slut” during arguments, but never in public, and says that the parents often swore at each other, and called each other names. He says that the mother yelled at Y, and that he and Y were very close and that Y loved doing things with him.
To assess the veracity of the mother’s allegations, and the nature and extent of family violence which occurred during the parents’ relationship, it is necessary for the court to carefully traverse and consider the evidence.
The mother says that when she was about 3 months pregnant with X[64] she “started to experience and witness the father’s anger and controlling behaviours”. She says that the father has subjected her to family violence in the presence of the child, thereby exposing the child to family violence.
[64] Around August/September 2018
The mother says that in 2018, the father “threatened to hit me for the first time after I accidently hit the shed door with my car”. She recalls the father raising his fist and saying words to the effect “I’ll shoot you in the head.”[65] She recalls the father throwing household ornaments, a hair brush, cans or anything in his reach and saying “you’re a bad mother, you don’t deserve your kids” and calling her “worthless” and “useless”.[66] She says that when she was pregnant the father expected the house to be spotless and that he would lose his temper and start yelling that the children or the mother had made a mess or had things lying around. She remembers on one occasion him saying “clean this shit up or I’ll throw it in the bin”. The father admitted that he may have called the mother “useless” but said he did not call her “worthless”.
[65] Mother’s affidavit [27]
[66] Ibid [29]
When she was interviewed by the expert the mother did not identify a concern about the father abusing alcohol. She alleged that he was a long term user of cannabis.[104]
[104] Expert Repot paragraph 28
When he was interviewed by the expert the father stated that he does not drink, and that he did not currently use illicit drugs, and he acknowledged past cannabis use.
During cross examination by Solicitor Advocate for the mother the father adamantly denied that he used alcohol problematically at any time during the parents’ relationship or since. He said that he hasn’t drunk alcohol since his early twenties. He was taken to an entry recorded in the Complete Record produced by Town AA Medical Centre as at late 2022 where under the heading “Social History” it is recorded Alcohol: 7 drinks/day 7 days per week.[105] The father said that the entry is false.
[105] Exhibit B
The father’s complete medical record as at late 2022 from Town AA Medical Centre was tendered in the mother’s case.[106] Apart from the note discussed above, there is no other evidence, either in the father’s medical records, or in any other material produced to the court which suggests that the father has a problem with alcohol.
[106] Exhibit B
I found the father’s denial of alcohol use credible, and I am not satisfied that the child is at risk of harm in his household from exposure to excessive alcohol abuse.
Cannabis and prescription medication
The father had a car accident in 2005, and injured himself. He has been prescribed medication since 2006 for pain relief.
On 10 August 2020, after the court had made orders on 3 August 2020, including that the father undergo HFT the father presented to his doctor in tears, and reported that he is going to lose his child. He asked the doctor to give him a letter saying that “he is smoking weed to relieve his […] pain, muscle spasms and anxiety”. The doctor noted that cannabis is not a prescribed medication, and is illegal to take, and that the father is taking the medication illegally, for his symptoms. The doctor notes the father has chronic anxiety, depression, and chronic pain.
On 25 August 2020, as required by the court order made on 3 August 2020, the father provided a sample of up to 3.9cm of hair for testing, which produced a positive result for an illicit substance.[107]
[107] Ibid Annexure C-8
On 7 September 2020 the father returned to his doctor for a mental health consultation, cannabis dependency and chronic pain. He reported that cannabis helps him to stay calm, that he feels like a different person, and that it motivates him. He reported that he has used cannabis for the past ten years. The doctor “suggested medication – refused feels cannabis helps him better”. The father was “booked for MHCP[108] - this Friday (needs anger management – as per court)” and “ref done to drugs and alcohol.”
[108] Mental Health Care Plan
The father said under cross examination that he was told by his solicitor to give up smoking cannabis and that he did so about two years ago.[109] On 12 May 2021, as required by the order made by the court on 3 May 2021, the father provided a 0-3.9 cm sample of hair for HFT which was negative for drugs tested[110]. On 17 May 2022, as required by orders of the court, the father provided a 0- 2.7 cm sample of hair for testing which was found negative to the drugs tested.[111]
[109] Consistent with Father’s affidavit paragraph 130
[110] Ibid Annexure C-26
[111] Ibid Annexure C-40
The father demonstrated in late 2020, when he ceased using cannabis upon the advice of his solicitor, and when he provided the negative HFT results, that he is capable of prioritising the child’s needs and not using cannabis. I consider that any risk of harm to the child which could arise from the father using cannabis will be satisfactorily ameliorated by the court making an order which restrains the father from ingesting any medication or illicit drug when the child is in his care, and for the period of 12 hours prior to the child coming into his care, unless the medication is prescribed for him by a registered medical practitioner, and used by him strictly in accordance with the prescription of the registered medical practitioner.
