COHEN & GREEN

[2017] FamCA 251

FAMILY COURT OF AUSTRALIA

COHEN & GREEN [2017] FamCA 251

FAMILY LAW – CHILDREN – With whom the child lives – Where the child has secure relationships with both parents – Where the mother was the primary caregiver – Where both parties had an impaired capacity to meet the child’s emotional needs – Where the father is unable to care for the child alone due to work commitments – Where the mother has full-time availability to care for and supervise the child –Where the child has a strong bond with her maternal half-sibling – Where the Family Consultant opined the child should live with the mother if the Court was satisfied of the mother’s ability to protect the child from the risk of harm posed by her ex-partner – Ordered the child live with the mother

FAMILY LAW – CHILDREN – With whom the child lives – Child’s views – Where the views expressed by the child and the force with which she expressed them were an important feature of the evidence – Where the child was observed to repeatedly and plaintively express a wish to live with the mother – Decided the child’s views should be given considerable weight, since she despairs separation from the mother and her maternal half-sibling.

FAMILY LAW – CHILDREN – With whom the child spends time –  Injunction – Where it was alleged the mother’s ex-partner sexually abused the child – Where the evidence of sexual abuse alone might not be sufficient to establish an unacceptable risk of harm but, in aggregation with the evidence of family violence, the mother’s ex-partner poses an unacceptable risk of harm to the child – Ordered the parties are restrained from causing or permitting the child to be or remain in the presence of the mother’s ex-partner and the child’s residence with the mother is conditional upon compliance with that injunction

Family Law Act1975 (Cth), ss 4, 60B, 60CA, 60CC, 60CG, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE

Dundas & Blake [2013] FamCAFC 133
M v M (1988) 166 CLR 69

APPLICANT: Ms Cohen

RESPONDENT: Mr Green

INDEPENDENT CHILDREN’S LAWYER: NLS Law

FILE NUMBER: NCC 2846 of 2015

DATE DELIVERED: 27 April 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 4, 5 & 6 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P Davies

SOLICITOR FOR THE APPLICANT: Aboriginal Legal Service

COUNSEL FOR THE RESPONDENT: Mrs J Kearney

SOLICITOR FOR THE RESPONDENT: Arnold Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr T Bates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: NLS Law

Orders

1. All former parenting orders in respect of the child B, born … 2011, (“the child”) are discharged.

2. The mother and father shall have equal shared parental responsibility for the child.

3. Subject to compliance with Order 9 hereof, the child shall live with the mother.

4. The mother and father shall take all reasonable steps to ensure that the child spends time with the father as follows, or as otherwise agreed:

   (a)On the child’s birthday, between 4.00 pm and 7.00 pm;

   (b)During school terms, each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday, commencing on 5 May 2017 and thereafter on the first Friday of each term;

   (c)During the Autumn, Winter, and Spring school holidays, for the first half of such holidays in every odd numbered year and for the second half of such holidays in every even numbered year; and

   (d)During the Summer school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an odd numbered year and commencing in the second week of the holidays in the years when the holidays commence in an even numbered year.

5. For the purposes of implementation of Order 4 hereof, the school holidays are deemed to commence at 5.00 pm on the last day of school term, the holidays are deemed to end at 5.00 pm on the last day preceding the day upon which the child is due to return to school, and the mid-point is noon on the day halfway between those first and last days.

6. Order 4 hereof is suspended during the following periods:

   (a)From noon on Christmas Eve until noon on Boxing Day each year, during which period the child will spend time with the father from noon on Christmas Day until noon on Boxing Day and with the mother from noon on Christmas Eve until noon on Christmas Day in odd numbered years, with the same arrangements in reverse in even numbered years.

   (b)Between 5.00 pm Saturday and 5.00 pm Sunday on each Mother’s Day and Father’s Day weekends, during which periods the child shall spend time with the mother on the Mother’s Day weekend and with the father on the Father’s Day weekend.

7. For the purposes of implementing Orders 3, 4 and 6 hereof, the parties shall cause the child to be exchanged between them at the Hungry Jacks Restaurant at Suburb C, NSW.

8. Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the child communicates privately by telephone with:

   (a)The father each Tuesday and Thursday at 5.00 pm, when the child is living with the mother, and for that purpose the father shall telephone the child on the telephone number provided to him by the mother and the mother shall ensure that the child is able to receive the father’s calls on that number at that time.

   (b)The mother each Tuesday and Thursday at 5.00 pm, when the child is spending time with the father, and for that purpose the mother shall telephone the child on the telephone number provided to her by the father and the father shall ensure that the child is able to receive the mother’s calls on that number at that time.

9. The parties are restrained from causing or permitting the child to be or remain in the physical presence of Mr D.

10. The parties are restrained from causing or permitting the child to refer to any person other than them by use of the terms “Mum” and “Dad” (or any derivative thereof) respectively.

11. The parties are restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.

12. Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party and shall notify any treating health professionals that the parties have equal shared parental responsibility for the child.

13. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number, and email address.

