COTTRELL & GREYSON

[2015] FamCA 1000

FAMILY COURT OF AUSTRALIA

COTTRELL & GREYSON [2015] FamCA 1000

FAMILY LAW – CHILDREN – Best Interests – Where the child has meaningful relationships with both parents – Where the parties adduced evidence that the child’s physical and psychological safety was imperilled by her exposure or subjection to family violence, physical abuse, sexual abuse and neglect in the other party’s care – Where the child is at risk of harm through exposure to family violence in the father’s household – Where the evidence did not support any finding that the child was at risk of harm through subjection to sexual abuse by her half-sibling in the mother’s household – Where the father’s attitude to such alleged risk reflected adversely upon his parenting capacity –  Where the evidence did not support any finding that the child was at risk of harm through subjection to physical abuse or neglect in either household – Where the mother’s improvement of her parenting capacity was comparatively superior to the father’s improvement – Where if the child remains living with the father the quality of her relationship with the mother could well deteriorate – Where the preponderance of evidence favoured the mother as the residential parent – Child to live with the mother – Where the child should spend time with the father, graduating to a regime of substantial and significant time once she commences school

FAMILY LAW – CHILDREN – Parental Responsibility – Where the evidence proved both parties perpetrated family violence – Where the presumption of equal shared parental responsibility does not apply – Where there is no feasible option but to allocate parental responsibility exclusively to the party with whom the child will live – Mother to have sole parental responsibility

Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 65D

APPLICANT: Ms Cottrell

RESPONDENT: Mr Greyson

INDEPENDENT CHILDREN’S LAWYER: Mr Squires, Legal Aid NSW

FILE NUMBER: NCC 88 of 2015

DATE DELIVERED: 13 November 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 26, 27, 28 October & 9 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kelly

SOLICITOR FOR THE APPLICANT: Hunter Family Law Centre

COUNSEL FOR THE RESPONDENT: Mr Allen

SOLICITOR FOR THE RESPONDENT: Sharon Moore Solicitor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Sundstrom

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Squires, Legal Aid NSW

Orders

1. All former orders relating to B, born … 2014, (“the child”) are discharged.

2. The mother shall have sole parental responsibility for the child.

3. The child shall live with the mother.

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

   (a)Up to and including Thursday 28 January 2016:

   (i)Each Monday and Thursday from 9.00 am until 4.30 pm.

   (b)From 29 January 2016 up to and including Thursday 4 August 2016:

   (i)Each week from 9.00 am Wednesday until 4.30 pm Thursday.

   (c)From 5 August 2016 up to the child’s commencement of school:

   (i)Each week from 9.00 am Wednesday until 4.30 pm Thursday;

   (ii)From 9.00 am until 4.30 pm on Father’s Day each year; and

   (iii)From 3.00 pm Christmas Day until 4.30 pm Boxing Day each year.

   (d)Thereafter:

   (i)During school terms, from the conclusion of school on Friday until the commencement of school the following Monday (or Tuesday on long weekends), commencing on the first Friday of each term;

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

   (iii)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 even numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an odd numbered year.

5. For the purposes of implementation of Order 4(d) hereof, the school holidays are deemed to commence at the conclusion of school on the last day of term, the holidays are deemed to end at the commencement of school on the first day of the new term, and the mid-point is midday on the day halfway between those first and last days.

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

   (a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will spend time with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in even numbered years, with the same arrangements in reverse in odd numbered years; and

   (b)Between 9.00 am and 5.00 pm on each Mother’s Day and Father’s Day, during which periods the child shall spend time with the mother on Mother’s Day and with the father on Father’s Day.

7. For the purposes of implementing Orders 3, 4 and 6 hereof, unless otherwise agreed, the parties shall respectively ensure the child’s:

   (a)Collection from school, whenever the child’s residence or expenditure of time with a party is to commence at or about the conclusion of school during school term;

   (b)Return to school, whenever the child’s residence or expenditure of time with a party is to conclude at or about the commencement of school during school term; and otherwise

   (c)Collection from and return to the Suburb C Railway Station.

8. Each party is restrained from causing or permitting the infliction of corporal punishment upon the child.

9. Each party is 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.

10. 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 the mother (who has sole parental responsibility) shall authorise any treating health professionals to communicate with the father about the condition and treatment of the child.

11. The mother shall authorise and request the principal of any pre-school or school attended by the child to provide to the father, at the father’s expense, copies of all pre-school and school reports and photograph order forms relating to the child.

12. Each party shall forthwith inform the other, and keep the other informed, in writing, of their respective mobile telephone number.

13. 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.

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

15. Any and all outstanding applications are dismissed.

Notation

(A)These orders do not preclude the father’s attendance at the child’s school activities and extra-curricular activities when parents are ordinarily welcome.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 88 of 2015

Ms Cottrell

Applicant

And

Mr Greyson

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. The applicant mother (“the mother”) and respondent father (“the father”) have a young daughter who is the subject of these proceedings (“the child”). They cannot agree upon her care. Both want sole parental responsibility for the child and for her to live with her or him. They are each prepared for the child to spend time with the other, subject to different conditions designed to safeguard her welfare.

2. The parties’ dispute entailed multiple allegations about the child’s potential harm through her exposure or subjection to family violence, sexual abuse, physical abuse, and neglect. Unfortunately, those allegations were not the only threats to the child’s welfare. For a variety of reasons, the parties’ parenting capacities were impaired, which impeded their ability to eradicate the risks of harm faced by the child and generally depreciated their parenting performance. Recent individual efforts to improve their parenting were laudable, but nonetheless belated and thus far only partially successful.

