Dibbs and Raven

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIBBS & RAVEN

[2016] FCCA 2319

Catchwords:
FAMILY LAW – Parenting – child aged 3 currently living with her mother and spending substantial and significant time with her father – numerous parenting concerns about the mother – order made as recommended by the family report writer that the child live with the father and spend substantial and significant time with the mother.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA

Cases cited:
Mazorski & Albright [2007] FamCA 520

Applicant:

MR DIBBS

Respondent:

MS RAVEN

File Number:

SYC 4922 of 2014

Judgment of:

Judge Terry

Hearing dates:

18, 19 and 20 April 2016

Date of Last Submission:

20 April 2016

Delivered at:

Tamworth

Delivered on:

20 May 2016

REPRESENTATION

Counsel for the Applicant:

Mr Davies

Solicitors for the Applicant:

Avern McIntyre & Co

Counsel for the Respondent:

Mr Boyd

Solicitors for the Respondent:

A W Simpson & Co

ORDERS

The parents shall have equal shared parental responsibility for the child X born (omitted) 2013 (“X”).
In the event that the parents are unable to reach a joint decision about a major long term issue, they will do all things necessary to participate in family dispute resolution with a person authorised under section 10G of the Family Law Act 1975.
X shall live with the father.
X shall spend time with and communicate with the mother as follows:
(a)Until the child commences school:
(i)in the first week after the date of these orders, and every alternate week thereafter, from 9.00am on Thursday to 4.00pm on Friday, such time to be suspended during school holidays and festive periods referred to elsewhere in these orders.
(ii)in the second week after the date of these orders, and every alternate week thereafter, from 4.00pm on Friday to 4.00pm on Sunday, such time to be suspended during school holidays and festive periods referred to elsewhere in these orders.
(iii)at Christmas in odd years, from 4.00pm on Christmas Eve until 2.00pm on Christmas Day; and in even years, from 2.00pm on Christmas Day until 4.00pm on Boxing Day.
(iv)during the Easter long weekend in even years from 4.00pm on Easter Thursday until 4.00pm on Easter Saturday and in odd years from 4.00pm on Easter Saturday until 4.00pm on Easter Monday.
(v)for one half of each school holiday period as agreed, and in default of agreement, for the first half in odd numbered years and the second half in even numbered years, such times to be suspended over the Easter and Christmas periods.
(vi)if mother’s day falls on a weekend when the children are not already spending time with the mother, then from 4.00pm on the Saturday before Mother’s Day until 4.00pm on Mother’s Day.
(b)After the child commences school:
(i)in the first week of the school term, and every alternate week thereafter, from 4.00pm to 7.00pm on Wednesday, such time to be suspended during school holidays and festive periods referred to elsewhere in these orders.
(ii)in the second week of the school term, and every alternate week thereafter, from 4.00pm on Friday to 4.00pm on Sunday, such time to be suspended during school holidays and festive periods referred to elsewhere in these orders.
(iii)at Christmas in odd numbered years, from 4.00pm on Christmas Eve until 2.00pm on Christmas Day, and in even numbered years, from 2.00pm on Christmas Day until 4.00pm on Boxing Day.
(iv)during the Easter long weekend in even numbered years from 4.00pm on Easter Thursday until 4.00pm on Easter Saturday and in odd numbered years from 4.00pm on Easter Saturday until 4.00pm on Easter Monday.
(v)for one half of each school holiday period as agreed, and in default of agreement, for the first half in odd numbered years and the second half in even numbered years, such times to be suspended over the Easter and Christmas periods.
(vi)if Mother’s day falls on a weekend when the children are not already spending time with the mother, then from 4.00pm on the Saturday before Mother’s Day until 4.00pm on Mother’s Day.
(c)Such further and other times as may be agreed between the parties.
For the purposes of spending time with X, unless otherwise agreed:
(a)the mother is to collect the child from the father at his home at the commencement of the mother’s time pursuant to these orders; and
(b)the father is to collect the child from the mother at her home at the completion of the mother’s time pursuant to these orders.
The mother’s time with X is to be suspended:
(a)if Father’s Day falls on a weekend when X is spending time with the mother, from 4.00pm on the Saturday before Father’s Day until 4.00pm on Father’s Day.
Each parent shall encourage and facilitate telephone communication between the child and the other parent whilst X is in that parent’s care as requested by X but no less frequently than once every three days.
Each parent shall keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within seven (7) days of such change.
In the event of childhood illness or emergency, the parent with whom the child is with shall contact the other parent forthwith to inform them of all relevant particulars including the nature of the illness or emergency, the treatment, the treating doctor and the location of the hospital.
Each of the parents, their servants and agents are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking, or otherwise denigrating the other party; and
(b)discussing these proceedings or the content of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the children (or any of them) and from permitting any other person to do so.
Each of the parents, their servants and agents are hereby restrained by injunction from allowing X to be in the presence or hearing of any form of domestic violence.
Both parents are permitted to liaise directly with X’s pre-school, school and sporting bodies to receive notices, information, newsletters, school reports, school photographs and any other necessary information about the child’s progress.
Each party is at liberty to attend at X’s pre-school or school for the purposes of any function or activity normally attended by parents.
Pursuant to sections 62B and 65DA of the Family Law Act 1975 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 the 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.
The mother is restrained and an injunction is granted restraining her from permitting X to be left under the supervision of Mr L under any circumstances.
Each parent is restrained from physically disciplining the child or allowing any other person to do so.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

SYC 4922 of 2014

MR DIBBS

Applicant

And

MS RAVEN

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
These proceedings concern parenting arrangements for X who is three years old.
The father lives in (omitted) and the mother in (omitted) and the two locations are about 42 kilometres or 25 minutes-odd driving distance apart. Each parent proposes that the child live predominantly with them and spend time with the other parent although the father proposed that the child spend more extensive time with the mother than she did with him.
The father sought an order for equal shared parental responsibility and the mother sought an order for sole parental responsibility.
The father’s case was that the mother lacked parenting capacity in some respects and that the child might be exposed to family violence if she remained predominantly in the mother’s care. He was also concerned about the mother’s capacity to promote a relationship between himself and the child and about the fact that she failed to comply with a written agreement not to relocate without his consent and failed to comply with an undertaking given to the court about the child coming into contact with her partner following a domestic violence incident in November 2014.
The mother’s case was that the child should remain with her. She said that the child had lived with her since separation and had a sibling in her household. She said that the child might be at risk of harm in the father’s household due to dogs kept on the premises, the father’s involvement in (omitted)-hunting and alcohol consumption at his home. She said that the domestic violence incident in in November 2014 was a one-off and that it would not be repeated.

