Crelin and Font

FAMILY COURT OF AUSTRALIA

CRELIN & FONT

[2009] FamCA 618

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time

APPLICANT:

Ms Crelin

RESPONDENT:

Mr Font

FILE NUMBER:

BRC

10280

2007

DATE DELIVERED:

8 July 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

6 & 7 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms V Martinovic

SOLICITOR FOR THE APPLICANT:

Michael Heffernan, Solicitor

SOLICITOR FOR THE RESPONDENT:

Respondent appeared on his own behalf

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr G S Andrew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

IT IS ORDERED THAT

Where the child lives

That the child …born ... August 2005 live with the Mother

Parental responsibility

That the parents have equal shared parental responsibility for long term decisions with respect to the child

How the Father spends time and communicates with the child

That the father spend time and communicate with the child as agreed between the parties and failing agreement as follows:-
3.1.Until 31 December 2010 as follows:-
3.1.1.Each fortnight from 3pm Friday to 5pm Sunday commencing 10 July 2009
3.1.2.On the weekend on Father’s day from 3pm Friday to 5pm Sunday
3.1.3.By telephone once per week each Tuesday with the Mother to assist the child to initiate the call to the Father between 6.00pm and 6.30pm
3.2.From 31 December 2010:-
3.2.1.Each alternate weekend with the Father to collect the child from the child’s school at the conclusion of school on Friday and return the child immediately before the commencement of school on Monday
3.2.2.In each other week from after school Wednesday to before school Thursday with the Father to collect the child from the child’s school at the conclusion of school on Wednesday until before the commencement of school on Thursday
3.2.3.One half of all gazetted school holidays during the first half in odd years and the second half in even years.
3.2.4.By telephone once per week each Tuesday with the Mother to assist the child to initiate the call to the Father between 6.00pm and 6.30pm
3.3.For special days commencing 7 July 2009 as follows:-
3.3.1.From 4.30pm Christmas Eve until 1pm Christmas Day in odd years and from 1pm Christmas Day to 4.30pm Boxing Day in even years;
3.3.2.From 4.30pm Easter Saturday to 1pm Easter Sunday in even years and from 1pm Easter Sunday to 4.30pm Easter Monday in odd years;
3.3.3.On the child’s birthday as follows:-
3.3.3.1.From 9am to 12 noon on the child’s birthday in 2009 and 2010
3.3.3.2.From 3pm until 6pm on the child’s birthday from 2011 onwards
3.3.4.By telephone on the Father’s birthday with the Mother to assist the child to initiate the call.
The father shall not exercise time with the child on the weekend of Mothers Day.
The child shall have telephone communication with the Mother each Tuesday when the child is spending time with the Father, with the Father to assist the child to initiate the call to the Mother between 6.00pm and 6.30pm.

Calculation of school holidays

For the purposes of these orders the following shall apply:-
6.1.For the purposes of calculations school holidays shall commence at the conclusion of school time hours on the last scheduled day of school term and end on the Sunday immediately prior to the start of the school term;
6.2.The first half of gazetted school holiday period is deemed to commence at the conclusion of school time hours on the last day of the school term and conclude on the day calculated to be half of the school holiday period using the number of nights in each school holiday period and if there is an uneven number, then the child will stay with the Father for the additional night regardless of whether he is spending time with the child in the first or second half.

Changeovers

The changeover location shall be, in order of priority, as follows:-
7.1.The Child’s school on days the child is attending school;
7.2.The Y contact centre where their services are available; and
7.3.The police station closest to the mother’s residence.
That the Mother shall not be present at the school when the father is collecting or delivering the child.
The father shall not be present at the school at the times the mother is collecting or delivering the child.