3. The preponderance of evidence favoured selection of the mother as the preferable residential parent, but for the father to still play an important role in the child’s life.

History

1. The parties’ relationship did not last long. It commenced in or about October 2013 and ended in December 2014.

2. Their only child was born in 2014 and is now 15 months of age.

3. The father has no other children, but the mother has four. They are all daughters. The two eldest (D and E) were born to the same father (“Mr F”) and are now aged nine and eight years respectively. The two youngest (G and H) were also born to the same father (“Mr I”), but they are half-siblings to the eldest two. They are now aged five and four years respectively.

4. Until the parties’ separation in December 2014, D and E lived with the parties, together with the child after she was born. Presently, the child and her four half-siblings are split between various households. D now lives with the maternal grandmother, E still lives with the mother, G and H live with Mr I as they always did, and the child lives with the father.

5. The parties separated in turbulent circumstances in December 2014, following the father and a paternal aunt discovering D and a young paternal cousin (“J”) in bed together. The father and the paternal aunt formed a view that D had, in some way, sexually interfered with J. Both became enraged and ordered the mother to immediately leave the house with D, but to leave E and the child behind with the father, with which demand the mother complied. The following day the father told the mother of his intention to permanently sever their relationship and to retain the child in his care, though E was later returned to the care of the mother.

6. The mother was unable to persuade the father to return the child to her, even though she made arrangements for D to move and live with the maternal grandmother in Sydney to assuage the father’s concerns about the risk of harm posed to the child by her living in the same household as D. Consequently, the mother commenced these proceedings in January 2015, seeking an order enabling her recovery of the child from the father.

7. With the parties’ consent, interim parenting orders were made a week later, on 22 January 2015, which orders were only intended to regulate parenting arrangements for the child until the mother’s interim application for residence of the child could be more comprehensively ventilated. The orders essentially provided for the child to live with the father, provided he remained living with the paternal grandmother, and for the child to spend time with the mother for two periods of 32 continuous hours each week (which amounted to about four days and two nights per week). The mother was restrained from allowing the child to be brought into contact with D.

8. The mother’s interim application, and the interim application subsequently filed by the father in response, were later determined on 30 March 2015. Orders were then made for discharge of the orders made in January 2015, for the child to remain living with the father (provided he remained living with the paternal grandmother), and for the child to spend time with the mother on two separate days each week (in the absence of D). By then, the parenting capacity of both parties was well and truly in issue and so, with their consent, orders were made requiring them both to submit to random urinalysis.

9. The dispute proceeded to trial in October 2015, following preparation of a Family Report and notification from the Secretary of the NSW Department of Family and Community Services (“the Department”) that he did not intend intervening in the proceedings.

Proposals

1. The mother abandoned the proposal set out in her Amended Initiating Application filed on 9 July 2015. Instead, she tendered a minute of the orders she proposed at the commencement of her final submissions.[1] In effect, her proposal was for the child to live with her and for her to have sole parental responsibility for the child. She proposed the child spend time with the father under an escalating regime, culminating in alternate weekends and half of school holiday periods by the time the child commences school, several years hence, subject to the child’s overnight stays with the father being supervised by the paternal grandmother.

   [1] Exhibit M14

2. The father adhered to the proposal set out within his Amended Response filed on 5 August 2015. His proposal was for the child to live with him and for him to have sole parental responsibility for her. He proposed the child continue to indefinitely spend only two days each week with the mother, without any overnight stays and subject always to an injunction restraining the mother from allowing the child to be in the physical presence of D.

3. The Independent Children’s Lawyer tendered a minute of the orders he proposed once the evidence was closed and final submissions were about to commence.[2] His proposal was very similar to the mother’s. Essentially, the slight variations were as to the days and times of the child’s weekly visits to the father, extension of her eventual weekend visits to conclude on Monday mornings in lieu of Sunday evenings, and the dispensation of any need for supervision of the father by the paternal grandmother during overnight stays.

   [2] Exhibit ICL4

Evidence

1. The mother relied upon:

   (a)Her affidavit filed on 11 September 2015, subject to correction of errors as to dates;[3] and

   (b)The affidavit of the maternal grandmother filed on 11 September 2015.

   [3] Exhibit M2

2. The father relied upon:

   (a)His affidavit filed on 15 September 2015; and

   (b)The affidavit of the paternal grandmother filed on 15 September 2015.

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

   (a)The Magellan Report prepared by the Department, dated 27 February 2015; and

   (b)The Family Report prepared by the Family Consultant, dated 1 June 2015.

4. The Family Consultant suggested that the Family Report be read in conjunction with an earlier report she compiled in September 2014 concerning the mother, Mr F, D, and E,[4] but the parties and Independent Children’s Lawyer agreed that other report should not form part of the evidence. Instead, the father tendered in evidence only paragraph 48 of that report.[5]

   [4] Family Report, page 4, Appendix B

   [5] Exhibit F1

Legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

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

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

4. The Court is required to apply a rebuttable presumption that 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 equal 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).

5. 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 best interests of the child for the parents to have equal shared parental responsibility for the child (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.

6. In the event an order is made allocating equal shared parental responsibility to the child’s parents, either presumptively or otherwise, 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).