The evidence

The evidence in the father’s case was given by himself and the paternal grandmother Ms A.
The mother gave evidence in her case as did her partner Mr C and her sister Ms C. She had another witness Ms G who was not required for cross-examination.
A family report was prepared by Ms K, a Regulation 7 Family Consultant.
The father was a good witness. He was pleasant and responsive in the witness box. He made some admissions against his interest, for example that while the mother might have sent him unpleasant text messages he had also sent unpleasant text messages to her. He was willing to reflect on his own behaviour and to suggest ways that things could be improved in the future which did not just involve the mother changing but also involved him changing.
Even before the mother went into the witness box there were issues with her evidence. For example there was clearly a domestic violence incident between herself and her partner in November 2014 but the mother did not address this at all in her affidavit. She also did not address the fact that she had unilaterally relocated with the child in July 2014 notwithstanding having signed a document stating that she would not do so without the father’s consent and she did not address the issue that she had withheld the child from spending time with the father for over two months around the time of that relocation.
The mother’s affidavit was in the main bent on attacking the father and his family and she was not at all reflective in her affidavit on the role that she had played in the conflict and about how things could be improved.
When the mother went into the witness box things took a turn for the worse for her as far as credit was concerned.
The mother’s counsel sought leave to ask the mother some questions before cross-examination began and the mother then admitted that she deliberately breached an undertaking given to the court after the domestic violence incident that she would not allow X to be brought into contact with her partner Mr C. Not only did she admit that she had deliberately breached the undertaking, she was quite blasé about it and did not exhibit the slightest bit of remorse.
Not only did the mother breach the undertaking, she lied to the family consultant about it. I do not like using the word “lied” in parenting proceedings. People often make mistakes, they emphasise things and don’t mention other things, but in this particular case, I am sorry to say that in my view the mother lied to the family report writer about whether she was complying with the undertaking at the time of the family report interviews. She even went along with a charade whereby the solicitors agreed that the undertaking could be lifted for the purpose of the family report interviews.
The mother failed to mention in her affidavit that Mr C was in fact living with her and X and it is questionable how honest she was with her solicitor about this because the father in his affidavit said that he believed the undertaking was being breached because he regularly saw Mr C’s work boots at the mother’s home always in a different spot and he was briefly questioned about this during cross-examination.
Another serious credit issue for the mother is that when she was asked in cross-examination about the information she gave police at the time of the incident in November 2014, she said that she had told the police, (and these were her words, she used the word “lie”) elaborate and extensive lies about what had happened and that in truth nothing much happened at all.
I was left with a situation where either the mother lied extensively to the police, which was her case, or - and again I really dislike using this word but I have no option in this case - where she lied to the court and I will have to decide which is correct.
It also turned out that some things in the mother’s affidavit were colourful and demonstrably untrue, for example her allegations that the father’s parents had criminal records for drink driving and assaults and that the father had been charged a number of times for drink driving and had a criminal record.
The mother’s dishonesty has serious implications for this case. It permeates everything, because in re-reading her affidavit after the hearing, I kept asking myself when considering the various allegations she made “Could this be more colourful untruths?” I have to be suspicious about her allegations concerning the father and his family when the mother has put herself forward as someone prepared to tell elaborate lies and I question how truthful she was with her lawyers initially.
Another concern which emerged from the mother’s evidence was that it was clear that she was willing to say whatever it took to achieve the outcome she wanted at a particular moment in time, and that has implications for whether I can trust her when she offers undertakings, for example about not leaving the child alone with a particular person or not physically disciplining the child or not relocating.
I have serious concerns about the mother’s evidence and I will make further comment about it later in this decision but of course as the mother’s counsel rightly pointed out in submissions, dishonest parents can be good parents so the mother’s dishonesty is not the be-all and end-all of the case.
In an ideal world two other witnesses would have been called in this matter, one being the father’s partner Ms J and the other being the mother’s partner’s father Mr L.
The mother knows Ms J. She was involved in a serious motor vehicle accident when she was 14 and people were killed in the accident. She was charged with dangerous driving causing death and pleaded guilty in the Children’s Court and was placed on a bond.
Ms J is in a relationship with the father and it would have been preferable if she had been called. However I can understand why she might have been reluctant to come to court because soon after the family report interviews the mother sent text messages to the father calling Ms J a murderer and suggesting she might kill someone else.
Mr L should also have been called. He has multiple convictions for rape in the late 1980s in (omitted). They apparently involved several different women and he served nine years in prison. He lives in (omitted), the same town as the mother and Mr C, and he has contact with X and with the mother and Mr C.
Mr C has a relationship with his father; I think he stayed with him for a little while after the November 2014 incident. Mr L visits the mother’s home and I would have thought that the mother would have called him so that at least the court could see him and hear from him and judge whether he is the same person he was in the late 1980s when he committed those offences. However he was not called.