Contact centre

The parties shall;
10.1.contact the Y Contact Centre (“the Contact Centre”) within 48 hours and arrange an appointment for assessment for suitability for supervision of changeovers;
10.2.attend the assessment;
10.3.comply with any appointments made by the Contact Centre for supervised changeovers;
10.4.comply with all reasonable rules of the Contact Centre; and
10.5.comply with all reasonable requests or directions of the staff of the Contact Centre.
The Contact Centre may recommend the parties or either of them to participate in a program or programs, and in that event the parties shall attend the next available program or programs as recommended by the Contact Centre.
If after assessment the parties are accepted by the Contact Centre as suitable for supervised changeovers the Father is to have contact with the child as outlined in Order 3 and such changeovers are to occur at the Contact Centre.
The mother must personally deliver and/or cause some other responsible adult known to the child and nominated beforehand in writing to the Contact Centre to deliver the child to and collect the child from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.
In the event that the Contact Centre offers supervised changeovers at different times on the days specified in Order 3 then contact shall occur at the times that are offered by the Contact Centre.
Each of the parents must pay one half of any reasonable fees for each supervised changeover and shall be solely responsible for any other fees levied against them by the contact centre.
The father must not attend the Contact Centre or its vicinity before the time with the child is to start and must promptly leave the Contact Centre and the vicinity at the time the time with the child is to end.
The period of contact provided in these orders may vary by reason of the closure of the Contact Centre’s services during school and public holiday periods, and in such event, contact shall occur at times when the services can be provided by the Contact Centre.
Where changeovers occur at a police station the following shall apply:-
18.1.The party collecting the child shall enter the police station 5 minutes before the changeover time and wait in the police station foyer
18.2.The party delivering the child shall adopt the following process :-
·    The parent shall say their final goodbyes to the child at their vehicle;
·    The parent shall accompany the child to the door to the police station foyer
·    The parent shall open the door for the child to enter the foyer
·    The parent shall have the child enter the foyer ensuring the other parent is present; and
·    The delivering parent shall leave the vicinity of the police station immediately.
18.3.Neither party shall be accompanied by another person at the time of the handovers;
18.4.Neither party shall by word or facial expression or other similar action engage the other party or seek to provoke the other party;
18.5.The parties shall not exchange insults or other harassing comments to the other; and
18.6.Neither party shall approach the other.

Information sharing

Both parties shall as soon as practicable notify the other of any serious injury or illness suffered by the child whilst in their care by telephone.
Save for emergencies, the parties shall communicate issues in relation to the child by using a communication book which shall travel with the child in a sealed envelope. The entries in that book shall be legible and courteous and relate only to the child. The father shall purchase the first book and thereafter the parties shall alternate the purchase of the books.
That should the parties change address they shall provide notice to the other that there is an intended relocation and shall provide to the other the name of the suburb in which they intend to reside.
That the parties shall keep the other informed of their telephone number and shall advise the other of any change to that number within 24 hours of the change.
That the parties be entitled to liaise with the child’s schools, day care, extra curricular activity providers, medical or health professionals about the child’s ongoing education and health needs and this order authorises the child’s schools, day care, extra curricular activity providers, medical or health professionals to speak to each of the parties regarding the child’s progress and this order is authority to obtain documents in relation to the child that a parent is entitled to receive including but not limited to school reports, order forms for school photos, school newsletters, medical reports and parent teacher interview notifications. The requesting party shall be responsible for any costs involved. This authority strictly prohibits the provision of the Mother’s address to any person.
The parties shall provide to the other within seven days a list of the child’s current schools, day care extra curricular activity providers, medical or health professionals and shall keep the other informed if there is an addition to the list within seven days.