14. The mother shall forthwith procure, and the parties shall thereafter maintain, a communication book to facilitate communication between them in respect of issues related to the child and each party shall relay important information concerning the child to the other by way of written notification in the communication book, which will travel with the child at change-overs.

15. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

16. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

17. Costs are reserved for 28 days.

18. Any and all other outstanding applications are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2846 of 2015

Ms Cohen

Applicant

And

Mr Green

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction  

1. The applicant mother and respondent father have a six year old daughter and could not agree upon parenting arrangements for her.

2. Although there have been disputes between the parties from time to time, from 2015 they generally employed a parental regime under which the child lived with the mother and spent substantial time with the father. That changed in November 2016, when the father formed the view the child was sexually abused by the mother’s associate (“Mr D”) and he decided to withhold the child from the mother.

3. The parties’ dispute widened at trial, but when they conferred with the Family Consultant in November 2016, the father said he held no concerns about the child’s welfare in the mother’s care until “Mr D [became] involved in a relationship with the mother”.[1] As a consequence, the primary focus of the evidence and submissions at trial was the risk posed to the child by Mr D and the extent to which the mother was capable (or incapable) of protecting the child from that risk.

   [1] Family Report, para 29

4. The countervailing considerations to emerge at trial were the extent to which it would be possible for the child to maintain a meaningful relationship with the mother if she remained living with the father and his partner (“Ms E”) and the prospect of the child suffering emotional harm if deprived of her residence with the mother and her half-sibling (“F”).

Short history

1. The parties met and formed a relationship when they were very young. Both were then only about 16 or 17 years of age. They never cohabited and their relationship ended about two months after the child was born in 2011.

2. The father formed a relationship with Ms E. Their relationship is intact and they have two children, born in 2013 and 2014.

3. The mother later met Mr D and F was born to their relationship in 2013. There was considerable debate about whether that relationship has now ended or, if ended, whether they would reconcile.

4. After the parties ended their relationship in 2011, the child had very little interaction with the father until 2015, though both parties blamed the other for that predicament. The father said the mother thwarted his relationship with the child, but the mother said the father was disinterested in her. The evidence was barely tested but not much now turns on resolution of that dispute because, even if the mother’s version of past events was more correct, there is no doubt about the father’s keen interest in the child now.

5. These proceedings were commenced by the mother in October 2015, shortly after the father forcibly removed and withheld the child from her. Interim parenting orders were made in November 2015 ensuring the child’s return to the mother. The orders directed that the child live with the mother and that she spend time with the father twice weekly for several hours at a time. The orders were consensually adjusted several weeks later to provide for the child to spend incrementally increasing time with the father, culminating in alternate weekends and one evening each week.

6. Those orders operated successfully until November 2016, when the father again withheld the child from the mother in the belief she had been sexually abused by Mr D and was at risk of that abuse continuing. More interim orders were then made in December 2016 reversing the child’s residence. The orders provided for the child to live with the father and to spend supervised time with the mother. The parties were restrained from allowing the child to come into contact with Mr D. Simultaneously, the Federal Circuit Court ordered the proceedings be transferred to this Court for determination, following which the trial was fixed in April 2017.

Proposals

1. The mother abandoned the orders set out within her Initiating Application filed on 30 October 2015. She tendered a minute of the orders she instead proposed.[2] She essentially sought allocation of equal shared parental responsibility for the child to the parties, for the child to live with her, and for the child to spend substantial time with the father. She acceded to an order restraining her from allowing the child to associate with Mr D and, during cross-examination, she said she was willing to submit to an order that made the child’s residence or visits with her conditional upon her compliance with that injunction. Her willingness to do so was confirmed during final submissions.

   [2] Exhibit M3

2. The father abandoned the orders set out within his Response filed on 18 November 2015. He tendered a minute of the orders he instead proposed.[3] In essence, he sought that the child remain living with him and that he have sole parental responsibility for her. He proposed that the child spend substantial time with the mother, but that represented a quite different attitude to the one he expressed to the Family Consultant and in oral evidence. He told the Family Consultant the child should only spend “limited (possibly supervised) time with her mother”[4] and during cross-examination he said the child should only spend time with the mother if she first attended a post-separation parenting course and obtained counselling for domestic violence. In final submissions, the father abandoned his own proposal and instead adopted the Independent Children’s Lawyer’s proposal.

   [3] Exhibit F1

   [4] Family Report, para 16

3. The Independent Children’s Lawyer did not reveal any settled position during the trial and tendered a minute of the orders she proposed just before commencing final submissions.[5] It provided for the father to have sole parental responsibility for the child, for the child to live with the father, and for the child to spend substantial time with the mother, subject to her continuing compliance with the injunction restraining her from allowing the child to have any contact with Mr D.

   [5] Exhibit ICL2

Evidence

1. The mother relied upon her affidavit filed on 24 March 2017.

2. The father relied upon:

   (a)His affidavit filed on 24 March 2017; and

   (b)The affidavit of his partner, Ms E, filed on 4 April 2017, in respect of which no objection was raised to its lateness.

3. Both parties and the Independent Children’s Lawyer relied upon:

   (a)The Memorandum prepared by the Family Consultant, dated 9 November 2015; and

   (b)The Family Report prepared by the Family Consultant, dated 24 November 2016.