On 16 November 2021 the father attended his doctor asking for pain relief medication. It is recorded
“reduced the dose from 200mg to 150mg last time, has experienced some pains […] and the plan was to reduce the dose to 100mg bd today to slowly wean off the dose.”
On 27 January 2022 Dr BB recorded that the father attended the surgery
“asking for [pain relief medication]– taken the last [medication] this am – the dose was reduced to 100mg bd, says the pain is back again, started smoking make him sleep last night- sleeping not great, smoking cannabis every second to third day”.
Reason for visit is noted to be “Aggressive behaviour – Requesting [a] script”. The notes record what appears to have been a lengthy consultation, and further that
“[Mr Papworth] was angry for not having the [Pain relief medication] 200mg script again – threw away the radiology referral for scans – raised his voice saying that he will take [illicit drugs] to manage his pain and sue the medical centre – did not wait until I did the script for [pain relief medication] 100mg – threw away the CT referral as well – left with anger – No future appointments with me again due to his aggressive behaviour.”
The father was cross examined about this episode and eventually agreed that he might have raised his voice. He demonstrated little insight into the impact of his conduct on others. He agreed that he was upset, and he said he was in pain, and he conceded that his conduct was disrespectful to the female doctor. He did not cavil with the doctor’s perception that he was angry. He sought to justify his behaviour, saying that he was there for help, in pain, his medication had been cut down, he was going through the family law proceedings, and he was getting no help. I reject the father’s evidence that he was justified in behaving in the manner recorded by the doctor on that occasion. The father’s conduct on that occasion was entirely unjustified, however I take into account that it is a single incident of poor behaviour in the context of many attendances at the same surgery over a considerable period of time. The Town AA medical notes record that the father has returned to the surgery on average fortnightly since the above incident and has had consultations with a variety of male and female doctors, other than Dr BB. There are no other reports of the father being aggressive at the doctors’ surgery.
During cross examination, the expert confirmed that she had read the father’s medical records, including in relation to his use of pain medication. She was firmly of the view that the father’s long term use of pain medication is not a risk to the child. She said that his medication is used for pain relief, and is not a drug of addiction, and she noted that the father does have a serious condition and that he needs to have some pain relief. She suggested that the father attend upon a pain clinic and have a reassessment of his pain management. I accept the evidence of the expert and am satisfied that the child is not at risk of harm due to the father’s use of prescription pain relief. The father is urged to heed the expert’s suggestion and undergo reassessment of how he can manage his chronic pain.
It was suggested to the father that he has trouble recognising his own anger. He replied “Maybe…I am not perfect” which was an honest answer, displaying some insight. It was suggested that the father has difficulty recognising his own aggression and he said “No, I know when to pull up. I am 49 years old and I am not a violent man, just a confused man.”
Clearly the father struggles at times to regulate his emotions. There is no doubt that he has yelled at the mother when he has felt situations are getting out of hand, and I accept that sometimes she felt frightened when the father yelled at her. I am not persuaded, having regard to the evidence, that he perpetrated family violence during the parents’ relationship of the nature, and to the extent, that the mother has alleged.
The expert records that the father has a criminal record for various offences since 2014” [112] There is no evidence before the court to suggest that the father has a substantiated history of family violence. I consider that the child is not at risk of harm from being exposed to the father engaging in violent or otherwise criminal conduct in the community.
[112] Expert Report paragraph 71
The court is very cognisant of the magnitude of harm which is done to a child who is exposed to family violence. Having carefully considered all of the evidence the court considers that the risk of the father exposing the child to family violence in the future is slight.
I take into account that, at the date of final hearing, the father had participated in four weekly sessions of a men’s behaviour change program provided by E Counsellors at Town C. The course was expected to run for twenty weeks. The father provided evidence in cross examination about what he had learned as a result of his participation in the four sessions conducted so far up to the date of trial. I consider that the father was learning from his participation in the course, and that the risk to the child of the father exposing her to family violence is further ameliorated by him successfully completing the men’s behaviour change program.
