DENYAN & BEATTIE

[2011] FamCA 155

FAMILY COURT OF AUSTRALIA

DENYAN & BEATTIE [2011] FamCA 155

FAMILY LAW - CHILDREN – Parental responsibility – where child’s relationship with father is not consistent – child has warm relationship with father at times and is fearful of father at other times – cross-allegations of family violence made by both parents – father does not pose risk of physical abuse to the child – no need to protect child from harm arising from family violence – mother is child’s primary carer – mother is unwilling to facilitate close relationship between child and father – mother is disagreeable to child spending time with father unless it is on her terms – intense parental conflict – sole parental responsibility allocated to the mother

FAMILY LAW - CHILDREN – with whom a child lives – intense parental conflict – child has lived with mother since birth – removal of child from primary carer would be emotionally injurious to the child – child shall live with mother

FAMILY LAW - CHILDREN – with whom a child spends time and communicates – mother proposes supervised time between child and father – mother alleges father’s alcohol consumption is excessive and causes father to be violent – father does not have a problem with alcohol consumption – low risk of father causing physical harm to the child – supervised time required to re-establish child’s relationship with the father – child to spend increasing time with the father pursuant to a staged program – paternal grandmother is the supervisor – telephone communication

FAMILY LAW - CHILDREN – mother proposes change of child’s surname – Court’s discretion – balance of factors considered – parental conflict – surname shall reflect maternal and paternal origins

Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 5, 16, 22, 36, 38, 42
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CF, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 68P(2)
Family Law Rules 2004 (Cth) rr 2.04B, 2.04D, 2.05

Chapman v Palmer (1978) FLC 90-510
Flanagan v Handcock (2001) FLC 93-074
Goode & Goode (2006) FLC 93-286
M v B [2001] FamCA 894
Marriage of Mahony & McKenzie (1993) FLC 92-408
MRR v GR (2010) 240 CLR 461
Re David (1997) FLC 92-778

APPLICANT: Mr Denyan

RESPONDENT: Ms Beattie

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

FILE NUMBER: NCC 2026 of 2009

DATE DELIVERED: 9 March 2011

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 8, 9 & 10  February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Gorton

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

Orders

1. All former parenting orders in respect of the child R (“the child”), born … April 2009, are discharged.

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

3. The child shall live with the mother.

4. Unless otherwise agreed in writing, the parties shall take all reasonable steps to ensure that the child spends time with the father as follows:

   (a)For a period of six weeks following the making of these Orders, each Monday and Thursday from 10.00 am until 12.00 noon.

   (b)For a further period of six weeks, each Monday and Thursday from 10.00 am until 2.00 pm.

   (c)Thereafter, until 30 October 2011:

   i)Each Monday from 10.00 am until Tuesday at 10.00 am, and

   ii)Each Thursday from 10.00 am until 4.00 pm

   (d)Commencing on 31 October 2011, until 15 April 2012:

   i)Each Monday from 10.00 am until Tuesday at 2.00 pm, and

   ii)Each Thursday from 10.00 am until Friday at 2.00 pm

   (e)Commencing on 16 April 2012, until the child’s commencement of school, each Monday from 10.00 am until Wednesday at 2.00 pm.

   (f)From the child’s commencement of school:

   i)During New South Wales public school terms, each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday, commencing on the first Friday of each term.

   ii)During New South Wales school holidays, except the Christmas school holidays, for the first half of such holidays in every odd numbered year, and for the second half of such holidays in every even numbered year.

   iii)During the New South Wales Christmas school holidays, from 12 January until 27 January each year.

5. For the purposes of implementation of Orders 4(f)(i) and 4(f)(ii), the New South Wales public school holidays are deemed to commence on the first day following the last day of school term, the holidays are deemed to end on the last day preceding the day upon which the child is due to return to school, and the mid point is the day halfway between those first and last days.

6. Orders 4(d), 4(e), and 4(f) are 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 odd numbered years, with the same arrangements in reverse in even numbered years.

   (b)Between 10.00 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 purpose of implementing Orders 4(a), 4(b), and 4(c) hereof:

   (a)The time spent by the child with the father shall be supervised by the paternal grandmother at any location, or in the absence of the paternal grandmother, by staff of B Contact Centre in T, NSW at that venue.

   (b)       In the event that the time is supervised by staff of B contact Centre at that venue:

   i)Each party shall satisfactorily complete any intake assessments or procedures required by B Contact Centre.

   ii)Each party shall comply with all reasonable requests and directions of B Contact Centre’s staff.

   iii)The father shall pay any costs due to B Contact Centre for use of its venue and supervisory services.

   iv)Leave is granted to the parties to provide a copy of these orders to B Contact Centre’s staff.

8. Subject to Order 7(a) hereof, for the purposes of implementing Orders 4(a), 4(b), 4(c), and 4(d), the mother shall cause the delivery and the father shall cause the collection of the child at the commencement of the time to be spent with the father at B Contact Centre, and the father shall cause the delivery and the mother shall cause the collection of the child at the conclusion of the time spent with the father at the same place.

9. For the purpose of implementing Orders 4(e) and 4(f) hereof, unless otherwise agreed in writing, the mother shall cause the delivery and the father shall cause the collection of the child at the commencement of the time to be spent with the father outside N Police Station, and the father shall cause the delivery and the mother shall cause the collection of the child at the conclusion of the time spent with the father at the same place.

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

    (a)The father:

    i)As from 16 April 2012, each Friday between 5.00 and 5.30 pm

    ii)As from the child’s commencement of school, each Wednesday when the child is living with the mother, between 6.00 and 6.30 pm,

    and for that purpose the father shall telephone the child on the telephone number provided to him by the mother, and the mother shall ensure that the child is able to receive the father’s calls on that number at that time.

    (b)The mother, as from the child’s commencement of school, each Wednesday when the child is spending time with the father, between 6.00 and 6.30 pm, and for that purpose the mother shall telephone the child on the telephone number provided to her by the father, and the father shall ensure that the child is able to receive the mother’s calls on that number at that time.

    (c)The parent with whom the child is not then staying, on the child’s birthdays, between 6.00pm and 6.30pm, and for that purpose the parent with whom the child is not staying shall telephone the child on the telephone number provided by the other parent for that purpose, and the parent with whom the child is staying shall ensure that the child is able to receive the other parent’s calls on that number at that time.

11. The Father is restrained from consuming alcohol during any period in which the child spends time with him, and also during the period of 12 hours immediately preceding such time.

12. 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.

13. The parties are restrained from causing or permitting the child to be known by any surname other than “[Beattie-Denyan]”.

14. The parties shall forthwith take all reasonable steps to ensure that the Births, Deaths and Marriages Register kept by the Registrar pursuant to the provisions of the Births, Deaths and Marriages Registration Act 1995 (NSW) is amended so as to disclose the father’s paternity of the child and the child’s surname as “[Beattie-Denyan]”, and that a fresh birth certificate issues for the child disclosing those details.

15. Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the child.

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

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

18. The mother shall:

    (a)Forthwith enrol herself to commence, and thereafter participate in and complete a post-separation parenting program approved by the Independent Children’s Lawyer, and

    (b)Provide to the father written evidence of her satisfactory completion of such post-separation parenting program within 7 days of its completion.

19. By reason of an inconsistency between some of these Orders and an existing Apprehended Violence Order, pursuant to s 68P(3) of the Family Law Act 1975 (Cth), the Registrar of the registry of the Family Court of Australia at Newcastle shall send a sealed copy of these Orders to:

    (a)The Registrars of the Local Court of NSW at N, P, and L;

    (b)       The Commissioner of the NSW Police Service; and

    (c)       The Director General of the NSW Department of Human Services

20. In the event that either party files an Application-Contravention within 12 months of the date of these Orders, alleging the other party’s contravention of these (not prior interim) Orders, then such Application-Contravention shall be listed by the Registrar, wherever possible, before Austin J.

21. Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that 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.

22. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period, or compliance with Order 18(a) hereof, whichever is the latter.

23. Costs are reserved for 28 days.

24. Any and all outstanding applications are dismissed.

Notation

A.Orders 4, 6, 10, 15, and 17 hereof are inconsistent with paragraph 7 of the interim Apprehended Violence Order made against the father in favour of the mother by the Local Court of NSW at N on 1 February 2011, in which case Division 11 of Part VII of the Family Law Act 1975 (Cth) applies and those parenting orders prevail to the extent of any inconsistency.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2026 of 2009

Mr Denyan

Applicant

And

Ms Beattie

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern parenting orders in relation to the only child of the parties who has not yet even attained the age of two years. The parties have been arguing about him since before he was born.

2. There is nothing about the child’s care, welfare and development upon which the parties can agree. Every conceivable issue is in dispute. The parties simply cannot look beyond their own interests to make rational decisions about the best interests of their child.

3. The parties were each self-represented at the time of trial, which compounded the difficulty in evaluating the material issues. Unfortunately, as the trial evolved the parties did not appear to acquire much insight into how they might effectively co-parent their child. The heat in their controversy did not abate.

Background

1. In either December 2006 or January 2007 the parties rekindled a former relationship that had existed between them, subsequently began cohabitation, and then finally separated on or about 22 or 23 January 2009.[1]

   [1] Mother’s affidavit, par 4; Father’s affidavit, pars 14-15, 23

2. At the time of their final separation the mother was heavily pregnant with the child, named R (“the child”), who was later born in April 2009.[2]

   [2] Mother’s affidavit, par 19; Father’s affidavit, par 26

3. Upon separation, the mother departed the shared home at M and went to live in a property owned by her at R. After the baby was born the mother remained living at that property until October 2010, at which time she and the baby moved to live with the maternal grandparents at Q, where they have remained ever since.[3] Apart from a period living with the paternal grandparents at W during 2010,[4] the father has remained living alone at the former shared home at M.

   [3] Mother’s affidavit, pars 18, 31

   [4] First Family Report, par 34; Second Family Report, par 7

4. For a period of more than 12 months following their separation, the state of the parties’ relationship vacillated between harmonious and volatile. That vacillation is exemplified by the parties sharing meals, spending frequent time together with the child, and conciliatory communication with one another on the one hand,[5] and having heated arguments and even violent confrontations on the other.[6]

   [5] Mother’s affidavit, pars 5-7, 20; Father’s affidavit, pars 37-46, 78, Annexure H

   [6] Mother’s affidavit, pars 8-10, 22-23, 33-35, 39-47

5. The father became disillusioned following failed attempts to negotiate a settlement with the mother and commenced proceedings for parenting orders by filing his Initiating Application in the Federal Magistrates Court on 10 August 2009. The mother filed her Response on 1 October 2009.

6. The matter was listed before a Federal Magistrate on 12 November 2009, at which time interim orders to the following effect were made by consent:

   a)The child was to live with the mother (Order 1.1).

   b)The child was to spend time with the father on three separate occasions each week for a few hours at a time, supervised by the paternal grandmother (Order 1.2).

7. It is common ground that the orders were not faithfully implemented. The mother asserted to the Family Consultant that was because the father either did not attend to see the child, or was unacceptably aggressive when he did attend.[7] The father gave unchallenged evidence that the mother precluded him from seeing the child,[8] which led him to file contravention applications. Those applications are yet to be heard and determined.[9]

   [7] Second Family Report, par 66

   [8] Father’s affidavit, par 80

   [9] Father’s affidavit, pars 81-82

8. In January 2010 the mother attended the former shared home at M in the father’s absence and took away items of personal property. The parties thereafter exchanged text messages about the mother’s alleged removal of property owned by the father.[10] The father was dissatisfied with the mother’s response and commenced legal action against her in the Local Court of NSW at Newcastle seeking orders that the mother return specified property to him.

   [10] Father’s affidavit, pars 67-70

9. The parties attended the Local Court of NSW at Newcastle on 15 April 2010 in respect of that parallel litigation. The matter was not then determined. The proceedings were adjourned for one week in the face of agreement between the parties that the father could attend the maternal grandparents’ residential property on Sunday 18 April 2010 to recover items of property.[11]

   [11] Exhibit ICL4; Exhibit ICL7

10. Although the father asserts his honest belief that he was granted a court order empowering him to enter upon the maternal grandparents’ property, even over their objection, to remove such items of property he believed to be his own,[12] that was not so. He was advised at court that there was no such order,[13] and he was instructed by police not to enter the maternal grandparents’ property.[14]

    [12] Father’s affidavit, par 71; Second Family Report, par 36

    [13] Exhibits ICL3, ICL4

    [14] Second Family Report, par 36; Exhibit ICL7

11. The father attended the maternal grandparents’ property in the company of the paternal grandparents and some other men with the intention of recovering his chattels. The maternal grandfather ordered them all to leave his property. The violent altercation that then ensued was disgraceful and should cause all concerned to be deeply embarrassed by their conduct. The parties gave quite different versions of the event, but it is common ground that the violence resulted in serious injuries. The father suffered a fractured arm and lacerations, and the maternal grandfather suffered a serious head injury and perhaps lasting disability.[15]

    [15] Mother’s affidavit, pars 39-45; Exhibit ICL7; First Family Report, intro, pars 13-28, 57

12. Each party was charged with offences by police as a consequence of that incident, which was also the genesis of an interim apprehended violence order made in favour of the mother against the father.[16]

    [16] Exhibit ICL6

13. The father was charged with assaulting the maternal grandfather, affray, unlawful entry upon enclosed lands, and remaining upon enclosed lands.[17]

    [17] Exhibit ICL1

14. The mother was charged with affray and assaulting the father with a weapon. The mother’s adult son and the maternal grandfather were also charged with offences.[18]

    [18] Mother’s affidavit, par 47

15. The parties each deny and intend to defend the charges pending against them. The charges remain listed for hearing before the Local Court of NSW.

16. The event on 18 April 2010 completely eradicated any vestige of goodwill that still existed between the parties. Their antipathy towards one another is now utterly unrestrained.

17. Some weeks later on 6 May 2010, further interim orders were made by the Court with the consent of the parties, which made provision for:

    a)The child to live with the mother (Order 2.1).

    b)The child to spend time with the father on two occasions per week for one hour at a time, subject to supervision by the Family Consultant (Order 2.2).

18. Even though those orders accorded with the mother’s wishes about the supervision of the child and father by someone other than the paternal grandmother, the mother’s compliance with the orders was unsatisfactory.[19] The mother conceded that she did not facilitate the orders on numerous occasions, allegedly because of an inability to contribute to the very modest cost of the sessions or because of a conflicting medical appointment.[20] However, the mother admitted in cross examination that she could have called upon the maternal grandparents for assistance with both funding and transport for the child if she had wanted.

    [19] Second Family Report, pars 84, 115, 117, and 119

    [20] Second Family Report, par 67

1. Because of the mother’s inconsistent compliance with the orders, the Family Consultant declined to continue her supervision of visits.[21] Accordingly, pursuant to orders made in May 2010,[22] the matter was re-listed before the Court.