Legal principles

1. Orders in respect of children are made under Part VII of the Family Law Act (“the Act”), where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

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

3. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

4. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

5. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Child’s best interests – primary considerations

Section 60CC(2)(a)

1. There could be no doubt about the depth and importance of the child’s relationship with the mother. The father conceded in cross-examination he knows the child loves the mother and wants to spend more time with her.

2. The Family Consultant conferred with the family in late November 2016, several weeks after the child was detained by the father. The child had not seen the mother or F during the intervening period. The Family Consultant saw the child run to the mother for a prolonged hug, after which she clung to the mother and sobbed about not being able to immediately return home with her and F. The child’s distress could not be calmed and so the Family Consultant decided to terminate the observation session.[6] When the father was brought into the room, he could not immediately calm her, but by the combined efforts of the father and Ms E and the presence of the paternal half-siblings, the child’s distress gradually subsided.[7]

   [6] Family Report, paras 14, 105-110

   [7] Family Report, para 110

3. The Family Consultant considered the child had a “close, familiar and comfortable” relationship with the father, Ms E and the paternal half-siblings,[8] but more particularly, her relationship with the father was “meaningful and positive”.[9]

   [8] Family Report, para 110

   [9] Family Report, para 113

4. The Family Consultant said, without contradiction and which I therefore accept as correct, that the mother had “clearly been the primary caregiver”, by reason of which the child developed an unequal and superior attachment relationship with her. She concluded that, absent any risk to the child’s welfare in the mother’s care, the child should live with her.[10]

   [10] Family Report, paras 114, 121

5. The Family Consultant went on to conclude there were risks to the child’s welfare in the mother’s care, posed by Mr D, and so the child’s safety had to be prioritised over the promotion of her more meaningful relationship with the mother. However, she sensibly acknowledged in cross-examination that the assessment of the existence and virulence of the risks of harm posed to the child was the Court’s domain. In some material respects, the evidence adduced at trial in April 2017 about the mother’s attitude towards Mr D differed from the information presented to the Family Consultant in November 2016, reasonably permitting different conclusions than those expressed by the Family Consultant. Before considering the mother’s capacity to protect the child from harm, it is first necessary to evaluate the evidence said to demonstrate how the child’s safety is imperilled.

Section 60CC(2)(b)

1. Reports were made to the NSW Department of Family and Community Services (“the Department”) between October 2015 and October 2016 about the mother’s alleged neglect of the child and the child’s physical abuse by Mr D,[11] but little weight is accorded to those allegations. They were possibly made by the father or members of the paternal family, because the period over which the allegations were made correlated precisely with the life of this litigation (so the Family Consultant was wise to wonder about their provenance[12]) and the same complaints about the mother were made by the father directly to the Family Consultant.[13] At least in some respects, the allegations were contradicted by reliable evidence. Departmental staff inspected the mother’s home and found it “clean and tidy” and staff at the child’s pre-school informed the Department the child was well groomed, dressed, and fed.[14] The mother’s evidence about ensuring the child’s hearing was properly tested was not contradicted and she credibly denied that Mr D ever struck or threatened the child. Indirect medical evidence corroborated the child’s sufferance of a genital or urinary infection, for which she was medicated, but that fell far short of proving the mother neglected the child’s personal hygiene. Ultimately, it was not submitted the mother was incapable of, or had inferior capacity to, meet the child’s proper physical needs. She is not in need of protection from harm through subjection to neglect or physical abuse.

   [11] Family Report, paras 64, 78, 80, 85, 86, 87, 89

   [12] Family Report, para 86

   [13] Family Report, para 30

   [14] Family Report, paras 64, 79

1. The evidence about the child’s possible sexual abuse by Mr D was more troubling. In response to a leading question asked by Ms E, the child disclosed she was touched on the genitals by Mr D.[15] The evidence is indistinct about whether her vagina was penetrated. The Family Consultant believed it may have been,[16] but that is not clear from Ms E’s evidence,[17] and the mother said she was told by a police officer it was alleged the child was touched “on” the “vagina” (which presumably meant “on” the “vulva”).[18] Regardless, Ms E reported the matter to the Child Protection Hotline and it was promptly investigated. The child was interviewed by the NSW Joint Investigation Response Team (“JIRT”). The Family Consultant was informed the child’s interview was inconclusive because she only provided “limited information” and it was difficult to extract any “contextual information” from her. Mr D submitted to an interview and he will not be prosecuted,[19] though an interim apprehended violence order was made against him for the child’s protection,[20] which interim order will be next reviewed by the State court in June 2017.