RELEVANT ADDITIONAL CONSIDERATIONS
The child was too young to be interviewed by the court child expert. There is no direct evidence before the court of any view expressed by the child.
The nature of the relationship of the child to each of her parents is gleaned from the observations that the expert recorded of the child’s interactions with each parent[113], and in the notes of the interactions of the child with the father during the supervised time she has spent with him[114]. The court has no doubt that the child has close and important relationships with both her parents.
[113] Expert report paragraphs
[114] Exhibit M
I have no doubt that the child has important sibling relationships in the household of the mother.
The father has enjoyed the support and assistance of the paternal grandmother in caring for the child, and she has helped teach the father how to care for X.[115] The child is very close with the grandmother who she calls “Nan.”[116] The mother agrees that Y and X were fond of the paternal grandmother, and that the paternal grandmother was a good source of support for the mother.[117]
[115] Father’s affidavit paragraph 162-170
[116] Father’s affidavit paragraph 166
[117] Mother’s affidavit paragraph 124
The child is close to the step-grandfather Mr CC, who she calls “Pop”. The child has an aunt, an uncle and several cousins who all live close by the father.
For the reasons which have already been discussed, the court considers that the mother did not make appropriate arrangements to spend time with, or to communicate with, X during the period when X was in the sole care of the father from October 2019 until 14 January 2020. The expert said, and I accept, that the child may have endured some disruption to her attachment relationship with the mother when the mother left her in the care of the father during this period.
The father has taken every opportunity to spend time with X. He has counted the days until he can see her, and has diligently attended at FSS for supervised visits, apart from one period in late 2021 when he briefly cancelled the visits. The father admitted that he has had some difficulty accepting feedback from the supervisors.[118] He said, and I accept, that he has found it “torture” at times dealing with the contact supervisors, and he has had to learn to accept criticism and advice.
[118] Father’s affidavit paragraph 185
The records of the child’s interactions with the father at FSS[119] demonstrate that he generally has no difficulty in communicating with X or having a relationship with her. There are reported incidents of the father making some inappropriate comments in the presence of the child, and having some difficulties accepting the direction of staff members, which the father has admitted he did struggle with, however in the context of supervised visits having occurred over a period of about fifteen months, the concerns raised are not significant enough to warrant the court making orders which would have the effect of depriving the child of the opportunity to have a meaningful relationship with the father.
[119] Exhibit M
The expert observed the father to be very receptive to the child’s needs. He displayed no anger or aggression, and he was empathic and appropriate in his responses to the child. He was not overbearing and responded well to her play. The child displayed no fear of the father at all, and there is no evidence to suggest that she has been traumatised by him. The expert assesses that the father is capable of parenting the child.
In early 2021 the mother delivered the child to the paternal grandmother to spend time with the father. The father retained the child in his care for two days. The mother admits that the child had dermatitis and bad nappy rash[120]. The father says that he had been noticing some large and very dark bruises on the child’s back, ribs and arms. He noticed that the child had a lazy eye[121]. Around 2.00pm the paternal grandmother called the mother and said that they were taking the child to the doctor. The child had already seen the doctor at 11.00am that day and was due to be seen again at 2.00pm.[122]. The father says that he was given some cream for the child’s skin, and a referral for her eyes, and that when he returned home and changed the child he noticed her nappy area was inflamed, swollen and pimples, and that he and his mother decided to take the child back to the doctors.[123]
[120] Ibid paragraph 165
[121] Father’s affidavit paragraph 99-100
[122] Mother’s affidavit paragraph 169
[123] Father’s affidavit paragraph 101
The notes produced by Town AA Medical Centre[124] record that the father was seen in early 2021, by Dr DD, and record “with only daughter 2yo [X] and his mother [Ms K]. See [X’s] record Concerns for her wellbeing. Stressed, tearful. Empathetic listening and action taken.” Dr DD referred the child to the Consultant Paediatrician and the Registrar Paediatrician at City F Hospital[125]. The child was not returned to the mother, and the mother requested Town C police to conduct a welfare check on the child.[126]
[124] Exhibit B
[125] Father’s affidavit Annexure G
[126] Ibid paragraph 176
The father arranged for the child to attend an appointment with a Paediatrician at City F Hospital two days later at 1.00 pm. The mother says she attended with her counsellor at the hospital, but she did not attend the child’s appointment, as the father and the paternal grandmother were in attendance. The mother was updated throughout the day and was able to provide the child’s history to the Paediatrician.[127] The child was returned to the mother’s care at the hospital around 5.00 pm that day.