7. If parental responsibility for the child is allocated in some other way, then the Court’s discretion is at large in the determination of the parenting orders warranted, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Best interests of children – primary considerations

Section 60CC(2)(a)

1. One positive aspect of these proceedings was the absence of argument over the fact and desirability of the child deriving benefit from her existing meaningful relationships with both parents. Either by express concession or by inference from their proposals, the parties acknowledged the child would benefit from maintenance of her meaningful relationships with them both.

2. Recognition of that fact was not misconceived. The Family Consultant found the child was attached to the father and comfortable and secure with the mother.[6] By the time of trial, the child had lived primarily with the father for the last 10 months of her 15 months of life, so the nature of her attachments with the parties was a feature of the Family Consultant’s cross-examination.

   [6] Family Report, paras 116, 119, 121

3. The Family Consultant suggested there was a “strong possibility” the child’s attachment to the father was compromised, though there was still a bond between them. Her ultimate opinion, which I accept as correct, was that even though the father was probably now her primary attachment figure, the child would probably cope with another reversal of her residence. That evidence was integral to the proposals of the mother and Independent Children’s Lawyer. Significantly, the father did not dispute the validity of that evidence, but rather simply submitted the child’s interests would be better served if she remained living with him.

Section 60CC(2)(b)

1. Of course, the parties’ acknowledgement about the desirability of the child’s derivation of benefit from her meaningful relationships with them was conditional upon factual findings about her safety in their respective care. The parties’ counter-allegations of parental misconduct and incompetence ranged widely, covering imperilment of the child’s physical and psychological safety by her exposure or subjection to family violence, physical abuse, sexual abuse, and neglect.

2. Although each party blamed the other and absolved themselves of such misconduct and incompetence, the Family Consultant was worried about both of them. She said in the Family Report:[7]

   [The child] has been born into this cycle of violence and has been affected by it to date. There are significant concerns for [the child’s] safety in either parent’s care.

   There are significant concerns around parental drug use, mental health issues and criminal behaviour – all of which impact on parenting capacity. The issue of parenting capacity will be the major focus of this Report.

   …neither parent is regarded as having the capacity to identify and meet [the child’s] needs. Both parents appear to have significant deficits with regard to parenting capacity.

   At this point in time, it would appear that [the child] is at risk of harm in either parent’s care.

   [7] Family Report, paras 43-44, 125-126

1. Part of the Family Consultant’s concern related to matters which properly fall for consideration under s 60CC(3) of the Act, but the issues of family violence, abuse, and neglect, which are germane to s 60CC(2)(b) of the Act, will be considered separately.

Family violence

1. The parties had quite different perceptions about the volatility of their relationship, but there was some underlying agreement.

2. It was common ground their relationship was “very turbulent” with a “high level [of] conflict”, to which the child and the mother’s other children were exposed.[8] However, the parties attributed principal blame to the other.

   [8] Family Report, para 20

3. The mother reported the father frequently perpetrated violence upon her, particularly in the latter months of their relationship. She alleged being pushed, punched, and strangled by him, even when she was pregnant. She also alleged the father caused intentional damage to their property when enraged. When the mother threatened to end their relationship she alleged the father intimidated her.[9] The mother admitted she occasionally retaliated against the father,[10] so she was sometimes a perpetrator because retaliation is not self-defence.

   [9] Family Report, para 20; Mother’s affidavit, paras 61-86, 103, 106; Exhibit M2

   [10] Mother’s affidavit, para 92

4. The father denied the extent of the violent conduct alleged against him by the mother. He denied assaulting the mother, but admitted holding her by the wrists to restrain her attacks upon him.[11] Significantly though, he admitted he bashed holes in the walls of the family home, which would have frightened the children.[12] The mother alleged, at the time of their separation, there were 13 holes in the walls of their home.[13] The mother was not challenged about that and the father admitted it in cross-examination.

   [11] Family Report, para 20; Father’s affidavit, para 50

   [12] Family Report, para 50; Father’s affidavit, para 61

   [13] Family Report, para 79

5. To the extent that the parties’ versions were not reconcilable, there are several reasons why the mother’s version was more reliable.

6. First, while the mother was challenged generally about the veracity of her evidence concerning the father’s violence, she credibly adhered to her evidence. She was able to give precise details about various discrete incidents. Conversely, the father generalised, minimised and deflected blame. He was not as credible as the mother about the past physical conflict.

7. Second, it is likely that, given his numerous explosive outbursts of anger which admittedly resulted in damage to the parties’ property, the father was much more dangerous than he was prepared to concede.

8. Third, the mother confronted both the father and paternal grandmother about the father’s anger, which she would not likely have done if she was principally responsible for the hostility in their household. During cross-examination, both the father and paternal grandmother admitted the mother told them she was troubled by the father’s anger and he needed to do something to resolve it. Despite the mother’s courageous confrontation of the problem, nothing was done by the father to address it.

9. Fourth, the father’s tendency to enragement has been a long-term feature of his character. The paternal grandmother confirmed in cross-examination she had encountered difficulty dealing with his anger since he was a young child. At various points in his life, the father was referred for treatment in respect of his violent and/or aberrant behaviour. It occurred intermittently from 2003, when he was barely adolescent, until 2010, when he was a young adult.[14]

   [14] Exhibits M9, M10, M11, M12, ICL1, ICL2

10. I accept there was an appalling level of violence within the parties’ household during their relationship, for which the father was principally, though not solely, responsible.

11. Needless to say, the child should be protected from exposure to family violence. Although there have been no frank incidents of physical violence between the parties since their separation, their mutual animosity has not appreciably abated. Since the parties’ separation, avoidance of conflict at exchanges of the child has probably only been achieved by the paternal grandmother’s usual attendance in place of the father. It is highly desirable the parties remain physically separated.