Background

The father is 28 and the mother 25. They knew each other in high school and had an on and off relationship for about nine years. They commenced cohabitation in (omitted) in early 2012. The father owns a home in (omitted) but when he and the mother lived together they lived in rented premises in (omitted).
The father’s parents own a business called (omitted) and the father worked in that business when he and the mother lived together. The mother has a background of working in (employment omitted) and she also had some employment during the relationship.
The parties only child X was born on (omitted) 2013 and the parties separated in or about January 2014 when X was under a year old.
Either shortly prior to or at the time of separation, the mother commenced a relationship with Mr C who she had also known for many years. Mr C moved into the rented premises the mother had been sharing with the father and the mother must have fallen pregnant almost immediately because she gave birth to A in (omitted) 2014.
X lived primarily with the mother after separation but the father had always been a hands-on father and was very keen to spend time with his daughter after the relationship ended. In January 2014 the parties signed a parenting plan setting out their agreement that the father was to spend with X from 3.00pm till 7.00pm on some weekday afternoons and every second weekend. In that document the mother agreed that she would not relocate from (omitted) without the father’s written consent.
In June 2014 the mother ceased to comply with the parenting plan and the father did not spend time with X from 5 June 2014 until 26 August 2014 when court orders were made.
In her affidavit the mother said that the reason she stopped complying with the plan was that she and the father disagreed about whether the father’s afternoon time should change from 3.00pm till 7.00pm to 1.00pm till 5.00pm. She said that she wanted the earlier time because it was cold in winter and she did not want X out at night.
The father said that the mother simply became upset when he would not agree to her proposal to relocate to (omitted).
The mother did raise the issue of time on weekday afternoons with the father prior to 5 June 2014 but this does not explain why she completely stopped time from that point including weekend time. It is more likely in my view that the father is correct and that the main reason the mother stopped time was that she wished to prevail in regard to moving to (omitted).
On 23 June 2014 the father filed an application seeking parenting orders. He retained the services of the Aboriginal Legal Aid Service which is based in Parramatta and they filed the application in the Federal Circuit Court in Sydney.
In July 2014 or thereabouts the mother relocated to (omitted). The paternal grandfather lives in (omitted) and Mr C has a connection with (omitted) because his father Mr L lives there.
On 26 August 2014 interim parenting orders were made which provided for X to live with the mother and spend time with the father in a two-week cycle from 9.00am on Saturday till 4.00pm on Sunday and on one day during the week in week 1 and from 9.00am until 4.00pm two days later in week 2. It was effectively five days a fortnight, not just five nights per fortnight, arrangement.
In November 2014 there was an incident between the mother and Mr C at their home in (omitted). Police were called and Mr C was charged with assaulting the mother. The mother said that she and Mr C separated for a short period after that. The father found out about it and raised it with the court and on 21 November 2014 the mother gave a written undertaking to the court that she would not permit Mr C to come into contact with X.
On 11 December 2014 Mr C pleaded guilty to assault and without conviction, he was placed a 12 month good behaviour bond and a final Apprehended Domestic Violence Order (ADVO) was made for the protection of the mother, X and A.

The ADVO did not prevent Mr C coming into contact with the mother but it did restrain him from assaulting, intimidating or stalking her, damaging property or approaching her home within 12 hours of consuming intoxicating liquor or illicit drugs.
On 8 January 2015 the mother filed an application in a case seeking to be released from her undertaking and her application was listed for mention on 26 March 2015.
On 26 March 2015 the proceedings were transferred to the Federal Circuit Court in Newcastle and consideration of the application in a case was adjourned.
There is nothing to suggest that I was ever asked to deal with that application after the matter was transferred and I never did. At the first mention of the matter in Newcastle it was adjourned to 30 July 2015 in Armidale for mention. On 30 July 2015 the family report which had been ordered when the matter was still in Sydney was available and at the parties’ request the matter was listed for a final hearing.
Mr C attended the family report interviews with the mother and the family report writer asked the mother how she was managing the undertaking which precluded her partner from having physical contact with X and how this was affecting their relationship and Mr C relationship with A. The mother said that she had arranged for X to have video contact with Mr C one evening per week in order to retain her familiarity with him so that he was not a stranger when the undertaking was removed.
The mother did not reveal to the family report writer that she was breaching the undertaking and was allowing X to spend time with Mr C.
The family consultant was highly suspicious about whether the undertaking was being complied with. She observed X hugging and kissing Mr C. She called him “Daddy” and when Mr C left the interview room at one point X looked out the window trying to see where he had gone.
The family consultant said that it was highly improbable that the child would develop such a strong attachment to the step-parent on the basis of one short video session a week and it was highly improbable that the child would commence calling a step-parent “Daddy” on the basis of such limited communication with him. She was highly suspicious that the undertaking was being breached and she said so in her report.[1]
[1] Family Report paragraph 22
In her trial affidavit the mother said that she was still in a relationship with Mr C but said nothing about how frequently she was seeing him or under what circumstances she was seeing him.
In his trial affidavit Mr C gave a different address to the mother’s address as the place where he was living and said as follows:
I would like to move back into the house with Ms Raven and the children. I miss all of them, and watching my son grow and change every day.[2]
[2] Paragraph 12 of Mr C's Affidavit filed on 21 March 2016.
In the father’s affidavit he said he was sure that Mr C was living with the mother and it turned out that he was right because the mother admitted it when she went into the witness box. She admitted that she had been breaching the undertaking since prior to the family report interviews taking place.
The mother finally admitted the truth but she did not admit it until she was in the witness box. She did not mention it in her affidavit and Mr C affidavit was completely misleading in that regard.
In cross-examination the mother tried to suggest that she gave information to the family consultant to the effect that she was breaching the undertaking and allowing X to spend time with Mr C but I do not accept her evidence.