   [15] Affidavit of Ms E, paras 14, 16; Family Report, para 91

   [16] Family Report, para 91

   [17] Affidavit of Ms E, para 16

   [18] Mother’s affidavit, para 35

   [19] Family Report, para 92

   [20] Exhibit M2

2. Obviously, the failure of JIRT to substantiate the allegation does not mean the abuse did not occur. Equally, the child’s allegation of its occurrence in response to Ms E’s leading questions does not prove it did. The important issue is the chance the child was sexually abused by Mr D and the risk it might happen again (see M v M (1988) 166 CLR 69). The mother refuses to even countenance that the child was sexually abused. There is no doubt about her disbelief, because she informed the Family Consultant of it[21] and confirmed it in cross-examination, but her stout refusal to consider the risk of its occurrence was a poor reflection on her capacity for objectivity and insight. She believed the father and Ms E fabricated the allegations or alternatively “brainwashed” the child to make them, but that theory does not sit so easily with the child’s revelation about Mr D to the Family Consultant that “[h]e do naughty stuff to me”.[22]

   [21] Family Report, para 94

   [22] Family Report, para 102

3. In isolation, the evidence about the child’s possible sexual abuse by Mr D might not be sufficient to establish he poses an unacceptable risk of harm to her but, in conjunction with other evidence about his perpetration of family violence upon the mother, it most certainly does.

4. In April 2015, Mr D seriously assaulted the mother and was charged for the offence. The mother conceded he repeatedly punched her, causing bruising to her face and swelling to her eye. The child and F witnessed the assault and the mother was impelled to concede she lied when she deposed the child had never seen Mr D physically assault her.[23] The charges proffered against Mr D in relation to that incident were dismissed because “no evidence [was] offered” against him,[24] most probably because the mother refused to attend court and testify.[25]

   [23] Mother’s affidavit, para 67

   [24] Family Report, para 61

   [25] Family Report, para 68

5. In December 2015, the mother summoned the police for help. Mr D was at her home, abusing her and refusing to leave. She reported to police she had been threatened by Mr D and that he had assaulted her about “7 times” during their relationship, most recently in November 2015.[26]

   [26] Family Report, para 68

6. In January 2016, the mother again summoned the police because Mr D “kicked the door in and choked [her]”. The police charged Mr D with offences and obtained an apprehended violence order against him to protect the mother, despite her telling them she did not want an apprehended violence order and would not attend court to give evidence against him.[27] In any event, Mr D was fined for the assault and malicious damage.[28] The mother was impelled to admit in cross-examination that her earlier denial of Mr D damaging her home or property was false.

   [27] Family Report, para 70; Exhibit M1

   [28] Exhibit F2

7. In February 2016, the police attended the mother’s home when she reported Mr D was “banging on her windows”. The police found Mr D intoxicated and arrested him for breaching his bail conditions, which prohibited him from contacting the mother.[29] Only days later, the mother reported to the police Mr D was “calling her about 80-100 times per day”, but she failed to provide police with a statement of evidence to enable his prosecution for another breach of bail conditions.[30]

   [29] Family Report, para 71

   [30] Family Report, para 72

8. In November 2016, the police attended the mother’s home late at night to deal with Mr D, who was present at the front gate yelling out to the mother.

9. In November or December 2016, the mother attended on police to report Mr D making threats to her over the telephone and willingly assisted their application to vary the apprehended violence order for her protection, earlier made in January 2016.[31] Mr D was charged with menacing the mother and for contravention of the existing apprehended violence order, for which he was later convicted and placed on good behaviour bonds.[32]

   [31] Mother’s affidavit, para 86

   [32] Exhibit F2

10. The evidence comfortably proved Mr D was and remains a potent threat. Any contact between him and the mother exposes her to an unacceptable risk of family violence (s 60CG(1)) and the child’s exposure to such family violence seriously risks her sufferance of psychological harm (s 60CC(2)(b)). The only way to protect the child is to restrain the parties from allowing Mr D anywhere near her. The mother’s protection is ensured, so far as it can be, by the varied apprehended violence order made against him for her protection in February 2017 for a period of two years. It precludes Mr D’s attendance at her home.[33]

    [33] Exhibit M1

11. The argument between the parties therefore devolved to whether the mother was capable of protecting the child from the threat posed by Mr D to her psychological safety. Bolstered by evidence of her abject failure to do so in the past, the father contended she could not, whereas the mother contended she was committed do so and her conduct over the past few months proved it.

12. While there might be room for argument about the nature of the mother’s past relationship with Mr D, she undoubtedly had one. They were not merely platonic acquaintances. They conceived a child together. The mother told the Family Consultant she “never really” had any relationship with Mr D[34] and she gave evidence to the same effect,[35] but conceded in cross-examination her evidence was false. She could not escape that concession because she told police, when she summoned them for help in December 2015, that she had been in a “relationship” with Mr D for three years.[36] Her fabrication was most probably motivated by the realisation her personal involvement with Mr D was damaging to her case.  

    [34] Family Report, para 5

    [35] Mother’s affidavit, paras 6, 59

    [36] Family Report, para 72

13. The mother told the Family Consultant she believed Mr D posed no risk of harm to the child “whatsoever” and she denied she was ever assaulted by him.[37] She was impelled in cross-examination to admit those statements were also false. She confessed she lied because she thought the false information she provided to the Family Consultant would give her a better chance of recovering the child’s residence from the father.