12. The mother’s past romantic relationships were characteristically abusive. She alleged, and the father accepted, she was the victim of family violence committed by both Mr F and Mr I in the past. To her credit, she realised her propensity to form domestic relationships with abusive partners and so to avert that trend she said in cross-examination she needed to improve her self-esteem, which she has attempted to do by taking numerous parenting courses and by engagement in counselling. Her awareness of the problem and her active attempts to overcome it portend her maintenance of a household free of family violence. The child is unlikely to now be exposed to family violence in her home.

13. The same degree of confidence does not attend predictions about the peace of the father’s home. Although he began counselling some months ago in April 2015, part of which is apparently devoted to improvement of his anger management, it would be naïve to conclude the best part of a lifetime of simmering anger, resentment, and intolerance has been cured by a handful of counselling sessions. It is, of course, commendable the father has finally taken steps to address his problems, but it remains unclear whether he did so merely for strategic advantage in these proceedings, or alternatively, from genuine acknowledgement he has a problem. He admitted he only began seeing a drug and alcohol counsellor because his solicitor suggested it, rather than because he perceived the real need.

14. The father was often exasperated during cross-examination. Even allowing for his impaired literacy, his frustration seemed disproportionate to the level of pressure to which he was subjected. It offered an insight into the ease of his irritability. Anger is the father’s normal methodology for dealing with stress and disagreement. Physical outbursts often accompany his bouts of anger. That has been so for many years and it is unlikely to change in the near future, despite any contrary intention. The chance of the child’s exposure to violence in the father’s household remains existent. The risk of the child’s sufferance of psychological harm from such exposure is not so unacceptably high that it can only be attenuated by her not being allowed in his home or to visit him, but it is sufficiently pronounced that it must influence the decision about with whom the child resides and the amount of time she spends with the father.

Physical abuse

1. The mother alleged the father once dangled D over a balcony[15] and otherwise treated her more harshly than by legitimate physical discipline.[16] Despite adducing such evidence, the mother made no submission about it and the father was not cross-examined about any physical abuse of D, or any other child for that matter.

   [15] Family Report, para 79

   [16] Mother’s affidavit, paras 89-90

2. The state of the evidence precludes any finding that the child is in need of protection from physical or psychological harm through her exposure or subjection to physical abuse by the father.

Sexual abuse

1. The fateful event which precipitated the parties’ separation, the father’s retention of the child, and the commencement of these proceedings occurred in December 2014 at a party hosted by a paternal aunt.

2. It is important to set the scene with the recitation of uncontroversial facts. The adults at the party were either consuming alcoholic drinks or smoking cannabis, which likely affected their sobriety to some extent. Young children were in attendance, including D, E, and the child, but the children were supposed to be in separate bedrooms sleeping. Late in the evening a child emerged from the bedrooms and reported to the paternal aunt who was hosting the party that J told him to leave his bedroom. The aunt and the father went to J’s bedroom to investigate. They found the door open and the light on. The bed was visible from the doorway. They saw J and D in the bed under a blanket which, when thrown back, revealed them both to be fully clothed. The father imputed D had just pulled up her leggings and that she and J had been engaged in some form of improper sexual experimentation before being disturbed.

3. Despite their suspicions, the father and the paternal aunt were quite unsure about what had occurred. That is evident from the statements they each made to paternal family members shortly afterwards.

4. They both went back outside, at which point the paternal aunt announced:

   I think D just sexually assaulted my son.[17]

   and the father said to the paternal grandmother:

   We don’t know exactly what happened yet.[18]

   [17] Father’s affidavit, para 30

   [18] Father’s cross-examination 27/10/15

5. Despite their initial uncertainty, the response of the father and paternal family members grew to be wildly disproportionate to what was actually observed.

6. The paternal aunt said to the mother, in reference to D:

   Get that fuckin kid out of my house.[19]

   You fucking get out of here or you and your daughter’s throats will be slit. Hurry the fuck up. Get that cunt of a kid out of here.[20]

   [19] Father’s affidavit, para 31

   [20] Mother’s affidavit, para 128

7. The father ensured the mother and D were immediately driven away from the house, while he retained the child.[21]

   [21] Father’s affidavit, paras 32-34

8. The next day the father told the mother over the telephone:

   Pack your shit and get the fuck out of my house.[22]

   [22] Father’s affidavit, para 38

9. Worse still, subsequent descriptions of the event by the father and members of the paternal family were grossly exaggerated.

10. The father reported to the mother details of his observation of the incident, which were not factually correct. He said to the mother:

    I pulled back the blankets and [D] was fixing up her pants…As she was leaving [J’s] room she was fixing up her underwear.

11. He said nothing of observing D “fixing her underwear” as she departed J’s room, either in-chief or in cross-examination. That aspect of his subsequent report to the mother seems to have been an embellishment.

12. Although the father was not directly responsible for it, reports about the incident made the following day to the Department by the paternal grandmother and two other members of the paternal family were fabrications.

13. The Departmental notes of the reports received include:[23]

    [J’s] fingers smelled of vagina indicative digital penetration may have occurred [sic].

    [J] was made to passionately kiss [D].

    [D] has allegedly inticed [J] to touch and kiss her “down there” [sic].