The parties proposals at trial

The father sought an order that he and the mother have equal shared parental responsibility for X and that she live with him in (omitted) and spend time with the mother each alternate weekend from Friday to Sunday and in the other week from 9.00am on Thursday until 4.00pm on Friday until she commenced school. This would see X spending four full days a fortnight with the mother.
The father proposed that once X commenced school, the time be each alternate weekend from Friday to Sunday and from 4.00pm to 7.00pm each alternate Wednesday and for half of the school holidays.
X turns five early in the year so I would expect she would commence school in 2018.
The father still works for (business omitted). He said that he was now a (occupation omitted) which gave him flexibility to work from home. The mother made a big issue of whether the father was still working on the (employment omitted); he is a (occupation omitted) by trade. The father said that he was not. I am not sure that it matters terribly whether he is or he isn’t.
X will attend some day care/preschool if she lives with the father which is entirely appropriate, and the paternal grandmother, who has been part of X’s life all her life, is available to assist with supervising X if the need arises. Also on the father’s proposal X will be spending two days a fortnight with the mother during the week.
The father lives with his parents in the home the father owns in (omitted). I accept his evidence that it is a three-bedroom home. The father described in his affidavit how he had a room set up for X. He has a brother and sister floating around but I accept his evidence that they are not living in his home in (omitted).
The father’s girlfriend Ms J is 23 and has a child B who is X’s age. X has contact with Ms J when she spends time with the father. If she lives with the father, she will have more contact with Ms J and at some point the father and Ms J may commence living together. I will comment later on the implications of Ms J not giving evidence.
The father said that his parents were likely to move out of his home if Ms J moved in and he gave unchallenged evidence in his affidavit about his parents having a block of land and perhaps intending to build on the block.
In addition to working in the family business the father also does occasional work as a (occupation omitted). He said that it was limited to about once every two months but there was no evidence that that was likely to be a problem in terms of him being available to care for the child.
An important aspect of the father’s life is that the paternal grandfather is from (country omitted). The paternal grandmother is of (nationality omitted) heritage but she has embraced her husband’s culture and it is very important to their whole family.
The family keep (animals omitted) and go (omitted)-hunting and given their family origin in (country omitted) that is hardly surprising. They also go (omitted)-shooting. They keep a number of dogs for (omitted)-hunting and (omitted)-shooting but the father’s evidence was that the dogs bailed animals up but did not kill them. He gave evidence that the dogs were kept in a special compound at his house.
The mother expressed concern about the dogs but they were there when the mother lived in (omitted). I am satisfied that they have a separate fenced yard and that the dogs do not pose any risk to X who also has her own fenced yard to play in.
The mother lives in (omitted) and said that she was proposing to stay there. She proposed that she have sole parental responsibility for X and that X live with her and spend time with the father each alternate week from Friday to Sunday and for half of the school holidays.
The mother is not working at present. She is living with Mr C who is a (occupation omitted). A lives with the mother and the mother has family in (omitted).
The mother said in her affidavit that she was doing a (omitted) course and she may ultimately return to some work.
Mr C grew up in (omitted). His father Mr L was arrested for rape when the father was quite a young child and subsequently served nine years in prison so Mr C did not have contact with his father growing up.
Mr L now lives in (omitted) and has contact with Mr C and with the mother and X.
In the family report there was some suggestion that Mr C might have previously used the surname Mr L and changed it to distance himself from his father. At trial the mother and Mr C both said that Mr C had always been known as Mr C. It is curious in the light of this evidence that in the mother’s application in a case seeking discharge of the undertaking she referred to “Mr C also known as Mr L.” However I cannot make a finding on the state of the evidence that Mr C has changed his surname to disguise his connection with Mr L.
The mother has recently arranged for X to commence attending day care one day a week with her sister who has early childhood qualifications.