General

Neither party shall whilst the child is in their care be under the influence of or consume illicit drugs and shall not allow the child to be exposed to other persons under the influence of or consuming illicit drugs.
That the Mother and Father shall not allow the child to come into contact with Mr T (also known as …) whatsoever either directly or indirectly.
The mother is prohibited from uttering or publishing her address, unless permitted by further order, to Mr T.
That should the Father know the whereabouts of the Mother’s address he is, unless permitted by further order, prohibited from uttering or publishing that address to any person and are further prohibited from causing any other person to utter or publish that information to any person.
The father shall not attempt to locate the Mother’s residential address.
That the Independent Children’s Lawyer be discharged after the parties have attended to intake with the contact centre and the child’s first visit with the father with changeover at the contact centre is complete.
That should the Independent Children’s Lawyer remain undischarged she may restore this matter to the list on the giving of two days notice to the parties.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Crelin & Font is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10280 of 2007

MS CRELIN

Applicant

And

MR FONT

Respondent

REASONS FOR JUDGMENT

This is the hearing of an application on the part of Ms Crelin (“the mother”) for orders in relation to a child of her relationship with the respondent Mr Font (“the father”).
The parties never married but they lived together for a period of six months continuously and thereafter on and off for a little while. As a result of the relationship a child was born, namely a daughter who was born in August 2005. The child has resided with her mother since birth save for a period of approximately one month earlier this year when she was taken into care by the Department of Child Safety.
The parties up until, according to the reports of Mr P who has done one full family report, an oral report to the Magistrates Court and a child responsive report dated 12 June 2009 but thereafter from 2006, unfortunately the arrangements for the father spending time with the child broke down and regrettably since then there has been difficulties, if I could put it that way, between the parties in relation to the father spending time with the child.
There have been at least two applications on the part of the father. There have been two applications on the part of the mother for recovery orders, last year in particular and as a general result of that the parties are now unable to communicate at all with each other and that looms particularly large in the matters that I have to consider pursuant to the provisions of s 60CC.
Regrettably in this type of case it is unfortunate that I have to decide on the questions of credit and have to, in effect, attack the respective personalities of the parties. I loathe doing that. I do not think it is fair to the parties or to the children since the parties do require to have continued contact in some form or other with each other for the rest of their lives or the rest of the children’s lives until they leave or make up their own minds and it ill behoves a Judge who is not, and in this case I emphasise, particularly informed about all the necessary facts in relation to the parties and to the welfare of the child and he is put in the invidious position of having to decide the matter, as I said, with perhaps not sufficient information.
I emphasise that because there is in one area in particular. The father has unfortunately been forced into the position of having to appear for himself. He has no experience in this field. He has little or no idea as to the relevant information that is necessary to be put before this Court. I say “information” because Division 12A of the Act has indicated to us that evidence is no longer necessary in cases of this nature and the rules of evidence do not apply so therefore I will refer to it as information.
In particular I referred, as he is aware, to the emails that he has informed the Court of which, in themselves, I thought would be of great importance. Regrettably the manner of his putting them before me, notwithstanding the rules of evidence do not apply, did not allow me to place that much emphasis upon them. I do not say that they were crucial but they were of importance.
Other matters should have been necessary to be emphasised. One is the mother’s aboriginality. I am directed by our political masters that I have to consider a child’s aboriginality in particular under the provisions of s 60. That was not touched upon and the only reason of course that I would come to know that the mother was aboriginal, in effect, was because Mr P told me so in his report. She seems to have some affiliation with a tribe in Katherine, I assume it is Katherine in the Northern Territory. We had no evidence of that. She comes from the north. She grew up north of Townsville or somewhere of that nature. She comes from the north, she does not know her father and I now have to delve into the personalities and the histories of the parties.