    [23] Exhibit M13

14. Although not part of the exhibit tendered by the mother, the Family Consultant reported the paternal family alleged that “[D] had soiled herself and that faeces were all over [J’s] hand [sic]” and that “the bed was wet through with [vaginal] secretions because…[D] had reportedly reached orgasm during the incident”.[24]

    [24] Family Report, para 25

15. During a telephone conversation the night following the incident the paternal aunt said to the mother:[25]

    [D] had “come” on the sheets to the extent that the bed was wet. [J] had [D’s] faeces all over his hand and he said he felt dirty.

    [25] Mother’s affidavit, para 139

16. The mother did not see the incident (nor did the paternal grandmother) so she was unable to confirm the state of the bed linen, but she told the Family Consultant and gave clear evidence that D’s clothing was not soiled that night.[26] She was not challenged about the truth of that statement, which I accept as correct, meaning J could not have had her faeces on his hand. The allegation to the contrary was false.

    [26] Family Report, para 25; Mother’s affidavit, para 140

17. During cross-examination, both the father and paternal grandmother stoutly denied they had over-reacted, which revealed an astounding lack of insight. Had the father, paternal grandmother, and other members of the paternal family paused for one moment to consider the implications, they may have acted differently.

18. It is unlikely D and J were furtively engaged in some improper sexual encounter, given they were visible in bed together from outside the bedroom, with the door open and the light on. Even if they were engaged in some form of sexual experimentation, it may have been instigated by J rather than D, or they may have been equally to blame. They were similar ages. It was J, not D, who told J’s friend to get out of the room. The rush to blame D for “sexual assault” was impetuous and unjustified.

19. Even if their behaviour was quite improper for children of their age, the incident should have been handled far more sensitively. Violent threats were made either directly to D or about her in her presence.[27] She was spirited away from the house late at night with many of the adults in a state of heightened agitation and she has not been permitted to see the child, J, or any other paternal cousin since.

    [27] Family Report, para 27

20. To the extent that any of the various allegations since made about the incident between D and J relied upon statements made by J to members of the paternal family, very little weight could be attributed to such statements. J must have been aware the incident created a maelstrom. He must also have known he was in trouble. The paternal aunt (his mother) immediately said to him “what are you doing, you know the rules, boys in one room, girls in the other”. It is easy to imagine how he might have thereafter tried to deflect any blame for the incident to D. Very little, if any, reliable evidence was adduced as to the nature of subsequent conversations between J and adult members of the paternal family. What he was asked, how he was asked, and how he responded remain unknown.

21. Much later, once these proceedings were underway, the father alleged to the Family Consultant that he and the mother were aware D previously made a video of her engagement with E in some form of sexual activity.[28] The father did not adduce any evidence of such an event, but the mother expressly denied it.[29] Neither party was cross-examined on that issue so no weight can be attached to the contested allegation.

    [28] Family Report, para 56

    [29] Mother’s affidavit, para 265

22. Towards the end of the trial, after the evidence closed, the father’s counsel announced that, following the father’s receipt of legal advice, he conceded the evidence did not permit any finding that D posed a sexual threat to the child. The Independent Children’s Lawyer put it more expressively – the evidence “did not come within a bull’s roar” of any such finding.

23. As a consequence of the father’s concession, the risk of harm posed to the child by D evaporated as a contentious issue, even though the formerly alleged risk was the catalyst for the father’s decisions to separate from the mother and retain the child in his care. Nevertheless, the issue continued to hinder the father in the proceedings because of the adverse manner in which it reflected upon his attitude and parenting capacity. Despite formally conceding the evidence did not objectively support any finding that D posed a risk of harm to the child, he staunchly maintained his subjective belief that she did.

24. For abundant clarity, whatever may have transpired between D and J during that incident in December 2014, D probably now poses no risk of physical or psychological harm to the child. There is no reason they should not enjoy one another’s company. The father’s application for an injunction precluding their physical interaction is rejected.[30] Nor is there any need for an order requiring the mother to supervise the child in D’s company. It is unlikely the child and D will live in the same household for the foreseeable future anyway, so the time they spend in each other’s company will be limited. In other proceedings involving the mother, the maternal grandmother, and Mr F, final parenting orders were made for D to live with the maternal grandmother in Sydney.[31]

    [30] Amended Response 5/8/15, Order 4

    [31] Mother’s affidavit, paras 10(a)(i), 245; Family Report, para 71, 108

Neglect

1. The Family Consultant noted that members of the paternal family complained about the mother’s poor housekeeping skills, which caused the child and her half-siblings to live in “conditions of neglect and poverty”.[32] The paternal grandmother even told the Family Consultant she was moved to tears “at the degree of filth and poverty” in which the child was living with the mother.[33]

   [32] Family Report, para 21

   [33] Family Report, para 64

2. There is no evidence that any member of the paternal family ever visited the mother in her own accommodation after her separation from the father so, by imputation, they must have been referring to their observations of the parties’ joint household at times prior to their separation.[34] Why they would therefore attribute such conditions of neglect, filth, and poverty to the mother alone defies rational explanation. If conditions were so bad, the father’s responsibility for it was just as great. The inference of greatest force is that the conditions of the parties’ household were not as bad as they were portrayed.

   [34] Paternal grandmother’s affidavit, paras 17-18

3. In any event, there was no cross-examination of any witness about the issue and no final submission made about it either, which renders it impossible to conclude the child needs protection from physical or psychological harm through her exposure or subjection to neglect by the mother.