   [21] Second Family Report, introduction, par 84

   [22] Order 2.2(f) made on 6 May 2010

2. On 3 August 2010, further interim orders were made by the Court, the effect of which was to confirm the orders previously made on 6 May 2010, subject to an altered requirement that the father meet all of the supervisor’s fees. The supervision by the Family Consultant of the visits between the child and father then resumed.[23]

   [23] Second Family Report, par 84

3. Some months later the Family Consultant again had cause to terminate her supervision of the time spent by the child with the father, this time because of the father’s conduct,[24] which resulted in another hearing before the Federal Magistrates Court on 3 November 2010. On that occasion the Court made further interim orders to the following effect:

   a)The child was to live with the mother (Order 1).

   b)The child was to spend time with the father on two occasions each week for several hours at a time on a gradually increasing basis (Order 2), supervised by the paternal grandmother (Order 3).

   c)Changeovers were to occur at B Contact Centre at T, NSW and the father and child were also to be supervised at that venue in the absence of the paternal grandmother as a supervisor (Orders 4-5).

   d)The father was to attend drug and alcohol counselling (Order 6).

   e)The mother was to attend upon a therapist (Order 7) and complete a post-separation parenting program (Order 8).

   f)The mother was granted additional time within which to comply with an earlier order of the Court requiring her to rectify the child’s birth certificate so as to include paternity details (Order 9).

   [24] Second Family Report, par 144

4. Thereafter, apart from two occasions, the mother flatly refused to comply with the orders requiring her to facilitate the child spending time with the father. The only two occasions upon which she complied were those on which supervision was provided by B Contact Centre instead of the paternal grandmother. The child has therefore been starved of time with the father. The mother explained her belligerence in cross examination by simply saying that she did not trust the father or paternal grandmother.

5. The father’s grievance with the mother’s attitude resulted in him filing further contravention applications, which are also yet to be heard and determined.[25]

   [25] Father’s affidavit, par 85

6. The matter was transferred by the Federal Magistrates Court to this Court, and on 13 December 2010 the matter was listed for trial on the earliest available date.

7. The trial commenced on 8 February and concluded on 10 February 2011, at which time judgment was reserved.

Proposal and evidence of the father

1. The father pressed for the orders set out within his Amended Initiating Application filed on 20 December 2010.

2. In effect, the father sought the allocation of equal shared parental responsibility to the parties and for the child to live with the parties in an equal time arrangement, sharing part of each week with each party.

3. However, the father also sought a raft of other orders dealing with diverse issues such as the annulment of his child support liability, rectification of the child’s birth certificate, designation of the surname to be used by the child, restriction of the geographical area in which the mother must live, findings about the father’s allegations of multiple contraventions by the mother, and various other miscellaneous issues of less significance.

4. In support of his application the father relied upon:

   a)His affidavit filed on 25 January 2011, which comprised 102 paragraphs. The father filed at least two affidavits on that date, but it was only the one comprising 102 paragraphs which was read at the trial.

   b)The affidavit of the paternal grandmother, Ms J, filed on 13 April 2010, which the father asserted he re-filed on 25 January 2011.

Proposal and evidence of the mother

1. The mother pressed for the orders set out within her Amended Response filed on 22 December 2010.

2. The effect of the mother’s proposal was that she have sole parental responsibility for the child and that the child live with her.

3. The mother acknowledged that the child should spend time with the father, but her proposal was very restrictive. Until the child turns five years of age in a few years time, the mother sought that the child spend only supervised time with the father at B Contact Centre for two discrete periods of three hours each week. Thereafter, the mother proposed that the child’s time be unsupervised and expanded to a period of 28 hours each alternate weekend and on some occasional special days.

4. The mother also proposed that she be able to relocate with the child to a geographically distant place for a closed period of vocational training, that the father be restrained in respect of his consumption of alcohol, and that the father be compelled to undertake and regularly inform the mother about certain forms of counselling.

5. In support of her proposal the mother relied upon her affidavit filed on 31 January 2011.

Proposal of the independent children’s lawyer

1. The Independent Children’s Lawyer began the trial representing that he was generally supportive of the recommendations made by the Family Consultant, but that his final proposal would be shaped by the evidence.

2. In final submissions the Independent Children’s Lawyer tendered a minute of the orders proposed by him.[26] Those orders reflected the advice of the Family Consultant and essentially proposed the allocation of parental responsibility solely to the mother, that the child live with the mother, and that the child spend time with the father on a graduating regime subject to supervision by the paternal grandmother for an initial period.

   [26] Exhibit ICL8

3. The Independent Children’s Lawyer relied upon the evidence of the Family Consultant, which evidence was given in two Family Reports, released on 22 April 2010 and 23 September 2010, and orally in cross examination. Although there were some relatively slight modifications to the Family Consultant’s evidence during cross examination, in the main, her oral evidence served to amplify the observations, opinions, and recommendations contained within her second Family Report. I generally accept the evidence of the Family Consultant, which was reasoned, logical, and persuasive.

Intervention of the paternal grandmother

1. As mentioned above, the father called the paternal grandmother as a witness in his case. During the course of her evidence, with the consent of the parties and the Independent Children’s Lawyer, the paternal grandmother was granted leave to intervene in the proceedings as a party.

2. The reason for the intervention was that the mother proposed that, for the next few years, the time spent by the child with the father should be supervised. The Family Consultant also recommended supervision, albeit for a considerably shorter period than that advocated by the mother. One of the available supervisory options was the paternal grandmother, because she was previously appointed as a supervisor under the interim orders made on 12 November 2009 and 3 November 2010. Even though the mother objected to supervision by the paternal grandmother and wished for the supervision to be afforded by B Contact Centre, the Family Consultant recommended use of the paternal grandmother, who was willing to accept the role. Any orders requiring the paternal grandmother’s supervision of the time spent by the child with the father would be more readily enforceable if the paternal grandmother was a party to the proceedings.

3. The paternal grandmother did not see the need for her supervision of the time spent by the child with the father but was willing to provide it if the Court made such an order. In all other respects, the paternal grandmother supported the proposals of the father.

Summary of parenting law

1. Orders in respect of children are regulated under Part VII of the Family Law Act1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon 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 it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that 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 legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.

6. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

8. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Best interests of the child – primary considerations

Section 60CC(2)(a)

1. There is no dispute about the quality of the child’s relationship with the mother, to whom the child is primarily attached. Their relationship is certainly a meaningful one for the child. It must be preserved.

2. The quality of the relationship between the child and the father became a central issue in the proceedings. In the course of her performance of the roles of both supervisor and Family Consultant, the Family Consultant had the opportunity to observe the interaction between the child and the father on many occasions. She ultimately concluded that the child’s relationship with the father was fragile.[27] The Family Consultant based that opinion on the sporadic nature of the relationship she observed over the course of several months. On some occasions the interaction between the child and father was warm and happy, but on other occasions the child demonstrated fear of the father.[28] The Family Consultant found it highly confusing because the child’s reactions to the father were unpredictable from visit to visit and the relationship did not appear to experience uniform improvement commensurate with the extra time spent together.

   [27] Second Family Report, pars 16, 151

   [28] Second Family Report, pars 37, 88-90, 122-123, 125-126, 128, 134

3. The Family Consultant said in cross examination that she could not explain the inconsistent responses of the child. That is logical. I prefer that frank concession of the Family Consultant to the explanation she proffered in her report that the child’s adverse reactions to the father are caused by his sufferance of a significant trauma that for some reason he associates with the father.[29] That theory lacks plausibility because, although it explains the child’s occasional fear reaction to the father, it does not explain the frequent episodes of happy and contented engagement between the child and father, witnessed by the Family Consultant and also depicted in video footage of the child playing with the father on a visit between them in November 2010.[30]

   [29] Second Family Report, pars 149-150

   [30] Exhibit F2

4. The father asserted that the child’s past reluctance to engage with him was explicable by the mother’s alignment of the child against him. The Family Consultant disagreed, explaining that the child was too young to be susceptible to such alignment.[31]

   [31] Second Family Report, par 39

5. Whatever the reason, the father asserted that the past reluctance of the child to readily engage with him, the occurrence of which he admitted to the Family Consultant,[32] has now dissipated. The video footage was played to the Family Consultant who conceded that it depicted the child happily interacting with the father in a more relaxed way that she had previously witnessed. That gave the Family Consultant some added comfort about the relationship, allowing for the fact that she had witnessed some quite happy times between the child and father during the course of her supervision.[33]

   [32] Second Family Report, par 38

   [33] Second Family Report, pars 95-96, 103-104, 109, 112, 113, 114, 118, 139

6. I am satisfied that the child has a meaningful relationship with the father. Although it may not presently be as important a relationship for the child as the one he enjoys with the mother, it is nonetheless important, valuable, and significant to the child and needs to be preserved.