    [37] Family Report, paras 32-33

14. Mr D most probably now lives primarily in Sydney. The father conceded he could not contest such a factual finding. Mr D’s criminal record implies he has lived in the Suburb G (Sydney) area since at least mid-2016.[38] The mother admitted in cross-examination that, until several months ago in 2016, Mr D continued to periodically attend at and stay in her home to visit F. When he stayed overnight he slept in the mother’s bed, though she denied any continuing sexual relationship between them.

    [38] Exhibit F2

15. In cross-examination, the mother asserted Mr D last came to her home in about June 2016 and she had not seen him since then, but that evidence was revealed to be false by her subsequent admissions. She admitted he did stay at her home after June 2016, he accompanied her to an exchange of the child with the father in September 2016, and he was outside her front gate late one night in November 2016 yelling out to her.

16. Although some aspects of the mother’s evidence were patently false, she was a guileless and unsophisticated witness. Fabrications aside, it is likely she did not understand many questions posed to her in cross-examination and simply answered compliantly. The Independent Children’s Lawyer correctly described her as “naïve, shy and reserved”. Despite clear instances in which her evidence was unreliable, at least some portions of it were persuasive on the question of whether she can successfully keep the child separated from Mr D. For example:

    (a)She said Mr D started “drifting away” from her life in 2016, because he departed from the previously regular pattern of staying at her home on alternate weekends.

    (b)When she learned of the allegation Mr D had sexually abused the child in early November 2016, she telephoned him to discuss the matter and she said he had not been “in” her home since.[39] It was therefore understandable why she did not take or invite him to the assessment with the Family Consultant in November 2016,[40] because she was probably embarking on the gradual process of excluding, or at least limiting, his involvement in her life and, more particularly, the child’s life.

    (c)In late November 2016, she called the police to remove Mr D from the street out the front of her home, from where he was yelling at her, which implied she refused him permission to enter her home before calling the police. He must therefore have obeyed her refusal of permission to enter, which was a clear change to their past behavioural pattern.

    (d)In either late November or early December 2016, after the mother received threatening telephone calls from Mr D, she went to the police and helped them obtain a variation to the existing apprehended violence order against him.[41] In cross-examination about that event, the mother said she telephoned Mr D about a week before and told him their relationship was over because she wanted to try and get the child back from the father, so she must therefore have concluded any continuing association with him would jeopardise her chances of that outcome.

    (e)The apprehended violence order obtained by the police against Mr D for the mother’s protection was originally made in January 2016 but, following his telephone threats to her, was varied in February 2017 for further period of two years. The terms of the order expressly prohibit Mr D from attending any place where the mother lives.[42] Although the order does not preclude any contact at all between them, presumably because of their need to retain a line of communication over parenting arrangements for F, the order restricts the nature of Mr D’s interaction with the mother. An apprehended violence order was also made to protect the child from Mr D, following the allegations made in November 2016 about his sexual abuse of her, and it is similarly restrictive.[43]

    (f)The mother said she did not learn of Mr D’s extensive criminal history until December 2016, which correlated with the release of the Family Report, in which Mr D’s criminal history was discussed and opinions expressed about the danger he poses. The mother said she was “shocked” and “felt sick” by the revelations.[44]

    (g)The mother allowed F to spend time with Mr D, supervised by his mother, but that was on one occasion in early December 2016. She now insists on any future interaction between F and Mr D being professionally supervised and, since she imposed that restriction upon him some months ago, he has not contacted either her or F.[45] Although there is no litigation yet on foot between the mother and Mr D concerning F, the mother said she would maintain that position if Mr D seeks parenting orders for F. There may never be any litigation between them because, for example, there was no litigation between the mother and father until 2015 even though the father barely saw the child between 2011 and 2015.

    (h)The mother said in cross-examination that, although she is still scared of Mr D, he does not harass her now and she believes she will be able to keep him away from her home. She said she would call the police if he came to her home now, which she proved by her call to the police for help in November 2016 and her decision in December 2016 to help police prosecute him for breaches of the apprehended violence order.

    (i)In December 2016, the mother began making enquiries about domestic violence counselling, which counselling she started in March 2017 and intends to continue.[46]

    [39] Mother’s affidavit, para 53

    [40] Family Report, para 20

    [41] Mother’s affidavit, para 86

    [42] Exhibit M1

    [43] Exhibit M2

    [44] Mother’s affidavit, paras 73-74

    [45] Mother’s affidavit, paras 75-77, 145

    [46] Mother’s affidavit, paras 78-85

17. It was not unreasonable for the father to entertain doubt about the mother’s willingness and ability to keep Mr D away from her and the child, given the long history of their abusive relationship in which she was emotionally overpowered by him, but the evidence justifies a finding of her attitudinal change towards Mr D from November 2016. Most probably, she now does have both an intention and capacity to protect the child from Mr D, particularly with the backstop of the restrictive apprehended violence order binding him until February 2019.