Best interests of children – additional considerations

1. Reference has already been made to the Family Consultant’s concern about the parenting capacity of both parties when she compiled the Family Report in June 2015. She said in cross-examination at trial that events over the intervening months led her to form a more favourable view of the mother’s parenting capacity. It is necessary to traverse the evidence to understand why it was reasonable for her to revise her opinion in that way.

2. The mother’s past was chaotic and unsuited to stable parenting. She led a transient lifestyle and was troubled by mental ill health,[35] which caused difficulty for D and E. They had to change residences and schools frequently and the mother failed to diligently ensure their receipt of counselling for the sexual abuse they sustained at the hands of their young cousins.[36] The mother’s problems were only compounded by her illicit drug use, which began when she was only an adolescent. She and the father used illicit drugs regularly throughout their relationship.[37]

   [35] Exhibit F2

   [36] Family Report, paras 4-6; Exhibit F3

   [37] Family Report, paras 18-19

3. The father’s retention of the child in December 2014, the imposition of interim orders for urinalysis in March 2015, and the adverse comments made about her in the Family Report in June 2015 collectively jolted the mother out of her witless torpor. Knowing she was at risk of losing all of her children, she set about improving her parenting performance.

4. She ceased use of illicit drugs and throughout 2015 she produced negative drug screens.[38] She availed herself of drug and alcohol counselling[39] and has now been abstinent for nearly a year, which enables cautious optimism about the diminishing risk of relapse.

   [38] Exhibit M4

   [39] Family Report, para 85; Mother’s affidavit, paras 21-22

5. She is engaged with the Family Support Service and maintains contact with a caseworker. She has also completed some parenting courses.[40] The Family Consultant agreed with the proposition put to her by the father’s counsel that “counselling is not a panacea”, but that observation applied as much to the father as it did to the mother. The mother holds down employment as a cleaner for a couple of days each week and she is enrolled to study for tertiary qualifications.[41]

   [40] Family Report, paras 84, 86; Mother’s affidavit, paras 26-30

   [41] Family Report, para 76

1. The mother now lives with only E and their household is stable. D visits regularly with the maternal grandmother. Until recently, G and H also visited regularly, but the mother is litigating with Mr I to restore that arrangement.

2. Besides her personal improvement, the mother now has stable support from the maternal grandmother, of whom she is no longer so resentful.[42] Given the past impairments of both parties’ parenting capacity, the Family Consultant was particularly interested in the parties’ current support networks. Besides the intervention of outside agencies, the parties each rely most on their own mothers. The child is attached to both grandmothers.[43] The Family Consultant considered the mother’s support was superior to the father’s support, which assessment I accept as correct. Unlike the paternal grandmother for the father,[44] the Family Consultant regarded the maternal grandmother to be a good parenting role model to the mother, as was evidenced by her ability to arrest D’s emotional decline.[45]

   [42] Maternal grandmother’s affidavit, para 78

   [43] Family Report, paras 117, 120

   [44] Family Report, para 130

   [45] Family Report, paras 90-94

3. The mother seemed thoughtful and measured in cross-examination. She said her circumstances “look very different now”, which was an accurate appraisal of the situation.

4. Significantly, the father expressed no concerns about the mother’s parenting capacity at all, save for her ability to protect the child from sexual abuse by D. The father told the Family Consultant as much[46] and repeated such sentiments both in evidence-in-chief[47] and during cross-examination. Given the finding that D poses no risk of harm to the child from which she requires protection, it was illuminating the father had no other complaint to make about the mother’s parenting capacity.

   [46] Family Report, paras 39, 52

   [47] Father’s affidavit, paras 41-42

5. By comparison, the father experienced a similarly traumatic adolescence and early adulthood, but his attempts at reparation are less encouraging.

6. He also began use of illicit drugs in his adolescence. By his own admission, he was using a staggering amount of cannabis, aside from other drugs, up until he started detoxification in a hospital in May 2013.[48]  His drug use abated but did not cease and, upon formation of the relationship with the mother not long afterwards, he reverted to heavy daily use. The mother reported to the Family Consultant that the father routinely spent the entirety of his pension on drug purchases.[49]

   [48] Family Report, para 7; Father’s affidavit, paras 7-8

   [49] Family Report, paras 19, 21; Father’s affidavit, para 6

7. The father told the Family Consultant and gave evidence that he ceased use of illicit drugs once he assumed principal care of the child in December 2014,[50] for which he had some corroboration. He produced negative drug screens undertaken in March 2015[51] and June 2015,[52] but he did not comply with the Independent Children’s Lawyer’s demand to submit to urinalysis in October 2015.[53] I accept the father must have moderated his drug use to produce two negative test results, but his rehabilitation does not inspire quite the same degree of confidence as the mother’s.

   [50] Family Report, para 49; Father’s affidavit, para 57

   [51] Family Report, Appendix A

   [52] Exhibit F5

   [53] Exhibit ICL3

8. The father’s intellectual acuity is unfortunately limited. The father conceded he has poor literacy and numeracy skills. He is not as well equipped as the mother to cater to the child’s intellectual needs as she matures and progresses academically. His IQ is in the low/average range, he has been diagnosed with ADHD, Asperger’s, Learning Difficulties, and Autism. He has been in receipt of a Disability Support Pension since age 16 for his autism and the paternal grandmother has been his registered carer, for which she is remunerated, for the last three years.[54] It is his cognitive condition, not his physical condition, which warrants his need for a paid carer.