Section 60CC(2)(b)

1. The issue of family violence also became a pivotal issue in the proceedings, even though neither party filed a Form 4 Notice of Child Abuse or Family Violence in accordance with the Family Law Rules (Rules 2.04B, 2.04D).

2. Each party made allegations against the other of committing family violence in the presence of the child, but neither made any allegation against the other of perpetrating any physical abuse directly upon the child.

3. The mother faintly alleged that the father had threatened to kill the child, causing her to apprehend that the father posed a risk of physical harm to the child, but I reject her apprehension as unreasonable. The mother’s alleged apprehension stems from two statements made by the father to her in February 2010 – one oral[34] and the other written.[35] The father’s statements do not reasonably bear the meaning attributed to them by the mother. Threatening to take the child away from the mother cannot reasonably be construed as a threat to murder the child. Nor could such a threat be reasonably construed from the father pointing out to the mother that they, the child, and their families would suffer as a consequence of the parties’ conflict. Although the mother previously mentioned during mediation her alleged concern the father would drive a car containing the child into a dam,[36] such an incident was a topical media report at the time. The father did not ever say such a thing and the mother adduced no evidence of her fear of such an occurrence, even in cross examination when she was given the opportunity to elaborate the reasons for her alleged fear.

   [34] Mother’s affidavit, par 34

   [35] Mother’s affidavit, par 36

   [36] Second Family Report, par 34

4. The father has had ample time within which to physically harm the child if that was his intention. On the contrary, his persistent attention to the preparation of this case over a long period of time in the hope of securing favourable parenting orders from the Court satisfies me that he is a parent who loves his child and respects the authority of the Court. The father presents no risk of physical abuse to the child. Of much greater concern is the family violence committed between the parties.

5. The parties each acknowledge that there was a physical altercation between them in May 2009 when the child, who was then barely one month old, was in the arms of the father. Each blames the other for the incident. The father alleged the mother punched him in the back of the head,[37] whereas the mother alleged the father assaulted her by “put[ting] [her] head through a wall”.[38] The mother and father both conceded that was the one and only event of family violence witnessed by the child.[39] Thankfully, the child did not witness the violent incident on 18 April 2010.[40]

   [37] Second Family Report, par 24

   [38] Second Family Report, par 68

   [39] Second Family Report, pars 68, 150

   [40] First Family Report, par 60

6. With the evidence of the child’s exposure to family violence limited to that single historical incident in May 2009 I am not satisfied that there is any need to protect the child from any physical or psychological harm through subjection or exposure to family violence.

7. There is no evidence that the child is at risk of any form of harm through neglect.

Best interests of the child – additional considerations

Section 60CC(3)(a)

1. The child is not yet two years of age. He cannot articulate any views about the parenting arrangements for him.

Section 60CC(3)(b)

1. The child was observed by the Family Consultant to have a close relationship with both paternal grandparents, and in particular the paternal grandmother, despite the infrequency of their interaction. The child was comfortable to use the paternal grandmother as a secure base when in one another’s company.[41]

   [41] Second Family Report, pars 11, 81, 137-138

2. There is no evidence about the nature of the relationships between the child and his half-brothers and the maternal grandparents. In the absence of evidence to the contrary, I infer that those relationships are also important to the child.

Sections 60CC(3)(c), (4)

1. The conclusion is inescapable that the mother is unwilling to facilitate and encourage a close and continuing relationship between the child and the father, unless it is on her terms. In cross examination the mother was impelled to concede that she could not point to a single thing she had done to actively encourage a relationship between the child and the father. That is a consideration of significant weight in the proceedings.

2. The mother’s unsatisfactory compliance with past interim parenting orders has already been explained. In cross examination the mother defiantly said on several occasions that she will not comply with the Court’s orders unless the time spent by the child with the father is supervised, and the supervision is afforded by some person or organisation other than the paternal grandmother. Suffice to say that the Court cannot permit a usurpation of its power by a litigant. In the event of parties not being able to reach consensus, it is for the Court to determine the parenting orders that serve the child’s best interests. The parties must then comply with the orders or face repercussions.

3. The mother did not always hold such a belligerent attitude. The mother said in cross examination it was only following the incident in April 2010 that she formed the view it was impossible for the child to spend time with the father unless supervised by a person of her choosing, and that the paternal grandmother would not be a suitable supervisor.

4. Before the event in April 2010, the mother’s attitude to the relationship between the child and father was inconsistent, but not resistant in the manner it now is. For example, text messages sent by the mother to the father and paternal grandmother show that:

   a)On 6 February 2009, before the child’s birth, the mother did not want the father to be part of their life.[42]

   b)On 19 February 2009, still before the child was born, the mother was exasperated because she perceived the father did not want to be part of their life and she wanted him to be.[43]

   c)On 21 April 2009, several days after the child’s birth, the mother welcomed visits by the father to the child.[44]

   d)On 23 April 2009 the mother was actively pursuing reconciliation with the father.[45]

   e)On 13 May 2009 the mother proposed sexual intercourse to the father.[46]

   f)On 30 May 2009 the mother could not bring herself to allow the child to see members of the paternal family, allegedly because of her devastation over the separation from the father.[47]

   g)On 15 June 2009 the mother said she had been advised to thwart visits between the child and paternal family but, although she did not intend to adhere to that advice, she was unable to find a convenient time for the visits to occur.[48]

   h)On 4 July 2009 the mother wanted the father to contact her directly, rather than through the paternal grandmother, to inquire about seeing the child.[49] On the same day, the mother advised that she would need to take legal advice about the child seeing the paternal family.[50]

   i)On 21 August 2009 the mother inquired of the father when he wanted to see the child.[51]

   j)On 9 and 18 February 2010 the mother rebuffed the father’s requests to see the child,[52] consistently with her resistance to compliance with the interim parenting orders made on 12 November 2009.[53]

   [42] Father’s affidavit, Annexure H1

   [43] Father’s affidavit, Annexure H1

   [44] Father’s affidavit, Annexure H3

   [45] Father’s affidavit, Annexure H5

   [46] Father’s affidavit, Annexure H6A

   [47] Affidavit of paternal grandmother, Annexure A

   [48] Affidavit of paternal grandmother, Annexure A

   [49] Father’s affidavit, Annexure H7

   [50] Affidavit of paternal grandmother, Annexure A

   [51] Father’s affidavit, Annexure H12

   [52] Father’s affidavit, Annexures H20, H21

   [53] Second Family Report, par 66

1. The mother’s current resistance to the development of a close and continuing relationship with the father is demonstrated in another way. Although the mother originally registered the child’s surname as “[Beattie-Denyan]”, she now wishes the child’s surname to be changed by excision of the father’s name so the child is known by the surname “[Beattie]”.[54] The mother did not actually petition the Court for an order to that effect, but if she was allocated sole parental responsibility for the child in accordance with her request she would be free to make that decision and her intention to do so is plain.