[127] Ibid paragraph 188
The court accepts that father and the paternal grandmother were shocked to discover the rash and the marks on the child, and that they acted protectively in taking her to be examined by a doctor, and a Paediatrician.[128] The clinical history provided in early 2021 included bruises on the child’s back and a bruise on her right forearm. The paternal grandmother appropriately informed the mother of the doctor’s appointments, in particular the appointment on the same day, following which the child was returned to the mother. The court draws no adverse inference against the father for retaining the child two days earlier, noting that the child was retained for no longer than was necessary for her medical needs to be appropriately managed.
[128] Ibid Annexure C-19
Three days later the mother took the child to the City F Hospital to have a full skeletal X-ray, which had been arranged at the time of the Paediatric assessment. The X-ray revealed no concerns.[129]
[129] Ibid Annexure C-20
The father is recorded to have checked the child for dry skin during supervised visits with FSS. The court accepts that the father’s motivation in checking the child was his genuine concern. He worries about the child. She has sensitive skin and suffers from eczema and dermatitis, which causes her to experience dry skin and itching. The child requires cream to be applied to her skin. On occasions the mother has not found time to do this. Taking into account that the mother has three children in her care, the court is not critical of her. Nor is the court critical of the father. X is his only child, and she is very precious to him. He has felt upset when the child has presented to the centre without the cream applied. He has been critical of the mother in front of the child, and he displayed a limited understanding of why it is not appropriate to criticise the mother’s care of the child in front of the child.
I accept that the father has been concerned for the child when she has presented to the centre wearing shoes too big for her. He said she was running and falling. The father must, however, learn to refrain from expressing, in front of the child, any concern which may caste the mother in a negative light. He has the right and the responsibility to express any concern to appropriate persons, but only when the child is not present or within earshot. The child must not be exposed to, or drawn into, adult issues, because exposure to adult issues and to parental conflict is a well known to cause harm to the child.
The father did accept, in cross examination by Counsel for the ICL, that it is not healthy for the child to be exposed to one parent criticising the other parent, but he was unable to fully appreciate that this is precisely what he has done at on some occasions at the contact centre. I consider that the father requires assistance to fully appreciate that it is damaging to the child and to her relationships with both parents, if either parent is critical of the other parent in the child’s presence. Criticism of the mother in front of the child includes the father or the paternal grandmother making negative remarks about the child’s presentation and appearance. The father will need to learn skilful means to avoid criticising the mother in the child’s presence.
If the father can maintain focus on the mother’s strengths, which he was able to articulate when he spoke to the expert, and during cross examination, the child will benefit. The father knows that the child loves the mother. Like the father, the mother is not perfect, and she is doing her best. The father will be ordered to complete a parenting course to assist him to gain further parenting skills to help him avoid making the mistake of criticising the child’s presentation, or the mother’s care of her, in front of the child, in the future. Both parents will be restrained from making negative comments about the other in the presence of the child.
The mother agrees that in early 2021 she asked the police to conduct a welfare check on the child. The police records of the welfare check are in evidence[130]. Police observed the child with the father at the home of the paternal grandmother. The entry relevantly records that:
“Police observed the child to be very happy and interacting well with [PAPWORTH] and his parents. The house was very cleaned and well maintained and the child was dressed appropriately. At the time of attending the child was eating an appropriate breakfast. As [PAPWORTH] followed police out to their vehicle, the child became highly distressed and only calmed down once he picked her up and gave her a cuddle. It is clear that there is a strong bond between the pair…”
[130] Exhibit P
The observations made by police of the child’s distress at the prospect of being separated from the father are entirely consistent with observations of the child’s distress when separating from the father in late 2021[131], and similar observations made by the supervisors at the City F Family Support Service in July and August 2022[132].
[131] Expert Report paragraph 81
[132] Exhibit M
During cross examination the expert confirmed that, during what she considered was a long observation of the father with the child, the father was so appropriate with the child and the child was thrilled to be with the father. In her opinion the father really values the child and his relationship with her. The expert thought that the risk factors in the father’s household could be ameliorated by him:
(a)Completing the men’s behaviour change program in which he was enrolled and had commenced at the date of hearing[133];
(b)Completing a D Parenting Program parenting program at FSS;
(c)Engaging with an intensive family support program; and
(d)Implementing a clear pathway for the child’s time with the father, with changeovers perhaps at the contact centre.