X’s best interests

Any orders that I make about X must be orders determined by treating her best interests as the paramount consideration and s. 60CC(2) and (3) of the Family Law Act contain the matters to which I must have regard in order to determine the child’s best interests.
The primary considerations are in s.60CC (2) and the additional considerations are in s. 60CC (3) and I intend to start with the additional considerations.
The first of the additional considerations is the views of the child but X is too young to have a view about parenting arrangements. She was only two when the family report interviews took place and is only just three now.
I must have regard to the nature of the child’s relationship with each of her parents and any other relevant people.
X has regularly spent time with both of her parents since birth.
A positive interaction was observed between X and the father both at the 11F child-inclusive conference which took place early in the proceedings and at the family report interviews, and the family report writer made a number of references to that in the report.
The family report writer also considered that X had a good relationship with the paternal grandmother but pointed out that she showed a clear preference for the father.
There was no independent evidence of X’s relationship with Ms J who did not attend the family report interviews. The father said that X had a good relationship with her. He was a reliable witness and while the mother was highly critical of Ms J because of the incident when she was 14, the mother did not suggest that anything untoward had happened between Ms J and the child.
An interesting thing about the evidence is that the family consultant who conducted the child-inclusive 11F session said that X had an equally good interaction with her mother and her father, but the family report writer did not see the same thing. She said that in observation between the child and her mother, the child paid little attention to her mother and played with a variety of toys and climbed over furniture. [3]
[3] Family Report paragraph 73
The family report writer also commented on an incident where the mother asked the child to show Mr C how well she could drink from a straw. The child would not do it for the mother but was responsive to Mr C.
The family report writer also observed an incident which concerned her. She said as follows:
During the interview the subject child accidentally trod on a toy and the mother smacked her. The child turned away and walked back in the direction of her mother and almost trod on another toy. The mother grabbed the child, who then proceeded to bang a toy in a container making noise. The mother told her to stop doing that and the child did.[4]
[4] Family Report paragraph 77
The family report writer was concerned about the mother’s automatic response of smacking the child especially when the mother had sought an order that neither party physically discipline the child.
In cross-examination the mother said that the family report writer had mis-described the incident and that all she had done was give the child a light tap on a nappy. The family report writer was cross-examined about this and was adamant that what she had accurately described what happened and I prefer her evidence about that issue.
The family report writer also said as follows:
The subject child responded negatively to the mother’s request for a cuddle while spontaneously demonstrating affected toward Mr C which raises concern as to the strength of the subject child’s attachment to her mother which had previously been reported in the summary of child-inclusive conference as equal to that of the father.[5]
[5] Family report paragraph 117
The mother said the court should be cautious about reading too much into the family report writer’s observations. They were made during a limited period of time and X might have been distracted by interest in toys in the room. There is some merit in that but the family report writer observed a number of things which gave rise to a concern in her mind about the strength of the child’s attachment to her mother and I will have to take that into account.
I do note though that this issue is only one piece of the jigsaw I have to sort out. The observations of the child with the father suggest that they have a good strong relationship. The family report writer suggested that the child’s relationship with the mother was less strong but I will have to decide what I do with that in the overall scheme of things.
The family report writer said that X took no notice of A at the consultant’s rooms.[6] The mother’s commented that the child was distracted by interest in toys and therefore took no notice of her brother and this could have merit so I do not read too much into that.
[6] Family Report paragraph 74
I must consider the extent to which each party has sought to spend time with the child or make decisions about the child.
I cannot fault either parent in that regard.
I must consider the payment of child support.
The father is assessed to pay, and does pay, child support. The mother is unhappy about the amount but there was no evidence that the father was avoiding paying child support and no evidence that child support considerations had a bearing on the father making his application for X to live with him.
I must consider the likely effect on the child of a change in her circumstances including a separation from people that she has been living with or has regularly spent time with.
If the father’s application is successful there will be a change for X. She will spend less time with her mother and less time with A. She has a good relationship with her father but he works and she will spend more time in the care of a non-parent, the paternal grandmother, if there is a change of residence.
X might well adapt to that change. She has spent substantial time with the father since the parents separated apart from the break of three months when she did not spend time with him. She has a very good relationship with him and a good relationship with her paternal grandmother. She is familiar with the father’s home. She will still see the mother frequently on the father’s proposal. There is nothing to suggest that she would not adapt to the change and it is implicit in the family report writer’s recommendation that she believed that the child would successfully adapt to it.
The other change proposed was that the mother proposed a reduction in the father’s time with X from what was currently occurring.
The child is young and she may adjust to that as well unless of course there are any deficiencies in the mother’s relationship with her or in the mother’s parenting capacity.
I must consider the practical difficulty and expense of the child spending time with a parent.
The parents live about 42 kilometres apart. It is under half an hour’s driving distance and normally that sort of distance would not preclude some time during the week once the child commenced school.
I must consider the capacity of each parent to provide for the needs of the child including her emotional and intellectual needs.
The father is capable of providing for the child’s needs in terms of feeding, clothing and housing her.
The mother raised a number of concerns about the father’s household, and a major issue for her was the issue of alcohol consumption by the father and/or his family.
The mother’s evidence was that the whole family would sit down and drink, that they drank a lot of alcohol and that consumption of alcohol was a very important part of their family life. Flowing on from that was an allegation that the paternal grandmother and the paternal grandfather were alcoholics and she alleged that the paternal grandmother had a conviction for drink driving.
Nothing in the evidence at trial suggested that any of those allegations had substance.
The paternal grandmother does not have a conviction for drink driving, that much was established on the evidence, and I cannot simply accept the mother’s evidence about the level of drinking in the father’s household when she is not a witness of credit and on her own admission has told colourful untruths to people.
The father denied that alcohol consumption was a problem in his household or a problem for him and there was no independent evidence that alcohol consumption was causing a problem either for the father or in his household. There was no evidence of police call-outs to the home or neighbours calling the police. There was no evidence of alcohol consumption interfering with employment. There was simply no evidence to suggest that the father or his parents have an alcohol problem to the extent that they were not able to properly look after the child or provide a proper atmosphere or home for her.
The mother was concerned about the dogs kept at the father’s home and there are a few dogs and they are trained to assist the father and his family in (omitted)-hunting and (omitted)-hunting but I am satisfied that proper arrangements have been made for those animals to be fenced in and that they do not present a risk of harm to X.
The father and his family enjoy (omitted) hunting. It is not to everyone’s taste in 21^st century Australia but there was no evidence that there was any animal cruelty and perhaps the paternal grandfather’s ties to (country omitted) have a bearing on that whole issue.
There was no evidence that guns were unsafely stored at the father’s home.
The mother said that she was concerned about the extent to which the paternal grandmother might be involved in X’s care if she lived with the father but there are two aspects to this. First, I am satisfied that the father is devoted to his daughter and would make sure that he was the child’s primary carer and second, if he arranges for another family member to assist him when he is unavailable there is nothing wrong with that because there is no reason to suppose the paternal grandmother is an unsatisfactory person to be looking after the child.
I cannot make any findings about Ms J’s capacity to provide care for the child because I did not see and hear from her but the mother’s only complaint about her was that she had that a conviction when she was 14, nearly 10 years ago, and there was nothing in the evidence to suggest that she was an unsuitable person to be in X’s life simply because of that conviction when she was a child.
To an extent I have to trust the father’s judgment in that regard just as in every single case I hear, I know that people might form a relationship after the walk out of court. If I form a good opinion of a person as a parent and as someone who prioritises their child’s needs, and I do have that good opinion of the father, I then have to trust that they will make good choices about relationships, and so that is how I deal with Ms J not having given evidence in the case.
I am satisfied that the father has the capacity to provide for the child’s emotional needs. He showed some sensitivity in his affidavit about her need to have a relationship with the mother and he did not badmouth the mother to the family report writer.
The mother is providing good day-to-day care for X in that she is well fed and clothed and housed. The mother has recently started her in day care with her sister who has educational qualifications so it is not just a childminding placement and that is to the mother’s credit.