   [54] Second Family Report, pars 46, 71

2. The father discerns a pattern in the mother’s conduct. He believes that she deliberately estranges her children from their father when her relationship with the father ends. The mother changed the surnames of her older children,[55] and those children did not see their father either following the breakdown of the mother’s relationship with him.[56] The Family Consultant was alive to that as an issue for the mother,[57] and said in cross examination, with deliberate under-statement and care, that the mother did not hold the relationships of her children with their fathers in high regard.

   [55] Second Family Report, par 46

   [56] Second Family Report, par 54

   [57] Second Family Report, pars 146, 163

3. The mother’s protestations in cross examination and submissions that she wants the child to have a relationship with the father seem quite hollow. By reference to the orders proposed by the mother, she considers that the child’s relationship with the father over the next three years should consist of only supervised time at a day care centre twice a week for three hours at a time. Only when the child attains five years of age should the requirement of supervision be relaxed, and even then the child should only spend time with the father for 28 hours each alternate weekend and on occasional special days.

4. Although it was not evident from her Amended Response, the mother explained in cross examination that any change in parenting arrangements upon the child attaining five years of age was conditional upon her satisfaction about the father’s rehabilitation from alcohol dependence and suppression of his aggressive tendencies. She desires unilateral and unfettered control of the child.

5. The mother’s position is unreasonable in the face of the evidence. The child needs a much more significant presence of the father in his life than the mother proposed.

Section 60CC(3)(d)

1. The orders will require some adjustment of the child from the current situation where the mother is deliberately preventing him from spending time with the father in breach of existing orders. However, the orders are designed to introduce changes gradually and are staged at intervals with which the Family Consultant believes the child will adequately cope.

Section 60CC(3)(e)

1. The parties each desire the use of B Contact Centre as a changeover venue. The driving time between the parties’ respective residences and B Contact Centre is no more than 30 minutes. There is no practical difficulty or expense in sanctioning the use of that venue, either for changeovers or as the alternate supervisor of the child’s time with the father.

2. The later use of the police station as a changeover venue will not create practical difficulty or expense either. That venue is closer than B Contact Centre to the home of each party, and it is inherently unlikely that there will be a physical altercation between the parties at that place.

Section 60CC(3)(f)

1. The mother obviously has the capacity to provide for the child’s physical and intellectual needs. She has been doing so without complaint from the father since the child was born. The mother’s limitation is her impaired capacity to provide for the child’s emotional needs by thwarting his relationship with the father.

2. The father has the capacity to provide for the child’s emotional and intellectual needs, but his capacity to provide for the child’s physical needs is curtailed by his commitment to business. The father is self-employed and his working commitments are unpredictable, although more often concentrated on weekends.[58] That is the reason why the father seeks orders that the child spend time with him in each week between Monday and Thursday. The father presently feels unable to commit to care for the child between Friday and Sunday.

   [58] First Family Report, par 35; Second Family Report, par 8

Section 60CC(3)(g)

1. Underpinning the mother’s concern about the father was her belief that the father consumed too much alcohol, for which she asserted he needed counselling.[59] She sought orders to address that issue.[60]

   [59] Second Family Report, par 20

   [60] Amended Response, Orders 5.5, 5.6

2. The father has undoubtedly had past problems with alcohol consumption. He has numerous convictions for driving a vehicle with the prescribed concentration of alcohol in his blood, the last being recorded around two years ago.[61] However, there is no evidence from which to reasonably infer that it remains a problem for him. The father attended upon a drug and alcohol counsellor, consistently with the orders made on 3 November 2010,[62] and the counsellor found no need for the husband to be counselled.[63] The paternal grandparents also dismiss the mother’s concerns as alarmist.[64] The cautionary note sounded by the Family Consultant[65] is just that. It is sufficient that an order is made restraining the father from the consumption of alcohol at or around times that the child spends time with him. The father said in cross examination that he does not and would not consume alcohol around the child. I accept his evidence, particularly if there is an order mandating his abstinence.

   [61] Second Family Report, pars 21-22

   [62] Order 6

   [63] Father’s affidavit, Annexure U2

   [64] First Family Report, pars 49-51

   [65] Second Family Report, par 147

3. There was no other aspect of the parties’ maturity, sex, lifestyle, or background that attracted attention in the proceedings.

Section 60CC(3)(h)

1. Neither party identified themselves or the child as Indigenous Australian.

Sections 60CC(3)(i), (4)

1. The father conceded the mother’s evidence that he is currently $7,058.11 in arrears with child support payments.[66] The father has historically not paid the assessed child support payments regularly.[67] That situation is wholly unsatisfactory, even if he is challenging the latest assessment by the Child Support Agency.

   [66] Mother’s affidavit, par 49; Exhibit M1

   [67] Second Family Report, par 9

2. The father’s recalcitrance is all the more surprising given his admissions that he is “a man of wealth” who owns “two houses, three cars and…a business in a difficult industry”.[68]

   [68] Second Family Report, par 45

3. The parties tendered schedules of recent child support payments[69] which show that the father’s recent payments of child support did average about $75 per week, as he said in cross examination. The father regarded $75 per week as an appropriate amount of child support to pay, despite the nature of his assets and despite him having represented his business income as $2,900 per week only a few months ago in October 2010 when acquiring the property at M from the mother. The father glibly suggested that his real income is now only about $1,500 per week and that the sum of $2,900 was derived from a past income tax return.

   [69] Exhibits F1 and M1

4. It behoves a responsible parent to ensure that his or her child is properly maintained and to avoid accrual of arrears in child support payments. The father has not been diligent in that respect.

5. In all other respects the father demonstrates an admirable attitude to the child and to the responsibilities of parenthood. It could hardly be doubted that the father has valiantly tried to equip himself with skills to cope with the care of a young child. He has enrolled for and completed numerous parenting courses,[70] which the Family Consultant regarded as valuable educative programs. The father has complied with all interim orders of the Court despite the mother’s provocative and repeated contraventions.

   [70] Second Family Report, par 41; Father’s affidavit, par 94

6. The mother’s demonstrated attitude to the child and the responsibilities of parenthood is deficient. She refused to countenance the child having any relationship with the father other than on her terms, she failed to facilitate the child spending time with the father in accordance with the Court’s interim orders, and she failed to attend upon a therapist as ordered by the Court.[71] The mother also failed to complete a post-separation parenting program as ordered by the Court,[72] although she allegedly remains on a waiting list at Relationships Australia for admission into such a program. The mother also failed to file a copy of the child’s rectified birth certificate as ordered by the Court,[73] although she allegedly belatedly rectified the child’s birth registration details by confirming the father’s paternity with the Births Registry.

   [71] Order 7 made on 3 November 2010

   [72] Order 8 made on 3 November 2010

   [73] Order 9 made on 3 November 2010

7. Plainly, the mother’s attitude is unacceptably poor.

Section 60CC(3)(j)

1. The father alleges two discrete episodes of family violence committed upon him by the mother – when she punched him in the back of the head in May 2009,[74] and when she allegedly tried to run him down with a car in April 2010. The mother disavowed any culpability for those incidents and asserted that any violence committed by her was defensive.

   [74] Second Family Report, par 24

2. The mother asserted a long history of the father’s violent conduct towards her, which was flatly denied by the father.[75]

   [75] Second Family Report, par 28

3. The parties’ evidence is irreconcilable and the mother reacts tearfully, angrily, or defensively when challenged about the accuracy of her evidence.[76]

   [76] Second Family Report, pars 51, 65

4. The mother alleged that, during the parties’ first relationship many years before, the father was physically and verbally abusive to her.[77] The mother’s allegations are uncorroborated by contemporaneous medical or police records, and one wonders why the mother might have been attracted to the resumption of her relationship with the father in the light of such history. It is facile for the mother to simply say she accepted the father’s word that he was then more mature and ready to settle down.[78]

   [77] Second Family Report, pars 57-59

   [78] Second Family Report, par 60

5. The mother also alleged that the father was physically and verbally abusive to her both during and after their most recent relationship.[79] Curiously, despite those allegations, the mother was making a sustained effort to conceive a child with the father by IVF procedure.[80] The contradiction is striking and illogical.