The mother has had a most chequered career. She was, and I still have some doubts as to whether she still is, a drug addict. She was injecting, as I understand, intravenously ice. She was smoking marijuana. She was with particularly one Mr R, involved in a most acrimonious and domestically violent relationship which sounds to me as though it was empowered primarily by the addiction to drugs and perhaps to a lesser extent alcohol.
She is the mother of four children to, I think, three different fathers. The two eldest children D and S were the result of a relationship with a man who has committed suicide. K is the result of the union with this Mr R to whom I have referred. The subject child is the result of the union between herself and Mr Font and then subsequent to that, and this of course is the lynch pin perhaps of the whole case, we do come across Mr T who is clearly a coward and a bully of the first instance.
This matter blew up again last year and Mr P, a well known family consultant, was required to do a report which he did, in relation to the matter and he emphasised in that full report in particular the chequered career of the mother and his concerns in relation to her, shall we say, and I use this if possible in the most inoffensive way I could, offending again; that is, these domestic violent relationships which she seems to remove herself from and then roll into another one.
It appears as though from Mr P’s evidence that Mr R was not the first, that for a period of 10 years he has indicated from documents which he has seen, that she has been involved in violent relationships with men. They may be shorter or longer duration. Once again I was not informed of this and I do not know what they were like but we do know that she has had two "lulu’s", Mr R and Mr T.
Mr P was concerned, see p 56 of the report of 27 October 2008, initially about this and he says:
“My concern lies in the area of her vulnerability to illicit drug use and misuse of alcohol.”
“After reading the subpoenaed material I am prepared to attribute some of her earlier mistakes in this respect to her being young and impressionable.”
He also touches upon - and I may not be able to put my hands upon this immediately, his concern that she will in fact become involved, notwithstanding the fact at that time Mr T was not on the scene, that she may become involved with another violent relationship with another man.
His fears were prescient and in fact she did within, I think, one month of his giving this report and as a result I think of the report and the sense of the parties a consent order was entered into where certain parenting orders were made in relation to the child and I emphasise by consent.
So she gets into this relationship with Mr T. She becomes pregnant to Mr T and is expected to deliver the child in about a month’s time. Mr T was a disaster. Mr T has caused severe injuries to her and I refer in relation to that matter, her statement which is exhibited to her affidavit of 2 July 2009, such statement was given to the police, with a view to seeking a DVO order.
I understand that Mr T is in the remand section of one of Her Majesty’s prisons here in Queensland and has been charged with an offence of which I am once again not informed but clearly it would be as a direct result of his cowardly attacks upon this woman. He attacks with crowbars and things of this nature, stabs her with knives, then the classic domestic violent man apologises profusely and says it will never happen again and it does.
So eventually she gets rid of him but as a direct result of his cowardly attacks upon her the Department of Child Safety was satisfied that she was unable to protect the subject child who was only very young, and was even younger then, from the sight of her mother being brutally attacked by Mr T. I do not accept her statement that the child was asleep at the times. I am more than satisfied because of things which have fallen from her in particular to the Department of Child Safety and in particular to Mr P, that she was aware of what was going on and this has affected her. I refer once again to Mr P’s first report where she was quiet and reserved, withdrawn, did not exhibit the type of personality that one would expect of a child of her tender years. That has changed to a certain extent.
The child was taken away from the mother by the Department of Child Safety for a period of one month. During that time the father was able to see the child on some occasions and here comes the most important part for both the parties: the child was affeared, it is clear on the evidence and the information given to me by Mr P, the child was affeared that she would be removed from her mother.