[133] Father’s affidavit paragraph 155
The court is in no doubt that the child will benefit from being able to further develop her close and loving relationship with the father, and her relationships with the paternal grandmother and other paternal family members. I accept the evidence of the family consultant that there is a close relationship between the child and the father, and that the father is attuned to the child’s needs, and that he does have the capacity to assist the child to manage any emotions she might feel when spending time with him, separated from the mother and her siblings.
The child will be assisted if the father is able to refrain from commenting about her presentation or her appearance, and from making any negative comment about the mother’s care of the child in the child’s presence. The court will make an order which restrains the father from making any such comments to or in the presence of the child. I am satisfied that the father is capable of prioritising the child’s needs, and that he values the child, and his relationship with her and having seen and heard the father give his evidence, I am satisfied that he will comply with orders which the court will make in the best interests of the child, so that her relationship with him is not disrupted in the future.
The child will continue to live with the mother, and she will grow up in the same household as at least two of her maternal half siblings. The mother knows that the child loves the father, and that she enjoys spending time with him. The mother told the expert that she does not think that the father or the paternal grandmother or members of the paternal family will harm the child[134]. To her credit, the mother has been willing and able to facilitate the time for the child with the father at FSS.
[134] Expert report paragraph 45
The mother was granted leave to give some short evidence in chief about her contact with the Department of Communities and Justice (“DCJ”) during a home visit around two years ago. She confirmed that DCJ suggested that she engage with the B Program. The mother said that she is “happy to try it”. She was not sure whether a referral had been made, and had heard nothing. The expert was of the view that the risks in the mother’s household could be ameliorated by the mother engaging with an intensive family support program.
The parent’s households are currently about 100km apart with a driving time of around 1 hour and 30 minutes. Due to the distance between the parental homes, and the impact of the current poor co-parenting relationship, and the mother’s anxiety about coming into contact with the father, there is a need to consider the practical difficulty and expense involved in the child being able to maintain her relationships with both parents. If the child is to spend unsupervised time with the father then it is necessary to consider how to manage the changeovers so that they are as comfortable as reasonably practicable, for the child and the parents.
To date the father has been solely responsible to pay the fees for supervision of the child’s time with him at FSS. Although the mother sought final orders for the child’s time with the father to be supervised by FSS in the long term, she put on no evidence about the availability of the service to provide long term supervision of the child’s time with the father. The expert recommended that supervised changeover occur at FSS, as the parents already have a relationship with that service, and the child is familiar with the service, having spent supervised time with the father there since at least May 2021. There is no evidence about the availability of FSS to supervise changeovers, or the fees for supervision of changeovers. The ICL, in her alternative position, proposed that if the father spends unsupervised time with the child then changeovers be supervised by City F EE Contact Service, but again there is no evidence as to availability of that service to supervise changeovers, or any information about the fees for service.
If the court determines that the child will move to spending unsupervised time with the father, then appropriate arrangements for changeover must be made, with the primary objective being to avoid the need for the parents to come into contact with each other.
The mother’s evidence at the hearing is that the child was attending preschool one day each week and that the child is booked in to attend pre-school 3 days per week in 2023. The need for the parents to come into contact with one another at changeovers would be removed if changeovers, wherever possible, take place at the child’s pre-school or school. When changeovers occur on days that are not pre-school or school days, then an alternative to supervision of changeover by a professional service, given the lack of evidence, is for a suitable third party to assist.
The paternal grandmother was a nominated supervisor of the child’s time with the father from August 2020 until 3 May 2021. That supervision ceased due to the concern that she had left the child in the father’s sole care unsupervised in early 2021. It was reasonable for the mother to have been concerned that Ms K had breached her undertaking to the court, however the unchallenged evidence of the paternal grandmother is that she was present with child and the father on the relevant occasion, and was not in breach of her undertaking to supervise. Regrettably, the paternal grandmother chose not to tell the mother the truth about the child’s whereabouts in early 2021, and in doing so she disrespected the mother and breached the trust that the mother had reposed in her.