18. The father, Independent Children’s Lawyer, and Family Consultant all considered it would be safe for the child to spend substantial amounts of time with the mother, provided she adhered to the injunction precluding any form of interaction between the child and Mr D. But by logical extension, if the injunction was observed, the child would also be safe living with the mother. The Independent Children’s Lawyer considered the chance of the mother’s observance of the injunction was higher if the child only visited her and did not live with her, but that argument was relatively weak. If the evidence reasonably supported a conclusion the mother could probably protect the child from Mr D, the balance of the evidence suggested she should live with the mother rather than the father. Conversely, if she probably cannot protect the child from Mr D, even in the face of an injunction that she do so, then the case was made out for the child to only have very restrictive contact with her – much more restrictive than that proposed by both the father and Independent Children’s Lawyer; perhaps confined to daytime only – as the Family Consultant correctly identified.[47]

    [47] Family Report, para 122

19. It was common ground the parties should be bound by an injunction restraining them from causing or allowing the child to have any contact with Mr D and, in the mother’s case, her compliance with that injunction should be a pre-condition to the child being in her care. That is as much as the Court can do to protect the child from the psychological harm she is liable to suffer through exposure to family violence committed by Mr D, because the parties and Independent Children’s Lawyer all expect the child will continue to at least spend time with the mother.

20. Regrettably, family violence perpetrated by Mr D upon the mother is not the only family violence to which the child is liable to be exposed. On an occasion in September 2016, the parties met to exchange the child between them. Mr D, Ms E, and other associated adults were also present. A loud argument ensued and the mother and Ms E engaged in a physical altercation. The violent affray occurred in the presence of the child and the paternal half-siblings. In fact, the child was physically pulled between the mother and Ms E.[48] The parties and other adults are equally to blame for such disgraceful conduct and, although it only happened once, the enmity between them suggests it could happen again. No order crafted by the Court could exclude that possibility, short of elimination of one party from the child’s life, and nobody sought such a draconian order.

Child’s best interests – additional considerations

[48] Family Report, paras 25-26

Section 60CC(3)(a)

1. The views expressed by the child, and the force with which she expressed them, were an important feature of the evidence.

2. The manner in which the child was observed by the Family Consultant to interact with the mother has already been addressed. She heard the child repeatedly, plaintively tell the mother she wanted to go home with her and she wanted to see F.[49] When the Family Consultant spoke with the child separately she said she was “sad” because she did not want to live with the father. She said she would be “happy” if she could live with the mother. The Family Consultant considered her expression of the desire to live with the mother was “clear” and should be given some weight because of her primary attachment relationship with the mother.[50] Her views should be given considerable weight, since she obviously despairs separation from the mother and F.

   [49] Family Report, paras 106-107

   [50] Family Report, paras 101, 103, 104

Section 60CC(3)(b)

1. The child has secure relationships with both parties and members of their extended families. That was not an issue of contest.

Section 60CC(3)(c)

1. Since the father withheld the child from the mother in November 2016, the mother has failed to take opportunities to maximise her involvement in the child’s life, though to some extent that failure is attributable to the father.

2. Interim orders were made in December 2016 allowing the mother to spend supervised time with the child – some supervised by the professional service known as “H Care” and some by the maternal great grandmother. None of the sessions with H Care occurred, apparently because the father refused to allow the sessions to occur away from the locality in which he lives. That was problematic for the mother because the parties live well over 30 minutes driving time apart, she has no car, she does not drive, and she is loath to enter that district because of her fear of Ms E’s family members, who also live in that district. The father refused to allow H Care to supervise visits closer to the mother’s home. Some of the supervised visits with the maternal great grandmother did not occur either because she was indisposed for some time, firstly by her hospital surgery and then by her recuperation. The mother said she notified the father of those problems.

3. The interim orders allowed telephone communication between the mother and child, but the mother has not exercised it. She said she knew the calls would be placed on speaker, which deterred her from calling. That may be so, but the mother was thinking of herself rather than the child. The child was pining for her and, if the mother did not realise, it was a sad reflection upon her capacity for insight. The Family Consultant was right to say it showed a “lack of child focus” on the mother’s part.

4. The mother could have done more to implement the interim orders, but so could the father. The lack of implementation suited him.

5. Although the father notified the mother of the child’s graduation from day care in December 2016 and her first day at kindergarten in February 2017, the mother did not attend either event. The same problems of lack of transportation options and her fear of Ms E and her family applied.

Section 60CC(3)(ca)

1. No evidence was adduced about the parties’ fulfilment of their obligations to maintain the child and the issue was not debated.

Section 60CC(3)(d)

1. The child’s continued residential separation from the mother and F was another important feature of the evidence. The Family Consultant ominously said in cross-examination there would be “long term [adverse] implications” for the child if she did not return to live with the mother. She said the child was experiencing grief and loss and may feel rejected by the mother if she remains living with the father. Of course, those consequences might be ameliorated by the child spending generous amounts of time with the mother and F, but that is a poor substitute for actually living with them.

1. It is unlikely the child would be emotionally disturbed by being removed from the father’s home to live with the mother. She does enjoy secure relationships with the father, Ms E, and the paternal half-siblings, but the child’s deepest emotional bonds are with the mother and F.