Regrettably it may be that the father, perhaps acting as he thought in the interests of the child and trying to support her in a very difficult situation, indicated to her that she might not be going back to her mother or words to that effect, but that is what she felt and as a result of that she exhibited extreme signs of distress as has been particularised by Mr P.
The child was placed back in the mother’s possession, but this is not the first child that she has had withdrawn from her either by the Department of Child Safety or otherwise. Once again, the information is not clear but K, the child of Mr R, was, when about one month old, removed from her possession, either by the Department of Child Safety or by the efforts of Mr R and placed in the care and possession of Mr R’s mother, that is the paternal grandmother in Brisbane. This was what I understand with the imprimatur of approval of the Department of Child Safety and the child has remained there ever since.
The boy, the eldest boy, as a result, it appears, of the attitude of Mr T towards the mother and towards himself, left the mother and went to reside with his grandmother in Townsville. The tension in that household must have been dreadful and it is said by the father not only that she is a drug addict and she is affected by excessive consumption of alcohol, but that she has failed to protect her child from the vicious and cowardly attacks of men with whom she has been involved. Well naturally of course, there is only one now and that is Mr T.
There has been no allegation on the part of the mother that there has been physical violence in relation to her relationship with the father but she indicated that they gave as much as they got, that there was in fact verbal abuse of each other.
What a delightful situation for a child of this child’s age who appears to be charming, reasonably intelligent, to be brought up. How could she possibly grow up to be other than emotionally distressed if she is allowed to remain in this type of atmosphere? The parties of course cannot agree, in effect, on what day of the week it is. They immediately are very aggressive if anybody suggests anything to them. I note that the mother was quite short and sharp with the father who, as I said, was appearing on his own behalf in her cross‑examination. It may be she has many reasons for it but unfortunately the parties as is so often the case in this Court, cannot put their own feelings behind those of the welfare of the child.
If, in fact, of course that was done and responsible, allegedly adult parents were able to put the welfare of the child first instead of their own selfish views, it would mean that this Court probably would not exist. However, that is why we are here, that is why we are flat out all the time. That is why I have expended a considerable amount of energy in bringing this matter on very, very speedily and if anybody complains about the speed of it I will be surprised. That perhaps is some explanation of the fact that I do feel as though I have not been adequately informed about everything that is necessary for the welfare of the child.
What has the father done wrong? And I recognise that this is a positive enquiry as was said so long ago as 1976 by Demack J, that I should look for the positive things for the child but regrettably, as a result of the position I have been put in and more particularly as a result of s 60 of the Act and the other sections dealing with the parenting provisions, I have to look at the personalities of the parties to see if, in effect, there is disentitling conduct. I do not like that phrase and I will not use it again.
The father is a very small man. He has in fact had a previous relationship with a Ms L. Ms L was called to give evidence, she is very proudly a bus driver and I was very impressed with Ms L. There is a child of that relationship, N, who is now about 12.
There was a hiccup early on in the relationship with the father and N in that there were allegations made that he in fact had sexually interfered with N. Ms L, as I have said, who gave evidence, impressed me tremendously. She said yes, she was the one who complained, yes she was very concerned, but, and this was so refreshing, but she sat down, discussed the matter with the father, discussed the matter with counsellors and took her own view and eventually she came to the conclusion that there was nothing in it and since that time the father and N have had a good relationship. She sees him almost every weekend, frequently every weekend, but definitely every other alternate weekend.
I asked the father about N’s attitude towards his size, he is a very short gentleman, and he indicated that there were no problems there. Sometimes children do get concerned about that type of thing, and may perhaps feel embarrassed about their father being much smaller than the average size in the community. He assures me that that is not the case. There does not appear to be any evidence that the subject child is in any way embarrassed by her father’s size. I will be touching upon the subject child at a later stage.
He has been criticised for, particularly in relation to the initiating application of 8 May, wherein in his application he indicates that he is going to keep the child back from the mother and he files the application before he intends to do so. As I said, that is quite funny because it is very much like a person who robs a bank and leaves his address behind. He has informed the Court or the parties that he is going to breach the order by retaining her.
I suppose in lots of ways he considered that this was the proper way of doing things. Regrettably it is not. I do not think that he should be criticised to any great extent because of his attitude towards that. He was endeavouring to do the best as he thought for his child. I emphasise that this was before the consent order of 11 November 2008 and the consent order is very full and obviously is in depth and that is quite a proper order.