The mother agrees that she had a reasonable relationship with the paternal grandmother. She said that after the father retained X in 2021 “[Ms K] stopped calling and stopped sending birthday or Christmas cards or making weekly calls.” The only concerns the mother said she has about the paternal grandmother supervising the time between X and the father is the paternal grandmother’s age and health concerns, and she thinks that the father doesn’t respect his mother and manipulates her. She said that she believes that the paternal doesn’t have control or influence over Mr Papworth.[135]
[135] Mother’s Affidavit filed 14 October 2022 paragraph 258
Although there were some limitations to her understanding of child development evident in the paternal grandmother’s evidence when she was cross examined by Counsel for the ICL, Ms K is quite clearly a devoted grandparent to X, and was a source of support and assistance for both parents during their relationship. She loves the child, and is very protective of her. On balance, I consider that the paternal grandmother would be an appropriate person to assist the parents in facilitating changeover for the child, and her presence at changeover could avoid the need for the parents to come into contact with one another. The expert noted that the father’s sister may also be able to assist him.
The court considers that, provided the father nominates a responsible adult, who is known to the child, to attend at changeover with the father and facilitate the child’s transfer between the parents, then there is no reason why the changeover cannot occur at a public location such as the McDonalds Family Restaurant at City F. In my view changeovers ought to occur in City F. In coming to this conclusion I take into account the following matters. The child attends pre-school, and will attend likely attend school, in City F. The mother has the primary care of three children in her household, and she works part-time. The father does not work, and has no children in his primary care. There is no evidence before the court of any appropriate venue along FF Street between City F and Town C where changeover could safely and conveniently occur. The balance of convenience is that the father be responsible for transporting the child between City F and his home at Town J and return, if the child is to spend unsupervised time with him.
The mother agrees that she has a diagnosis of anxiety. She said that she suffers from anxiety and panic attacks and that her trigger is “Papworth”. She blamed the father for her grinding her teeth and said that 60% of her teeth are blunt from grinding and that “I didn’t realise I had been grinding my teeth until I got into a relationship with [Mr Papworth]”. It appears that the mother’s teeth grinding pre-dates the relationship and that the father did not cause the condition. The mother said that she avoids certain streets in City F and Town C in case she sees the father. She consults her psychologist once every couple of months, sometimes every week, depending on her needs. When her “triggers” were explored further, the mother said “more so the kids, yelling and screaming in front of the kids, smacking, disrespecting, punching the glass door, throwing things, he couldn’t control his anger in front of the kids”. This is the first time that the mother has asserted or implied that the father has engaged in “smacking” and I consider that it is an example of the mother’s preparedness to exaggerate in order to bolster her case.
The mother said that she is in the process of seeking assistance through City F Family Support Service. She was not receiving support at the date of hearing, other than some counselling, and she has done some parenting courses. The mother said that she does not think she needs any help, but that the counsellors are great and she is coping well. The mother said she had been referred to B Program by DCJ but had forgotten all about it until recently because she hadn’t heard back from them. She said that if the court thought it would helpful for her to have some support from an organisation such as B Program, then she is prepared to engage. There is no cogent evidence to support a finding that the mother’s parenting capacity will be seriously disrupted if she has to facilitate unsupervised time for X with her father. The mother is a resourceful and energetic young woman, and I am satisfied that she is robust enough to cope adequately with an order which provides for X to spend consistent and regular time with the father. However, noting her trauma history, her lack of family support, and the previous referral by DCJ, I consider that the mother’s parenting will be likely be enhanced if she obtains support of B Program of a similar parenting support service.
The paternal grandmother has had plenty of opportunity to observe the father’s parenting capacity and she regards the father as a capable parent, who is devoted to the child.
The father is capable of ensuring the child is able to access appropriate activities whilst she is in his care. I am satisfied that he cares very deeply for her welfare and is prepared to do the best he can to assist her to grow and develop. I have come to the conclusion provided the father finishes the anger management course in which he is currently enrolled and provided he undertakes the “D Parenting Program” the child should start to spend unsupervised time with him.
I do consider the father is capable of learning. He gave some fairly insightful answers during cross examination by Learned Counsel for the Independent Children’s Lawyer about what he has learned about family violence through his one on one counselling with Mr GG in the men’s behaviour change program. The father has already gained a deeper understanding of conduct which is family violence, and his understanding will grow as he moves through the course. I accept that the father was genuine when he said that counselling “…woke me up. I am doing the best I can to improve myself.”
On balance, I am satisfied that the father has the capacity to provide for the child’s needs including her emotional needs. While he may struggle to provide for her intellectual needs himself, he values education and he will ensure that the child attends school whenever she is spending time with him.