Section 60CC(3)(e)

1. The mother lives in the City J district and the father lives in the I Town district. There was no specific evidence about measurement of the geographical distance between their homes, but it would be a distance of about 30 kilometres and entail driving time of over 30 minutes, depending upon traffic conditions. The mother has no car and no licence. The father does. Buses and trains run between their homes, but connections are inconvenient. Consequently, there is a practical difficulty in the child being exchanged between the parties, unless the exchange venue is situated relatively close to the mother’s home and the father bears the burden of most of the travel.

Section 60CC(3)(f)

1. Both parties have satisfactory capacity to provide for the child’s physical and intellectual needs. The debate was confined to their respective capacities to meet the child’s emotional needs. Both parties’ capacities in that regard are impaired, though for different reasons.

2. Between 2011 and 2015, the Family Consultant concluded the father’s efforts to establish a relationship with the child were frustrated by the mother.[51] In the absence of any challenge to that conclusion, I accept it to be correct. The mother’s opposition might, in part, now explain why the father tended to obstruct the mother’s interaction with the child after November 2016.

   [51] Family Report, paras 9,23

3. The mother’s insight was justifiably the subject of adverse comment. It was demonstrated by, for example, her failure to somehow ensure greater regularity of contact with the child under the interim orders, her failure to take F to supervised visits with the child (other than on Christmas Day 2016), her failure to take F to the Family Consultant interviews,[52] and her foolish denial of the danger posed by Mr D to her and the child.[53] Nonetheless, those deficiencies were not regarded by the Family Consultant as serious enough to warrant the child being removed from the mother’s primary care.

   [52] Family Report, para 21

   [53] Family Report, paras 32-33

4. Significantly, lack of insight was not the sole preserve of the mother. The father’s limitations also deserve comment. In the few months the child has lived with him, she has ceased calling the mother “Mum”, started referring to her by Christian name, and commenced referring to Ms E as “Mum”.[54] The evidence given by the father and Ms E of not encouraging that practice is rejected as false. The child told the Family Consultant the practice was encouraged by them and it beggars belief the child would do it voluntarily. The father ignored the mother’s request for the practice to cease[55] and, as recently as February 2017, Ms E posted a photograph on Facebook with a message referring to her and the child as “mother n daughter” saying “she is now my responsibility”.[56] The evidence tendered to imply the father and Ms E were deliberately orchestrating the substitution of Ms E for the mother as the maternal figure in the child’s life, and Ms E was not merely fulfilling a subsidiary role as step-parent.

   [54] Family Report, paras 18, 98, 99, 100

   [55] Mother’s affidavit, para 57

   [56] Mother’s affidavit, para 140, Annex J

5. The father conceded in cross-examination he would not like the child to address him by his Christian name and call another man “Dad”, but he seemed unconvinced by the force of the analogy. The parties and Independent Children’s Lawyer agreed that, notwithstanding the family’s aboriginality and the cultural tendency to embrace other adults as parental figures, the child should not use important terms of endearment like “Mum” and “Dad” to address or describe anyone other than her biological parents, so an order to that effect will be made. Ms E said she would observe the order and help the father comply with it.

6. The father adopted an unjustifiably hostile attitude to implementation of the interim orders made in December 2016. Upon delivery of the child to the mother and maternal great grandmother for visits, he and Ms E remain in the near vicinity to monitor their interaction. He said he stayed to “keep an eye on them” because he did not believe they could be trusted. He even chased the maternal grandmother away from the supervised visits by calling the police. He believed he had the right to exclude her, even though the interim orders did not invest him with that right. The father must know his presence at those visits are an irritation, so his insistence about remaining must be belligerence. If he is blissfully unaware of the irritation he causes, he has no insight.

Section 60CC(3)(g)

1. No evidence or submission was directed to this consideration.

Section 60CC(3)(h)

1. Both parties are indigenous, both intend that the child should be inculcated with her indigenous and cultural heritage, and both accept the willingness and ability of the other to ensure the child receives such instruction.

Section 60CC(3)(i)

1. This consideration is sufficiently addressed under s 60CC(3)(f).

Section 60CC(3)(j)

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

Section 60CC(3)(k)

1. The apprehended violence orders that protect the mother and child from Mr D have already been explained. There is nothing to add.

Section 60CC(3)(l)

1. This consideration is not relevant. The prospect of further litigation is no more or less pronounced depending upon whether the orders bear closer resemblance to those proposed by the mother or the father and Independent Children’s Lawyer.

Section 60CC(3)(m)

1. The mother’s accommodation has been itinerant in the past, as she lived in various refuges and with relatives around City J for about two years, but since October 2016 she has lived in leased public housing in suburban City J. Most probably, with the security of a public housing lease, her accommodation is now stable.

2. The father is unable to care for the child alone, because of his work commitments, so her care and supervision in his household is dependent upon Ms E’s availability. The husband works away each weekday. He leaves home at about 6.00 am, when the children are still in bed, and does not arrive home until about 4.00 pm. Ms E does not work and is willing to take on the responsibility for care for the child in the father’s absence. That situation is to be contrasted with the mother’s full-time availability to care for and supervise the child.