   [79] Second Family Report, par 60; Mother’s affidavit, pars 5-10, 12, 33-34

   [80] Second Family Report, par 61

6. The parties finally separated in January 2009 whilst they were camping at S. They argued and the mother departed the camp to return home. The mother alleged the father savagely assaulted her during the argument, although that was denied by the father. The mother alleged the father punched her heavily in the face as many as six times, dragged her from the tent by her hair, and kicked her in the back.[81]

   [81] Second Family Report, par 63

7. It is difficult to accept the mother’s version of the event, firstly because it is implausible, and secondly because she admitted lying about the incident. The circumstances are implausible because the mother attributes the assault to her simply waking the father from his intoxicated slumber. The savagery of the alleged attack is wholly disproportionate to its alleged cause. It is also implausible because no facial injury was noted by doctors or medical staff when the mother presented herself at the hospital for treatment the following day. The attack described by the mother would almost certainly have resulted in obvious facial injury,[82] which the mother alleged in cross examination she did sustain. When the mother attended hospital she complained of only back pain and told the treating doctors and medical staff that she had sustained the injury in a fall. It was not until weeks later on 11 February 2009 that she returned to the hospital and informed the staff that her back injury was in fact attributable to domestic abuse by the father.[83] There was still no mention of any facial injury at that time.

   [82] Second Family Report, par 64

   [83] Second Family Report, par 63; Exhibit M2

8. It is possible that the mother was initially reluctant to disclose her physical abuse by the father through shame, but I am not satisfied that is the explanation in this case. The mother did not offer that as the excuse when cross examined and she has shown no reluctance in these proceedings to make gross allegations of family violence against the father. Her allegations of family violence to medical authorities have only been made since about the time of her separation from the father,[84] and are not therefore particularly corroborative. It is undeniable that the mother gave two inconsistent explanations to the hospital for her back injury. One explanation or the other must have been a lie, in which case the mother necessarily concedes she is prepared to misrepresent facts when it suits her to do so. As a consequence, I scrutinise her evidence with care before accepting it.

   [84] Exhibit M2

9. The mother alleged that the father assaulted her again on 23 February 2010, but there is no corroboration of her injuries and no evidence of the apprehended violence order to which she referred.[85]

   [85] Mother’s affidavit, par 35

10. The mother alleged there was an apprehended violence order in force against the father in April 2010, which she alleged he breached, necessitating a court appearance on 1 February 2011.[86] There is no corroborative evidence of that either. The need for the parties’ attendance at the Local Court of NSW on 1 February 2011 related to the interim apprehended violence order first made on 20 May 2010,[87] which arose out of the violent incident on 18 April 2010. There is no evidence of the existence of any apprehended violence order prior to 20 May 2010.

    [86] Mother’s affidavit, par 38

    [87] Exhibit ICL6

11. I concur with the opinion of the Family Consultant that the mother’s claims of family violence are exaggerated, but it is probable the father was volatile and verbally abusive towards the mother during their arguments.[88]

    [88] Second Family Report, par 148

12. There is a theme of intimidation that permeates the father’s behaviour when he does not receive what he demands. For example, the father:

    a)Was forcibly removed by police from the home of a former girlfriend in February 2005 following an argument involving that girlfriend and her adolescent son, at which time the father’s intoxication precluded him from being reasoned with.[89]

    b)Lodged a formal complaint with the hospital following the birth of the child in April 2009 about the rudeness to him of a nurse or midwife attending the birth.

    c)Offended a medical provider attending upon the mother at her home shortly following the birth of the child in April 2009 causing that person to make an adverse report about the father,[90]

    d)Boldly attended and entered the property of the maternal grandparents in April 2010 to recover his chattels, ignoring demands to leave, in the confident but mistaken belief he had legal authorisation to do so.

    e)Assertively requested time alone with the Family Consultant to ask her questions about her report.[91]

    f)Angrily challenged the Family Consultant and her staff about the lateness of notice to him about the cancellation of a supervised visit with the child, causing the Family Consultant to decline further supervision.[92]

    [89] Exhibit ICL2

    [90] Second Family Report, par 32; Exhibit M2

    [91] Second Family Report, par 124

    [92] Second Family Report, pars 141-144

13. The mother’s wariness of the father is understandable, but not her vehement assertions of his coercive violence.

Section 60CC(3)(k)

1. There is an interim apprehended violence order in existence, which protects the mother against the father. In breach of the Act (s 60CF) and Rules (r 2.05), neither party filed a copy or adduced a copy in evidence. The Independent Children’s Lawyer was obliged to tender a police record from documents produced on subpoena to prove the terms of the order.[93]

   [93] Exhibit ICL6

2. The order was initially made by the Local Court on 20 May 2010, following the violent incident on 18 April 2010. Since then the order has been extended on numerous occasions, most recently on 1 February 2011. The order remains interim only. The father continues to contest the appropriateness of the order.

3. The statutory threshold for the making of an interim apprehended violence order is much lower than that for the making of a final order. An interim order may be made by the court merely if it is considered appropriate to do so in the circumstances (see s 22 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)).

4. Although the order was made for the protection of the mother, by virtue of her domestic relationship with the child, the child is also a “protected person” under the order pursuant to the applicable legislation (see ss 5, 16, 36, 38, and 42 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)).

5. One part of the order is inconsistent with both the existing interim parenting orders and the various final parenting orders proposed by the parties and Independent Children’s Lawyer in these proceedings.

6. Paragraph 7 of the family violence order provides as follows:

   “The defendant must not approach or contact the protected person(s) by any means whatsoever, except through the defendant’s legal representative”

7. The “defendant” is of course the father.

8. The “protected persons” are the mother and child.

9. The order indefinitely precludes the father contacting the mother to discuss issues relevant to the child, other than through a lawyer.

10. The order precludes the child from spending any time with the father, or the father even communicating with the child. No point is served in a lawyer communicating with the child on the father’s behalf.

11. The literal terms of the apprehended violence order are untenable in the face of the proper parenting orders that this Court is enjoined to make. The orders made by the Court specify the inconsistency with the apprehended violence order and explain how those parenting orders will operate, as required by s 68P(2)(a),(b) of the Act.

12. The parents are privy to the apprehended violence order and these proceedings. The following explanation is given to the parties pursuant to the Court’s obligations under s 68P(2)(c),(d) of the Act:

    a)The parenting orders are inconsistent with paragraph 7 of the apprehended violence order because they require the mother and father to contact and approach one another, and for the child and father to approach and contact one another.

    b)It is necessary to make parenting orders which are inconsistent with paragraph 7 of the apprehended violence order in order to promote the child’s best interests.

    c)The child’s best interests are promoted by him spending time, and communicating, with the father. That will be facilitated by the mother and father being able to contact one another as the need arises, in person, by telephone, and in writing.

    d)The parenting orders set out how the child is to spend time, and communicate with, the father.

    e)The parenting orders do not require breach of paragraphs 1(a), 1(b), 1(c), or 3 of the apprehended violence order, which paragraphs are consistent with the parenting orders. The parenting orders and those paragraphs of the apprehended violence order may be consistently obeyed.

    f)Contravention of the apprehended violence order will be dealt with by prosecution in the Local Court of NSW.

    g)Contravention of the parenting orders will be dealt with under the terms of the Act.