Why then, should it be, as has been put forward by both Mr P and by the independent children's lawyer, I for this moment do not consider the mother’s proposition, that the child should not reside with the father, that the father should have the parenting rights of the child. It comes down basically to what concerned me to a certain extent, the evidence of Mr P.
He concedes that the mother is lacking in many of the proper parenting attitudes towards her child. She is subject to domestic violence, she will probably end up with another one I would not be surprised. Notwithstanding her protestations that she is aware of the fact that she has a predilection towards finding violent men, notwithstanding the fact that she now says that she is going to do something about it, that she is getting counselling; she said similar things last year to Mr P.
But it comes down to this, the information is supported of Mr P’s concerns: this child’s relationship with the mother, bonding with the mother, is by far the primary one. He points to the fact that when the child was mistakenly apprised of perhaps she may not go back to the mother, the signs of extreme distress of the child, soiling herself and being very, very distressed. It almost smacks of the so-called preference for a mother syndrome which had a lot of followers prior to the well-known case of Gronow.
The High Court have said in Gronow many years ago now that the factor of mother child relationship is not the be all and end all, it does not give the mother an advantage but it is a factor and an important factor to take into consideration and it appears as though as Mr P has said, with his balancing, it is a close-run thing. He is balancing it but the thing that just tips it in favour of the mother, and I say just tips it in favour – I have said before that it is a feather in the scales and I will say it again – that just tips it in favour of the mother is the fact that there is this close bond between the mother. She has not got a good track record.
The father’s track record, whilst perhaps not quite as good as everybody would hope it would be in a perfect world, I think, has treated the child in a better way than the mother has. She has not intentionally, I consider, affected the child but by some form of dependent personality has put the child in a most difficult situation with the men that she has been associated with and I say “men”, only one that the child would be aware of I would have thought and that is Mr T.
It is incumbent upon me that I take into consideration what the politicians considered was terribly important. They only found out about it in 2005 and the Court had been going for some considerable number of years prior to that and in particular I have to look at the presumption that there should be equal parenting and equal shared time.
Philosophically I find it very hard to say in every case that there should be equal time and of course the politicians have recognised that. They have set out certain matters which of course, if I am satisfied have taken place, the presumption is rebutted. Clearly in this case the presumption is rebutted. First of all by domestic violence, not perpetrated by the father upon the mother or the child but the fact that the child has been exposed to domestic violence.
Anyway, I am very strongly of the view in this case, particularly because the parties do not seem to be able to agree; they do not seem to be able to register their intent to have the contact centre at Y taken into consideration, that it would not work and it would not be in the best interests of the child if greater pressure be brought to bear upon her with her parents being unable to agree about anything.
I will however make it quite clear that I am satisfied that there should be shared parental responsibility and if necessary I am sure the independent children's lawyer will explain to the father what parental responsibility means. It means they have to agree on the bigger things of the child’s life.
Since I am satisfied that presumption in relation to shared parenting is excluded I further have to consider those matters which are set out in s 60CC. I am also of the opinion that I must decide that it is absolutely essential that the child have a meaningful relationship with both of the parties. There has been some doubt about that because since an allegation made by the mother and two notices of child abuse being filed in this Court, the father has not had contact with his daughter, has not spent time with his daughter since 26 March this year.
Those allegations, whilst they have been put forward, I must confess have not been prosecuted with any vigour whatsoever. They have been investigated by the Department of Child Safety and I have been informed from the Bar table that no documents were filed or exhibited but I have been informed that the Department of Child Safety, after investigation, is satisfied that the allegations are unsubstantiated.
The way that the mother’s case was run it gave me the impression that she is at this stage not pushing those allegations and consequently I am quite satisfied, as has been submitted by the independent children's lawyer, that I could not find that in fact the child has been interfered with by the father, nor is there any risk that the child could have been.
The mother says that as a result of these allegations or complaints made by the child, the child has not disclosed to anybody else, if my memory serves me correctly, that therefore the child should not have any time with the father save as it should be supervised.
Equally the father says as a result of the mother’s drug addiction, as a result of her inability, he says, to protect the child from exposure to physical violence, that the child should live with him and that the mother’s spending time with should be supervised.