Conclusions and orders

1. The father and Independent Children’s Lawyer both contended the presumption of equal shared parental responsibility was rebutted, because the evidence demonstrated the parties were unable to exercise it responsibly, as the law requires (s 65DAC), meaning an order to that effect would not be in the child’s best interests (s 61DA(4)). Curiously though, the father contended he only wanted an order made for sole parental responsibility if an order was also made for the child to live with him. If an order was made for the child to live with the mother, he wanted an order for equal shared parental responsibility, which must mean he truly believes the parties can work together in respect of “major long-term issues” affecting the child. He could not have sensibly maintained that submission otherwise.

2. The mother sought equal shared parental responsibility, regardless of with whom the child is ordered to live, because she believed the parties could communicate satisfactorily. Their relationship, particularly over the last year or so, has been quite fractious but the evidence was not strong enough to rebut the presumption of equal shared parental responsibility. Explicit and cogent reasons are required to displace the presumption (see Dundas & Blake [2013] FamCAFC 133 at [61]) and insufficiently explicit and cogent reasons were advanced. An order for equal shared parental responsibility will be made.

3. As a consequence, s 65DAA of the Act is engaged. An arrangement under which the child lives with each party for “equal time” is not reasonably practicable to implement because of the distance between the parties’ homes, the mother’s lack of transport flexibility, and the father’s weekday work commitments in areas quite distant from the locality of the parties’ homes, so no orders will be made for “equal time”.

4. Both parties and the Independent Children’s Lawyer proposed a regime under which the child would live primarily with one party and spend substantial time with the other, although perhaps not as much time as would amount to “substantial and significant time” (s 65DAA(3)).

5. First, as to the issue of residence, on balance, the child should live with the mother. The factors that militate in favour of that outcome are: the child’s primary attachment with the mother; the child’s apparently stronger bond with F than with her paternal half-siblings; the child’s strong desire to live with the mother and F; the mother’s satisfactory capacity to meet the child’s physical and intellectual needs; the impairment of the mother’s capacity to meet all of the child’s emotional needs being no worse than the father’s similarly impaired capacity; the mother’s full-time availability to care for and supervise the child; and the Family Consultant’s opinion that the child should live with the mother if the Court was satisfied of her capacity to protect the child from the risks of harm posed by Mr D.

6. The evidence did demonstrate the mother’s probable capacity to keep the child protected from Mr D. Even though she might need to communicate with him in future over F, any such communication and any interaction between F and Mr D need not involve the child. The orders are couched in terms that make the child’s residence with the mother conditional upon her continuing compliance with an injunction restraining her from allowing any contact between the child and Mr D. If she breaches the injunction, the father will likely become aware of it and fresh litigation could eventuate. That would be unfortunate, but orders crafted in that way will signal to the mother that she must honour her evidence and remain vigilant or otherwise risk having the child removed from her care.

7. The orders provide for the child to spend time with the father on her birthday, on alternate weekends, during school holidays, and on other special occasions. The alternate weekend visits commence on Friday afternoon and end on Sunday afternoon. That was the style of order proposed in reverse by the parties. To the extent such visits do not amount to “substantial and significant time” within the meaning of s 65DAA of the Act, it must be because the parties and Independent Children’s Lawyer do not regard more protracted or frequent visits as being reasonably practicable or in the child’s best interests. If it was not an issue of contest between the parties and Independent Children’s Lawyer, the Court should baulk at making it one. Orders will be made to that effect.

8. There was a dispute over the distribution of the Summer school holidays, though it was not the subject of any evidence or submission. The Independent Children’s Lawyer, with the support of the father, proposed that the child stay with the parties on weekly rotations.[57] The mother’s minute of orders shows she originally agreed with that proposal, but then changed her mind and proposed that the Summer holidays be halved, just like the other school holiday periods.[58] The first proposal is adopted, simply because it was at least initially mutually satisfactory. The issue was not justiciable in the absence of evidence and reasoned argument.

   [57] Exhibit ICL2, Order 3(c)

   [58] Exhibit M3, Orders 3(b), 3(c)

9. The parties agreed the child should be exchanged at a public venue in Suburb C, NSW, close to the mother’s home. Orders to that effect are made.

10. There was concurrence that Ms E need not and should not attend exchanges. The father and the Independent Children’s Lawyer sought an order to ensure her absence, but the mother did not. No such order is made because it may be necessary for Ms E to be occasionally involved, due to the father’s work commitments for example, but whenever possible she would be well advised to not attend exchanges of the child.

11. The orders permit telephone communication between the parties and the child twice each week, which reflects the mutual proposals.

12. The Independent Children’s Lawyer withdrew her application for an order that the parties be compelled to attend a post-separation parenting course.[59] An order to that effect was made by the Federal Circuit Court in April 2016. If they complied with it, they did not learn much. If they disobeyed the order, they would probably do so again. Either way, another order would likely be futile. No such order is made.

    [59] Exhibit ICL2, Order 15

13. The remaining orders generally correlate with orders sought by both parties and the Independent Children’s Lawyer and could not be the subject of reasonable objection.

14. The orders set out at the commencement of these reasons promote the child’s best interests.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 27 April 2017.

Associate: 

Date:  27 April 2017