   [54] Family Report, para 10

9. Like the mother, the father has recently tried to improve his parenting performance by undertaking some parenting courses[55] and working with a “support worker”, who is satisfied with his progress and with whom the Family Consultant conferred.[56] The father also consulted with a psychologist about his autism and anger,[57] but the Family Consultant’s inquiries revealed the father failed to provide the psychologist with his comprehensive history. He omitted to tell her of his past drug use, psychological complications, and therapeutic interventions, so her preliminary optimistic opinions about his prognosis carry much less weight than would otherwise be the case.[58]

   [55] Family Report, para 47; Father’s affidavit, paras 53, 55, 56

   [56] Family Report, paras 48, 95-99

   [57] Father’s affidavit, para 52

   [58] Family Report, paras 100-103

10. Commendable though the father’s efforts have been, he possesses some idiosyncrasies which will likely permanently hamper his parenting capacity. That may account for why the mother told the Family Consultant she perceives no change in the father despite the assistance he has recently received.[59]

    [59] Family Report, para 82

11. The father’s counsel extracted concessions from the Family Consultant in cross-examination that the father was a “concrete thinker” with “learning difficulties”. Bereft of the ability to solve problems conceptually, it is likely the father will continue to resort to blunt and unsophisticated responses, much like the callous way in which he handled the incident between D and J and his separation from the mother. Even now he genuinely believes he managed that situation appropriately. He has no appreciation of the repercussions for others. He deprived a four month old child of her mother until forced by Court order to restore their interaction, he treated D like a leper even though she then regarded him as a father-figure,[60] and he blamed the mother for the incident between D and J when it was beyond her control – all because he thought he was acting protectively of the child.[61]

    [60] Exhibit F1

    [61] Family Report, para 54

12. The father insisted he was “his own man” and made his own decisions about how he should respond to the incident in December 2014. If that is so, he bears sole responsibility for the lack of insight he demonstrated. If, as the mother sought to imply, he was unduly influenced by the paternal grandmother or other members of the paternal family, it is instead demonstrative of the father being in their thrall and unable to make important decisions independently.

13. Irrespective, the father’s attitude about D and the mother is immovably fixed. Nothing was liable to persuade him to consider alternate perspectives. He told the Family Consultant he could not be re-assured about the child’s safety by anything other than the child reaching sufficient maturity to report any abuse she suffers.[62] During cross-examination he said he could not be re-assured by anything other than a guarantee the child would be safe from sexual abuse. He did not trust the mother to provide sufficient supervision of the children, which implied his belief the mother was willing to allow the child to be sexually abused by D. He could only countenance the child seeing D under indefinite professional supervision.

    [62] Family Report, para 56

14. Regrettably, the father’s intransigence is not tempered by the paternal grandmother as she also believes he handled the incident in December 2014 competently. She will likely remain an important influence in his life. She will remain his paid carer and, even if he moves into separate accommodation as is his desire, it is his express intention to rent a house close to her home so she remains conveniently available to assist him to care for the child. The paternal grandmother is supportive of his proposal to live independently despite her continuing status as his paid carer.[63] It is difficult to logically conceive how the father will evolve as a satisfactory long-term primary carer for the child when he is deemed in need of indefinite care himself.

    [63] Paternal grandmother’s affidavit, para 9

15. The Family Consultant, politely but firmly, explained in cross-examination how the father’s own upbringing was compromised because of the dysfunction within the paternal family and how that experience now impairs the father’s ability to meet the child’s needs. She frankly concluded the father did not have sufficient parenting capacity to successfully parent the child and the paternal grandmother’s own limitations did not enable her to fill the gap.

16. The father and paternal grandmother were insistent about the father’s proven ability over the last 10 months to physically care for the child, but that insistence really missed the point. Although the father could satisfactorily feed, clothe, and house the child, the evidence established his probable inability to nourish the child emotionally and cater to her intellectual needs. Those shortcomings would not likely be overcome by his engagement in counselling, even with the best of intention.

17. The father and paternal grandmother were both asked to nominate any good qualities they believed the mother possessed. After an exceedingly long pause, the father said “I am speechless on that one”. The paternal grandmother thought the mother had none. Those answers were very revealing. Neither of them have even a vestige of respect for the mother. If the child remains resident with the father, as she matures, she will likely be attuned to the verbal and non-verbal cues of the father and paternal grandmother which would inevitably reveal their mutual disrespect for the mother. That will have an incrementally corrosive effect upon the child’s relationship with the mother. The deterioration of her relationship with the mother would be a disadvantage of her continuing residence with the father.

Conclusions and orders

1. The evidence proved that both parties perpetrated family violence and so the presumption for them to have equal shared parental responsibility for the child does not apply (s 61DA(2)(b)). They could still be allocated equal shared parental responsibility, but that would hinge on a finding that such an outcome would promote the child’s best interests.

2. The parties both contemplated they could have equal shared parental responsibility for the child when they conferred with the Family Consultant,[64] but they both resiled from that idea well before trial. Their final proposals for the residential parent to have sole parental responsibility for the child coincided with the recommendation of the Family Consultant and the proposal of the Independent Children’s Lawyer.

   [64] Family Report, paras 38, 42, 51

3. The parties are unable to communicate courteously or effectively about any issue, let alone the child, which is exemplified by their use of a communication book. The parties initially agreed to use such a book to communicate about the child. The father complained the mother stopped writing in the book,[65] but the opposite was true. The communication book used by the parties since January 2015 was tendered in evidence.[66] Every entry was written by the mother. The father never once wrote a note for the mother. If they cannot even communicate in writing they have little hope of doing so orally, particularly given their mutual dislike and distrust. There is no feasible option but to allocate parental responsibility exclusively to the party with whom the child will live.