I come back to s 60CC2(b). I have to consider the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect and family violence. This is one of the father’s strongest points. He said it is quite clear and it cannot be gainsaid that in fact the child has been exposed, that she in all probability has been affected by it and I refer to Mr P’s report, in particular last year and in the response report, where she is a little bit more reserved than he would have expected an average child of her obvious intellectual capacity and age.
He says that because of this the child should be removed from any possibility of it happening again. As I have said, and I am repeating myself, the mother has last year indicated that she was never going to do this again, to get involved, and within one month she was involved in perhaps the worst of her relationships. I have to give her the benefit of the doubt I feel that she is aware of what has taken place. She is now aware of how much this has affected the child. She is now aware how much it has affected the boy, D; she is aware that in fact it has taken her very close to her losing the child’s residing with her in future and if of course anything of this nature starts again I would expect that it would be very difficult for her to oppose any order whereby the child is removed from her. So she might consider it is a sword of Damocles hanging upon her head. She had better smarten up or the child probably will not stay with her.
I have to consider the nature of the relationship of the child with each of the child’s parents. I only refer to Mr P’s reports. Obviously the child gets on well with both parents and she in fact showed some excitement in seeing her father: I refer to the family response report of 12 June which was, according to Mr P perhaps, a delight to see since he said she has a lovely smile but does not see enough of it, but it was more obvious in June when she was going to see her father that she became excited and enjoyed the time with him.
I point out that she had not seen her father for a period of about three months before that and the only time she saw him during that monthly period when he was allowed to remove her from the foster carer’s into whose possession the child had been placed by the Department of Child Safety.
I am pleased to see that. I am also pleased to hear Mr P saying that the child should have extensive periods of time with her father and that it is unnecessary for there to be any form of supervision. I must say in passing I agree totally with him. And it is important that the child, in a way, have respite from whatever it may be in the mother’s house. She has improved. She has become aware of the difficulties that she is putting upon her child.
I do not believe that the parties are willing to facilitate and encourage a close and continuing relationship between the opposite parent and consequently it will be my order that these parties not see each other, and that they have little or no contact with each other whatsoever, so their difficulties in relationship shall not be placed upon the child’s head and the child not put into an invidious position of having to decide which way she wants to go. It is quite clear that children, if they are put in that position, are riddled with guilt as they get older and it does not advance their emotional wellbeing.
I have touched upon a child of aboriginal extraction as the child is, but of course there is no information put before me as to how close she is or the mother is in relation to that history and culture.
The other matter of course which I have to touch upon and I failed to earlier, where I said that the father unfortunately did not prosecute his case with great vigour and put sufficient information, were the photographs. The photographs which he put before me of, he says, the child, were denied as being the child by the mother. Notwithstanding the fact that the rules of evidence do not apply, I consider in a case such as this where there are signs on the child which could, could be bruises, could be signs of physical abuse upon her, were not proved according to the rules of evidence. It could have been covered, I am sure by a lawyer who would have assisted him. I do not say that was fatal to his case in any way at all but it was something which I would have liked to have had better explained.
I think that in general I have covered most of the ones which I consider are important under s 60CC. It is unnecessary, as I understand the High Court’s directions, for me to go through each one of them seriatim but only ones which I consider relevant and important.
Even so, I am sure the father, being an intelligent man unfortunately realises that I will not interfere with the child remaining with the mother at this stage. I have taken into consideration his submissions. I have also had typed out his suggested orders and I have considered them.
I am concerned that the mother may still be addicted to marijuana. She has given evidence that she takes it still but I think she said not since the New Year and I have doubts about that. Nevertheless she has the remedy in her own hands and if she does not take it, she will find out to her cost.
The child deserves the right to know her father. She deserves the right to spend as much time as is possible with him and I consider that what has been put before me by the independent children's lawyer in the draft is in all the circumstances right and proper and I do not believe that I would in any way vary that draft as put before me and in the circumstance I order as per draft supplied by the independent children's lawyer.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate:

Date:

[2009] FamCA 618

8 July 2009

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness

Jurisdiction

Remedies