1. It is necessary that the parenting orders be disseminated to the Local Courts of NSW at N, P and L. That is because the father mentioned each of those venues as courts which have or will deal with the apprehended violence order and the charges pending against the parties arising out of the violent incident on 18 April 2010.

Section 60CC(3)(l)

1. The orders generally conform to those proposed by the Independent Children’s Lawyer, which were consistent with the evidence of the Family Consultant.

2. The orders are not consistent with the father’s proposal, but he has previously acknowledged to the Family Consultant the need for staged re-introduction of the time spent by the child with him. The father will likely comply with the orders.

3. The orders require the mother to support an initial period of the child spending time with the father under the supervision of the paternal grandmother, and then an expanded regime of unsupervised time between them, which directly challenges the mother’s evidence that she will refuse to comply with orders of that kind.

4. If the mother exercises good judgment she will comply with the orders and further litigation is unlikely, but if the mother fulfils her threat to contravene such orders then further litigation will be inevitable. In those circumstances the mother will need to be prepared to face the distinct prospect of the child’s residential arrangements being reversed, consonant with the principles discussed in Re David (1997) FLC 92-776 at 84,574-84,575.

5. In view of the mother’s evidence about her intended defiance of orders with which she disagrees, an order is made requiring any contravention application filed by either party within the next year to be re-listed before me.

Section 60CC(3)(m)

1. The parties remained deadlocked over the issue of the child’s surname. The Family Consultant expressed no view.[94]

   [94] Second Family Report, par 168

2. The father was always keen for the child to bear his surname and, at first, the mother acquiesced. She sent a text message to the father on 10 May 2009 saying:[95]

   Babys name will be [R Denyan]. I will register him 2morrow if you are not there to sign paper u will not be on the birth certificate, yr choice (sic)

   [95] Father’s affidavit, Annexure H6

3. The following day the father arranged to meet the mother at the Births Registry as arranged. The mother cancelled the appointment. Some little while later the mother attended the Births Registry alone and unilaterally registered the child with the surname “[Beattie-Denyan]”.[96]

   [96] Second Family Report, par 71; Father’s affidavit, pars 55, 76-77

4. The father’s application for the child to be known by the surname “[Denyan]” is posited on two bases. Firstly, the mother’s original acquiescence, and secondly, the child is the last male child (at least at this point in time) who could carry on the father’s surname into succeeding generations.[97]

   [97] Second Family Report, par 46; Father’s affidavit, pars 73-75

5. The mother adduced no evidence on the issue at all. She earlier told the Family Consultant though that she wanted to change the child’s surname to “[Beattie]” because the father is doubtful of his paternity, which he wished confirmed by DNA tests.[98] I reject her reasoning. The father has conducted a prolonged campaign to ensure preservation of his relationship with the child. He would not likely have done so if he had any doubts about his paternity, or if his commitment to the child was half-hearted. The mother has no doubt about the father’s paternity of the child.

   [98] Second Family Report, par 71

6. Any decision about the name by which a child should be known is dictated by the child’s best interests. There is no onus of proof. It is for the Court to balance in its discretion the factors for and against the change (see Chapman v Palmer (1978) FLC 90-510). That decision will be informed by such factors as the degree of identification of the child with the existing surname, and any difficulties or embarrassment for the child in using the same or a different surname. The list of factors is not exhaustive, and there are many other conceivable considerations (see Flanagan v Handcock (2001) FLC 93-074 at [19-38]; M v B [2001] FamCA 894 at [35-37]; Marriage of Mahony & McKenzie (1993) FLC 92-408).

7. Some simple observations may be made. The Court is not bound by any agreement previously reached between the parties, there is no evidence to found a conclusion that the child needs to bear the surname “[Beattie]” in order to identify with his adult half-brothers, and the other reasons for change propounded by the parties reflect their own interests and not the interests of the child.

8. Although there is no evidence of the child having yet identified himself with the surname “[Beattie-Denyan]”, retention of the name “[Beattie-Denyan]” will recognise both his maternal and paternal origins, which is important in light of the high parental conflict and the available inference that the mother may be trying to expunge the paternal influence in the child’s life. The orders therefore require the child to remain known by his current surname.

Parenting orders

1. The presumption of equal shared parental responsibility is rebutted by the evidence, which proves that such an arrangement would not be in the child’s best interests.

2. Unsurprisingly, the Family Consultant recommended against the allocation to the parents of equal shared parental responsibility for the child because of their intense conflict.[99] I accept that evidence. The parties have demonstrated an inability to agree on any aspect of the child’s care, welfare, and development. The Independent Children’s Lawyer submitted, and I accept, that the toxicity of conflict in the parties’ relationship is disproportionate to events that are the supposed cause of that conflict. Nothing in the evidence gives the Court any confidence that the situation will improve in the future. The father acknowledged that his relationship with the mother was so conflicted that they could not even manage to exchange the child between them without the aid of an independent agency, such as B Contact Centre, to monitor and record changeovers.

   [99] Second Family Report, pars 157, 160

3. In the absence of an order for equal shared parental responsibility, the Court is at large with respect to the parenting orders that meet the child’s best interests.

4. The father was informed by the Family Consultant of the undesirability of an equal time parenting regime in situations of high parental conflict.[100] The issue was also debated with him in final submissions, but he chose to either ignore or trivialise the practical difficulties that such an arrangement would cause. The depth of the malevolence between the parties was evident throughout the trial, even in final submissions when the father felt the need to describe the mother as a spiteful blackmailer. It would be an untenable outcome for the child to live for equal time with the parties.

   [100] Second Family Report, pars 43, 155

5. The child needs to live predominantly with one party. I accept the evidence of the Family Consultant that the child should live with the mother and that she should have sole parental responsibility for the child.[101] The child has lived with the mother without interruption since his birth and should continue to do so, provided the mother supports the child’s relationship with the father. The parent with whom the child primarily lives should logically have sole parental responsibility for the child.

   [101] Second Family Report, pars 157-158

6. The Family Consultant was very troubled by the mother’s stated intention to blatantly breach orders providing for the child to spend either unsupervised time with the father, or time supervised by the paternal grandmother. Such action would deprive the child of his relationship with the father, which would be emotionally injurious to the child. Ordinarily, such an attitude would inform a change of residence from the mother to the father.

7. That is not presently a viable method to deal with the problem in this case for two reasons. Firstly, the father is not ready to assume the role of primary carer of the child. He only wishes to accept that role for equal time. Secondly, the child’s relationship with the father is not yet as strong as his relationship with the mother and removal of the child from the primary care of the mother at his tender age at this point in time would also be emotionally injurious to the child. The Family Consultant said that the emotional harm rendered to the child by separation from his primary attachment figure at his age is more likely to be worse than the emotional harm caused by the impairment of his relationship with the father.

8. Nevertheless, the child has a meaningful relationship with the father that needs to be strengthened and preserved. I accept the evidence of the Family Consultant that the child needs some time to re-build his relationship with the father.[102] That will be facilitated by the child’s time with the father being initially supervised. However, the evidence does not convince me that the period of supervision needs to be too prolonged. The gradual increases in the time spent by the child with the father need to be more prolonged, consistently with the evidence of the Family Consultant.[103]

   [102] Second Family Report, pars 151, 153

   [103] Second Family Report, pars 154, 164

9. Although the father would prefer otherwise, he accepted the logical desirability of an initial period of supervision, and the need to gradually increase the amount of time spent by the child with him.[104]

   [104] Second Family Report, pars 12, 40,42

10. The mother’s only stated concern about the child spending unsupervised time with the father is her belief that the father is prone to excessive consumption of alcohol, which renders him aggressive and sometimes violent.[105] However, her concern is diluted by her concessions that, in the knowledge of the father’s alleged problem with alcohol consumption and propensity for violence, she was previously content to leave her other children in the care of the father whilst she worked[106] and just prior to the child’s birth she was perfectly happy for the father to play an active role in the child’s life. The mother could not logically explain her change of heart.