I do have some concerns about the mother’s parenting capacity though as evidenced in some things that happened at the family report interviews.
One was the incident I have already mentioned where the child stepped on a toy, in the family report writer’s view accidentally but it was immediately dealt with by a smack.
I am concerned that the mother withheld X from the father for nearly three months in 2014. There was no justification for that. Even if the winter afternoons were a concern for the mother, there was no justification for withholding the child on weekends, and she relocated with the child in the middle of that in breach of a written document that she had signed indicating that she would not do relocate without the father’s agreement. She later breached the undertaking she gave the court and let Mr C move back into her home.
Another concern I have about the mother is the issue of Mr L who has extraordinarily serious convictions for rape. They were a long time ago but he served nine years in prison and it is deeply concerning to me that the mother has made no inquiries about what that is about. She has a young daughter and a young son.
I am not suggesting that there is any evidence that the children are at risk of sexual harm from Mr L but I would have thought that most parents would have been concerned about their very young children coming into contact with someone with this criminal history.
Doubly concerning is that Mr C told the family report writer that he had discussed the convictions with his father after he found out about them during the course of these proceedings and that his father claimed he was set up by the police and others.[7]
[7] Family Report paragraph 67
Another concern is that the mother is living with Mr C and there is a slight question mark over the issue of Mr C’s alcohol consumption. I cannot take that very far on the evidence because it was not really explored but it was a condition of the ADVO made in December 2014 that Mr C should not go to the mother’s home if he was intoxicated, suggesting alcohol might be a problem.
In summary, I am satisfied that the father has the capacity to provide for his daughter’s needs and that I should not be worried about guns, (omitted)-hunting or alcohol consumption in the father’s home. I am also satisfied he has the capacity to provide for her emotional needs.
The mother in many respects also has the capacity to provide for the child’s needs but I am a concerned about the smacking incident at the family report interviews and about the withholding of the child for three months.
I have to consider the child’s maturity, sex and background.
The paternal grandfather is from (omitted) and the entire Dibbs family are very proud of that connection and they embrace that culture. There are family gatherings in Brisbane. The father said in his affidavit that his aunt had taught X a traditional dance and made her a traditional dress.
It is very important that X is engaged with and connected with that culture. That will certainly occur if she is embedded in the father’s family but she can also learn about that culture and learn to value it if she spends regular time with the father as long as the mother does not downplay the culture or does not downplay the importance of it.
The mother said that she had embraced the father’s culture. The evidence did not go as far as suggesting that but there was no evidence that she overtly rejected the fact that the child had this connection. In my view the problem in this case is more that the mother has some hostility to the father and his family as people not that she has some hostility to his culture.
I must consider the issue of family violence.
This is an important issue in this case.
There was no family violence in the relationship between the mother and the father and no suggestion the father was a person of any violent propensities.
There was a violent incident between the mother and Mr C which resulted in the police being called in November 2014. The mother’s case at trial was that it was a one-off incident and that not much happened at all. The police records tell a very different story.
In the family report at paragraph 113 the family report writer said as follows:
Whilst nil conviction was recorded Mr C was convicted of assault and given a Good Behaviour Bond for a period of 12 months; identified below are features of the police narrative which give rise to concern related to a potential pattern of behaviour and comments commonly associated with statements provided by victims of family violence. [8]
[8] Family Report.paragraph 113
Core aspects of the narrative are listed below which are as detailed to the police during the response to the call made by Ms Raven.
·Over the last month verbal abuse and push and shove
·“You a bad parent, pathetic mother you should be feeding ……before 11pm”
·Victim ignores accused
·Accused still cooking and yelling at victim
·On the 13/11/2014 victim was taken to hospital for gall stones and accused had to take Friday off to look after kids
·Accused yelling and upset that he is probably going to get fired because of this
·This yelling continued and victim ignored made accused more upset and he threw a fan into lounge causing a bang – woke subject child
·Victim thought this would stop accused but he got worse
·Common assault – victim was grabbed with both hands and pushed against pantry
·“why don’t you hit me” (accused asked this of victim)
·In her face nose almost touching hers
·Victim scared and angry that this was in front of her daughter – she couldn’t get away – cornered
·The victim slapped the accused on cheek to get him off her and to get away
·Victim sat on couch to settle her daughter
·Accused sat next to her and started screaming at her about him getting the sack at work and that she was cheating on him
·Victim went to kitchen to get bottle ready for baby and accused followed her trying to grab her hands and “why done (sic) you hit me”
·The victim then threatened to call the police and that made him mad
·Victim walked into room and the accused threw the fan in a rage at the bed
·It landed on the opposite end from where the subject child was laying
·Accused near front door picking up fan and threw 1.5 litre bottle of water half full hitting victim in stomach (she went to check if her stitches were opened)
·Victim picked up 3 week old baby to feed on lounge
·He sat still yelling
·Victim threatened to call police again
·Accused slapped her on left side of face (hurt)
·Baby in arms – she called police (scared)
·Arrested and charged – NIL conviction recorded 12 month good behaviour bond and ADVO
The family consultant accurately summarised what the mother told the police and on this version of events there was a prolonged incident which involved the mother being pushed and slapped, which involved yelling and screaming, which involved an incident where the mother was holding baby A and which involved an incident where a fan that was thrown landed on a mattress where the X was lying.
That is what the mother told police on the day of the incident and she also told them that over the previous month there had been verbal abuse and pushing and shoving.
In cross-examination the mother admitted that she told the police those things but she said that she lied to them.
I do not believe that the mother lied to the police. I do not believe that the mother made up an elaborate series of lies on the day of that incident. It is just not credible and in my view the mother is being untruthful with the court because she now realises how it looks that this incident occurred.
Interestingly, the mother also hid this incident from her sister who gave evidence. Her sister expressed surprise when she was informed about the incident during cross-examination.
There is also nothing about the incident in the mother’s trial affidavit. She sought to minimise it every time she was asked about it during cross-examination and it is of considerable concern that one of the things the mother said when she was talking to the family report writer about this incident was that she had provoked Mr C because it raises a concern about what might happen in the future. I do not believe that the mother provoked Mr C and it is concerning that she wants to take responsibility onto her shoulders for what happened.