The child is an Aboriginal child. Both parents identify as proud Aboriginal people from the G Country nation. It is important that they both help the child to enjoy her culture, not only with family, but also with other people who share the culture. The mother says that there are culturally appropriate programs available at the local school which X will be able to engage with. The father has close friends who are educated in aboriginal heritage and he would like X to know and understand her culture. The father says that he has a lot to learn about the culture himself.
The father is a devoted parent. X is his only child. He is very fond of her, and deeply committed to her. He has adopted an educative approach, when spending time with the child at the contact centre. He has been motivated by a desire to help the child to learn and grow up “smart”, rather than a desire to criticise the mother’s care, and at times his approach has been over zealous, and if not reigned in risks making the child feel that she is not doing well enough in his eyes. The records FSS demonstrate that the father has been able to take on board suggestions made by the caseworkers to improve his interactions with X, and that the supervisors have told him he is doing better as a result.
There is absolutely no excuse for family violence. It is unacceptable that the parents resorted to yelling and verbal abuse while the child was present in their household and they were arguing. Certainly the mother engaged in physical conflict.
Clearly it would assist the child if each of the parents takes personal responsibility to make sure that she is not exposed to any family violence in the future. The court will restrain the parents from allowing the child to be exposed to family violence and will annexe to the final parenting orders a copy of section 4AB of the Act, which sets some of the types of behaviour which may be considered to be family violence.
It is common ground that the final ADVO, made for six months, expired in late 2022 and has not been extended. The mother confirmed that she had not made an application to extend the ADVO, that there had been no breaches of the ADVO. She confirmed that the child has never been nominated as a person in need of protection in any of the ADVO’s made against the father for the protection of the mother.
ALLOCATION OF PARENTAL RESPONSIBILITY FOR THE CHILD
Section 61DA of the Act provides for a presumption of equal shared parental responsibility when a parenting order is made, save that the presumption does not apply when there are reasonable grounds to believe there has been abuse of a child or family violence. The presumption may also be rebutted if there is evidence to satisfy the Court that it would not be in the best interests of the child for the child’s parents to have equally shared parental responsibility for the child.
The relevance of the presumption of equal shared parental responsibility, when it does apply or is found to apply, is that the Court is obliged to consider making an order, if it is consistent with the best interests of the child and reasonably practicable for the child, to spend equal time with each of the parents. If equal time is not in the best interests of the child or reasonably practicable, the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable, for the child to spend substantial and significant time with each of the parents.[136]
[136] See subsection 65DAA of the Act
I have found that each parent has perpetrated family violence and accordingly I am satisfied that the presumption does not apply. However I am nevertheless required to consider whether it is in the best interests of the child for the parents to have equal shared parental responsibility for her.
Since final separation in April 2020 the parties have made no joint decisions together they have not spoken on the phone, and they have not communicated by text or email. The father has had no opportunity to participate in making decisions for X, as the mother has been unwilling, or has not felt safe to communicate with him. The father appears willing to communicate with the mother, but he currently lacks skills to do so. He would rather communicate with her by text message rather than speaking to her.
The mother appears to have made appropriate decisions relating major long term issues for X, including enrolling her in pre-school. I consider that it is better for X if the parents are not required to consult with each other and attempt to reach a joint agreement, as the co-parenting relationship has been poor and any requirement for the parents to consult may place X at the centre of their conflict. As X will live with the mother, it is appropriate that she have sole parental responsibility for the child, given that the court is satisfied that it is not in X’s best interests for the parents to have equal shared parental responsibility for her.
The mother agreed that she could make an attempt to notify the father if there was an important decision to be made about the child, and she proposes to inform him of such decisions.
CONCLUSION
The allegations of family violence are highly relevant and significant matters which the court has carefully considered. The parents have provided very divergent accounts of their relationship. The father has consistently maintained his denial in respect of the mother’s allegations that he perpetrated physical violence.
Ultimately the court has found, for the reasons provided herein, that the father’s evidence about the alleged episodes of family violence is more reliable than the evidence of the mother.
The court has balanced the benefit to the child of having a meaningful relationship with both parents, against the identified risks, and overall is satisfied that the child will not be placed at unacceptable risk of harm if she spends unsupervised time with the father, and that it is the best interests of the child that she spends regular and consistent time with the father.
The court is satisfied that the orders which appear at the forefront of these reasons are the orders which are in the best interests of the child.
I certify that the preceding two hundred and eighteen (218) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Carty. Associate:
Dated: 16 June 2023
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