    [105] Second Family Report, pars 13, 56, 69

    [106] Second Family Report, par 56

11. The mother’s only objection to the paternal grandmother as the supervisor of the time spent by the child with the father is her belief that the paternal grandmother would not appropriately intervene if the father was intoxicated or caused harm to the child.[107] The paternal grandmother gave uncontradicted evidence that she faithfully performed her previous supervisory duties and that as a supervisor she would put the child’s interests ahead of the father’s. She said she would remove the child from the father if he was intoxicated or hostile. She also said she would not tolerate the child being subjected to denigration of the mother by members of the paternal family. Even though she did not see any need for the child to be supervised with the father, she would honour her obligations if appointed as a supervisor. I accept her evidence as truthful.

    [107] Second Family Report, pars 40, 69

12. I conclude on the evidence that the prospect of the father causing physical harm to the child is extremely remote, and that the prospect of the paternal grandmother turning a blind eye to the occurrence of such abuse is even more extremely remote. The child undoubtedly has a warm and trusting relationship with the paternal grandmother. She will be an ideal supervisor. The Family Consultant agreed.[108]

    [108] Second Family Report, par 164

13. The orders require the child’s time with the father to be supervised until 30 October 2011, by which time the child will have attained the age of two and a half years, consistently with the recommendation of the Family Consultant.[109]

    [109] Second Family Report, par 164

14. The child will commence overnight visits with the father in about three months, by which time he will have attained two years of age. Again, that is consistent with the recommendation of the Family Consultant.[110] Until the supervision lapses, the child will be able to spend that overnight time with the father at the father’s home or the home of the paternal grandparents, whichever is more convenient for the supervisor.

    [110] Second Family Report, par 164

15. The overnight time increases to two nights per week when the child attains two and a half years of age and the requirement for supervision lapses.

16. After the child attains three years of age, he will begin to spend two consecutive nights per week with the father. That time concludes on Wednesday afternoon so that the child has some time with the mother, who will then be able to prepare the child to attend pre-school on Thursdays and Fridays if the mother considers that desirable.

17. Once the child commences school, his time with the father reverts to alternate weekends and school holiday periods. Although that may cause difficulty for the father’s business commitments, it is not in the child’s best interests to complicate his peer socialisation and academic progress by the continuation of a fragmented mid-week rotation. I reject the father’s submissions to the contrary. The father has several years within which to make the necessary alternate arrangements for the conduct of his business.

18. The arrangement for Christmas school holidays meets with the father’s proposal,[111] since the mother proposed that the child spend no time with the father during school holiday periods other than on special occasions. Specific and equitable provision is made for Christmas Eve, Christmas Day, Boxing Day, Mother’s Day, and Father’s Day.

    [111] Amended Application, Order 11

19. The mother was previously opposed to the use of B Contact Centre for any purpose,[112] but paradoxically sought orders in her Amended Response filed on 22 December 2010 for B Contact Centre to be used as both the changeover venue and supervisor of the time spent by the child with the father. In cross examination the mother explained that, since conferring with the Family Consultant, she had met the owner of B Contact Centre and found her quite acceptable despite her awareness of the acquaintanceship between the owner and the father. The orders therefore mandate use of B Contact Centre as a changeover venue until the child is three years of age. That will avoid the parties having to interact directly with one another for more than the next 12 months. The Family Consultant thought that would be an advantage for the child, and I agree.

    [112] Second Family Report, pars 44, 70

20. The orders abandon the use of B Contact Centre after April 2012 because of the extra travel involved in the utilisation of that venue by the parties and the child. It will be useful to retain it for some time as it is familiar to the child, and both parties desire it. Thereafter, I adopt the proposal of the Family Consultant that the parties exchange the child in proximity to a police station, which is much closer to their homes.[113]

    [113] Second Family Report, par 166

21. Provision is also made for the initial supervision of the child’s time with the father to be provided by B Contact Centre in the absence of the paternal grandmother. That will happen from time to time because the paternal grandparents periodically visit their daughter and other grandchildren in Western Australia.[114] The paternal grandmother gave evidence that will next occur between 25 March and 11 April 2011.

    [114] Second Family Report, par 79

22. The orders about telephone communication are generally consistent with the evidence of the Family Consultant.[115] The frequency of the child’s interaction with both parents over the next year obviates the need for telephone communication over that period. The child will begin such communication with the father after he attains three years of age, when he will spend five consecutive nights each week with the mother. After the child commences school, he will have telephone communication with each party once per week while he either lives or spends time with the other party during that week. For the father, the communication will be every week. For the mother, it will be when the child spends holiday time with the father. The child will also speak by telephone on his birthday with the parent with whom he is not then staying.

    [115] Second Family Report, par 167

23. The mother is required to participate in a post-separation parenting program, which should already have been completed by her in accordance with earlier orders, but for which she is apparently already enrolled and on a waiting list. The order requires her to prove her compliance to the father. I agree with the opinion of the Family Consultant that such an educative program would be beneficial for the mother and therefore advantageous for the child.[116]

    [116] Second Family Report, par 162

24. The Family Consultant also believed it would be advantageous for the mother to undertake the therapy required of her by the orders made on 3 November 2010,[117] with which she has not yet complied. She could avail herself of that therapy on a bulk billing arrangement without cost to her if she seeks it out on referral from her general practitioner. No order is made requiring her to do so because of an absence of power to make a final and unconditional order of that sort. Hopefully though, the mother will act on the Family Consultant’s recommendation.

    [117] Order 7

25. There is similarly no power to make the final and unconditional order proposed by the mother requiring the father to undertake counselling and provide the mother with monthly reports about his progress.[118]

    [118] Amended Response, Order 5.6

26. The mother proposed an order permitting her to relocate with the child to another region of NSW in the event that she is accepted into vocational training to which she is attracted.[119] However, the mother did not adduce any evidence at all about that issue. It is unknown whether the mother has applied, or is even still interested, in such a vocation. It would be absurd to make such an order when it was not the subject of any evidence or a single submission. As was submitted by the Independent Children’s Lawyer, such an order would merely serve to provide the mother with another excuse to impair the child’s relationship with the father. Accordingly, no such order is made.

    [119] Amended Response, Order 2.2

27. The father’s application for an injunction restraining the mother’s relocation within 50 kilometres of her current residence[120] is dismissed. Provided the mother complies with the parenting orders she is at liberty to live wherever she likes.

    [120] Amended Application, Order 20

28. The father’s application for the annulment of child support[121] is misconceived. No such order is made.

    [121] Amended Application, Order 6

29. The father’s vague application in respect of the mother’s past contraventions of interim orders[122] is dismissed. The father has instituted separate proceedings in respect of such contraventions and he repelled any suggestion that such proceedings be withdrawn and dismissed to bring the parties’ litigious saga to an end.

    [122] Amended Application, Order 28

30. The father’s incoherent application in relation to a recovery order connected to a pending criminal prosecution[123] is dismissed.

    [123] Amended Application, Order 29

31. The remaining orders have either been already explained or cannot be the subject of reasonable objection.

32. The Independent Children’s Lawyer foreshadowed an application for costs against both parties. Since the parties may wish to adduce some evidence about their financial circumstances to meet such an application, costs are reserved.

33. For those reasons the orders set out at the commencement of this judgment reflect the child’s best interests.

I certify that the preceding one hundred and sixty-four (164) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 9 March 2011

Associate: 

Date:  9 March 2011