Mr C has no convictions for offences of violence that this court knows of and no other incidents have come to the attention of the police since this incident in November 2014. However, I have a situation where a violent incident occurred, according to what the mother told the police it involved behaviour over an extensive period of time and it involved physical violence, children being exposed to violence and an object being thrown that could have injured a child. The mother told the police that there had been other incidents over the previous month and she is now trying to cover up, minimise, and shoulder some of the blame for what has happened.
Immediately after this incident the mother was required to sign an undertaking that she would not bring X into contact with Mr C. She must then have realised the implications of having reported the incident on her life and her relationship with Mr C and it is of concern that if anything happens like this in the future the mother might rather than reporting it and protecting her daughter attempt to cover it up.
The mother said that she had done a course at Anglicare in early 2016 addressing anger management and domestic violence but this is another aspect of the case where the mother’s untruthfulness affects what I can do with her evidence.
What has the mother learned from that? What did she tell the counsellor about what had happened between her and Mr C? Why should I believe her when she says she has learnt anything from that course that will assist her to protect X?
I must have regard to whether any family violence orders have been made.
An ADVO was made at the time Mr C pleaded guilty to assaulting the mother but it has since expired.
I must consider the attitude of each parent to the child and the responsibilities of parenthood.
The mother showed a poor attitude in unilaterally relocating and unilaterally stopping the father’s time but I have already covered that.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
The risk is much greater that further proceedings will occur if the child lives primarily with the mother than primarily with the father and that is because no matter what orders I make, the mother may not have regard to them. She may breach them and she may relocate again and there could also be further family violence.
I must consider any other relevant matter.
I am concerned about the fact that the mother does not know the details of Mr L offending and has not inquired about it and does not think she needs to.
It would have been preferable for Mr L to give some evidence. The court could then have made some assessment of him and could have decided whether the mother’s proposal about X not being left in his sole care was sufficient protection for X. The father did not seek this in his orders sought but in cross-examination he said that he did not want his child to have any time with Mr L.
I want to comment here too on the curious way the mother ran her case. After the family report interview she sent the father a text message about Ms J which said as follows:
Can you not remember that she killed people? She got away with it the first time. Why shouldn’t she try again?
It is strange that the mother made this comment about Ms J and yet knowing the charges against Mr L she shows no curiosity about his offences and no concern that he will offend again in the same way that he did previously.
Another relevant matter is that the mother has an aggressive communication style.
The family report writer talked about the mother using derogatory, vitriolic and defamatory language and there is no doubt that this is true from the little bit of it that I have seen.
In cross-examination the father admitted that he had not always been polite in communication with the mother. I was not shown an example of any text messages he had sent but there is that admission. However, there is clear evidence of the mother using derogatory, vitriolic and defamatory language. What the mother said about Ms J is an example but she has also called the paternal grandmother a slut.
I now come back to the primary considerations which are the benefit to the child of having a meaningful relationship with both of her parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
X will clearly benefit from having a meaningful relationship with both of her parents.
If I accede to the father’s proposal that the child live with him, I can be confident that she will not be prevented from having a meaningful relationship with the mother. The father is not hostile to the mother. He did not make endless complaints about her to the family report writer. He has made a very reasonable proposal about her spending extensive time with the mother if she lives with him.
The father reflected in his affidavit on his responsibility for communication difficulties which had occurred between him and the mother and about what he could do to improve things. I am satisfied that if X lives with the father she will be able to have a meaningful relationship with the mother.
I have concerns about whether that will be the case if the child lives primarily with the mother.
On the credit side for the mother, since court orders were made in August 2014, she has complied with the orders. Not only that, she has even given the father some extra time with the child although she withdrew that shortly before the trial.
The problem with the mother is partly her communication style but it is also that the family report writer assessed her as being quite hostile to the father and the evidence at the trial supports that.
At paragraph 36 of the family report, the report writer itemised all the complaints the mother made about the father and the father’s household and they are extensive, and the mother has also sometimes used extremely unpleasant language such as calling Ms J a murderer or the paternal grandmother a slut.
At the moment this does not seem to be greatly affecting X. She has a good relationship with her father and it has not been undermined by anything the mother is saying. However, as she gets older and becomes more verbal, that sort of behaviour and criticism of the father’s family – unfounded criticism I might add, because if you have a look at what the mother alleged in paragraph 36, a large amount of it is not substantiated by the evidence, so it is criticism without foundation, and criticism phrased in overblown, exaggerated ways such as calling Ms J a murderer - could affect the child’s relationship with the father if she lives primarily with the mother.
Another concern I have about the mother in regard to her willingness and ability to support the child’s relationship with the father arises out of the orders she sought at trial.
The mother sought an order for sole parental responsibility and she also sought a reduction in the time the child spends with the father and she gave no explanation for this. That is another reason why I am not as confident that if the child lived with the mother she would be able to necessarily maintain a good relationship with the father as I am that if the child lived with the father she would be able to maintain a good relationship with the mother.
I must consider the need to protect the child from abuse, neglect or family violence.
There was no evidence that the child was likely to be exposed to any of those things in the father’s home.
There has been a domestic violence incident in the mother’s home. There was no evidence that there was any domestic violence occurring at present but given that there has been more than one incident of domestic violence and that the mother has sought to minimise what occurred and to cover it up, there has to be a concern that the child could be exposed to further family violence in the mother’s home in the future. I cannot exclude that possibility.