   [65] Father’s affidavit, para 64

   [66] Exhibit M5

4. The mother should be the child’s primary residential carer. That conclusion follows from the synthesis of several important considerations, including:

   (a)The father’s continuing propensity for violent conduct, which will likely remain an ingrained feature of his psyche;

   (b)The mother’s comparatively superior improvement of parenting capacity;

   (c)The father’s rigid, concrete thinking that grossly impairs his capacity for subtlety, sensitivity, and empathy, which are important skills for insightful parenting;

   (d)The mother’s superior ability to role-model for the child the engagement in stable employment and tertiary education;

   (e)The mother’s more advanced intellectual capacity, which will be of greater assistance to the child as she progresses through infants, primary, and secondary school;

   (f)The more competent parenting support available to the mother from the maternal grandmother than is available to the father from the paternal grandmother and the paternal aunts; and

   (g)The prospect of the quality of the child’s relationship with the mother deteriorating under the strain of the paternal family’s adverse sentiments about the mother, if the child remains living with the father.

5. The father conceded in final submissions that the mother presented as “composed, intelligent, and child-focussed”, as indeed she did, but argued that such presentation belied her history. There is no doubt the mother, like the father, experienced a troubled past, but she appears to have made greater progress than him and, just as importantly, she seems to have greater potential for even more improvement.

6. Consideration must then turn to the amount of time the child should spend with the father and the nature of any conditions that should govern such visits.

7. The mother maintained she was worried about the child’s physical and psychological safety in the father’s care.[67] She elaborated that evidence in cross-examination by explaining she was dissatisfied with the diet provided by the father to the child, her perception of the father’s failure to dress the child appropriately for the ambient temperature and to seek medical attention for the child when necessary, and her worry about the child’s exposure to the father’s aggression.

   [67] Mother’s affidavit, para 102

8. The Family Consultant also expressed some concern about the child’s diet and her susceptibility to constipation, but there was no evidence at all the child was anything other than physically healthy. The mother’s willingness to seek medical attention for the child more readily than the father and to dress the child differently is nothing more than a variation in parenting style. It is not an objectively valid basis for criticism of the father’s competence as a parent. The father’s tendency for aggression has already been addressed and those findings need not be re-visited.

9. The mother said in cross-examination that her stated concerns were the motivation for proposing the time spent by the child with the father be both limited and supervised by the paternal grandmother, but the evidence fell considerably short of justification for those proposals. She must have realised as much because her final proposal was amended to allow for the child to spend substantial amounts of time with the father and to only require his supervision by the paternal grandmother when the child stayed overnight with him.

10. Ultimately, the mother proposed the child should spend almost exactly the same amount of time with the father as was proposed by the Independent Children’s Lawyer. The father did not engage that debate, since he was preoccupied advocating for his retention of the child’s residence. He proposed the child spend less time with the mother than both the mother and Independent Children’s Lawyer proposed the child spend with him.

11. Orders are made which are broadly consistent with the proposals of the mother and Independent Children’s Lawyer, which were each based upon the recommendations of the Family Consultant during cross-examination.

12. Initially, the child will spend time with the father on two separate days each week – much like as occurs between the child and mother now under the interim orders made in March 2015. After several months, when overnight stays are introduced, the child will spend two consecutive days with the father connected by the intervening overnight period. That will avoid too much fragmentation of the child’s week. For consistency, the child always visits with the father on Thursdays, as that is the day he takes her to play group with other fathers and children.

13. Visits to the father on special occasions are introduced for the child once she attains two years of age in August 2016 and, once she commences school, the regime moves to extended alternate weekends during school terms and half of school holiday periods.

14. There is no need for the child to be supervised by the paternal grandmother when she stays overnight with the father. The mother’s proposal to that effect is rejected.[68] The father’s parenting capacity is not so stunted that he cannot competently care for the child over short periods. School holiday visits are, however, confined to one-week periods.

    [68] Exhibit M14, Order 5

15. The mother’s proposal for supervision was misconceived anyway. By her own admission, she does not think the paternal grandmother is any more competent than the father to parent the child, so it was futile to propose supervision of the father and child by an adult she believes is equally incompetent. Logically, the paternal grandmother could give her no re-assurance about the child’s safety.

16. The mother lives in the Hunter Valley and the father lives in Newcastle. The distance between their homes is not great, but there is an element of difficulty exchanging the child between them. The father does not hold a driver’s licence and is presently reliant upon either public transport or the paternal grandmother to drive him.[69] The parties also need to be kept apart if possible, or alternatively, the risk of conflict between them must be minimised. The mother conceded in cross-examination that changeovers of the child were going reasonably well, which is most probably because the child is ordinarily exchanged between the mother and paternal grandmother in the father’s absence. The mother complained about the paternal grandmother’s behaviour on only one occasion, which at worst was an instance of only rudeness rather than overt conflict.

    [69] Family Report, paras 57, 62

17. Those considerations mean the venue for the child’s exchange, if not at school when the child is of school age, should be in a public place and convenient to public transport. In final submissions, the parties agreed on Suburb C Railway Station as the venue and the Independent Children’s Lawyer did not demur. They all abandoned their earlier inconsistent proposals.

18. The remaining orders were either variants of orders proposed by the parties and Independent Children’s Lawyer or could not be the subject of rational opposition.

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

I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 13 November 2015.

Associate: 

Date:  13 November 2015