Parental responsibility

Pursuant to s. 61DA of the Family Law Act I am required to apply a presumption that the parents should have equal shared parental responsibility for the child absent a finding that a parent or someone living with a parent has abused the child or committed an act of family violence.
The presumption does not apply because of what happened in November 2014. However I can still make an order for equal shared parental responsibility and that is the order the father asked me to make.
The father and the mother do not have a particularly good relationship. There have been some unpleasant text message exchanges between them. However major long-term decisions do not need to be made every day. The parents will both continue to be part of the child’s life no matter what decision I make and if the father seeks equal shared parental responsibility and he is willing to put the effort into attempting to communicate with the mother then it would be in X’s best interests that I make an order for equal shared parental responsibility.
It would certainly be premature to take parental responsibility away from a parent and I would not remotely consider giving the mother sole parental responsibility as she sought.
I am struggling to understand why the mother made that application to be frank, given that the father is a good father and the mother has not always made good decisions for X. She unilaterally relocated. She cut the father’s time off for three months. She is incurious about Mr L. She breached the undertaking she gave in relation to Mr C. Giving the mother sole parental responsibility would be a recipe not only the father being marginalised in the child’s life but possibly for some detrimental decisions being made about the child.
I intend to make an order that the parents have equal shared parental responsibility for X.

The recommendations in the family report

The family report writer recommended that the parents have equal shared parental responsibility and that X live with the father and spend time with the mother from Friday to Sunday and each Tuesday from 9.00am till 4.00pm and each alternate Thursday from 9.00am until 4.00pm and during the school holidays once she commenced school.
She also recommended X attended preschool, that the mother do a parenting program and have some domestic violence counselling and that there be a restraint on the child being brought into contact with Mr L.
The family report writer’s view was that X could manage a transition from the primary care of the mother to the care of the father.
However, the family report writer does not decide the case, I do. Her recommendations are simply a piece of evidence in the case.
Nevertheless I must give her recommendations weight. Her report was thorough and insightful. She was suspicious about whether X had been brought into contact with Mr C in breach of the undertaking and her suspicions proved correct. Her conclusions are carefully reasoned and her professional opinion as an independent person with social work qualifications deserves respect. She also has the advantage over me of actually having met X and seen her with her parents

Conclusion

I intend to make an order for equal shared parental responsibility and that means that I must follow a pathway through s. 65DAA of the Family Law Act but I am not going to waste a lot of time on that for this reason.

First, neither parent sought an order for equal time; second, the father’s proposal was for substantial and significant time. The mother’s really wasn’t but it seems to me that determining whether the child should spend substantial and significant time with each of her parents is not going to help me solve the problem in this matter because from the parents’ perspective, the problem is whether the child should move from living primarily with the mother to living primarily with the father. That was the problem the parents put before the court and that is the problem I have to resolve.
X has lived with her mother for the majority of the three years of her life. There are no neglect issues in the case; we do not have the Department knocking on the door wanting to take the child away. X has a sibling in the mother’s household and the children are about 18 months apart in age so they are quite close in age.
There are some question marks over the mother’s relationship with the child as observed at the family report interviews but they are not at the major end of the scale in terms of what I see in this court. The child also has a very strong bond with Mr C as evidenced by what occurred at the family report interviews.
Another advantage on the mother’s side of things is that she is not working and can care for the child during the day. If the child goes into the father’s care she will either have to attend day care or be cared for by family members for part of the time because the father is working full-time.
The mother has her failings. She engages in some very unpleasant verbal abuse of people and some of her text messages are extremely unpleasant. However, and I think this was addressed during submissions, people who behave like that can still be good parents and at present X is quarantined from that because she is too young to read text messages.
I have concerns about the mother’s proposal for the amount of time X should spend with the father but as the mother’s counsel pointed out in submissions I am not obliged to follow that. If I am concerned about the amount of time the mother offers I can make an order for more time to occur.
There is the mother’s dishonesty which is a huge issue in this case but again, as the mother’s counsel pointed out, dishonest parents can be good parents. That is blunt but true. If they are warm, loving, empathic and nurturing they can still be good parents even though they are dishonest.
However, the mother’s dishonesty has numerous implications and one is for the findings I can make about the mother’s capacity to care for X.
The mother smacked X on the day of the family report interviews for example. That is not the be-all and end-all of the case but the mother was not honest about it. She sought to give a different version of events to the court about what had happened and she sought an order that neither parent physically discipline their child but how can I trust her to comply with that order when she has breached an undertaking and breached a written agreement with the father not to relocate?
The fact that the mother unilaterally relocated after signing a written agreement that she would not do so causes me grave concern because it could mean that the mother will do that again no matter what orders I make and if she does it again it could easily lead to further proceedings.
The mother has lived in a number of different places in her adult life including (omitted) and in Queensland and the risk of her relocating again cannot be excluded, and I cannot cure that by simply making an order that she not relocate the child further away from (omitted) than she is at present when she has shown herself to be someone who simply disregards written agreements and undertakings. She has shown no compunction in doing exactly what she wants when she wants notwithstanding giving promises not to do it.
I am also concerned about the fact that the mother does not value the father and his family. She is critical of them at every turn. That is not affecting X at the moment; she is not getting into the mother’s phone and reading her text messages but as she gets older it could affect her capacity to have a relationship with her father and his family.
In summary, I am concerned about the mother in terms of the risk that she will breach court orders and the risk that X will be affected by the fairly hostile attitude she has to the father’s family as time goes by.
I am also concerned about the possibility of further family violence occurring in the mother’s home given that the mother has not been honest and open about what occurred in the past and I cannot trust the fact that she has learnt anything from domestic violence counselling. I also have a little bit of concern about some of her interaction with the child.
In summary I have numerous concerns about the mother but that does not make the case an easy one because X is only three and if she was strongly bonded to the mother and the mother was clearly the child’s primary attachment figure and she was otherwise a warm and nurturing parent, I might despite all those concerns be loath to order a significant change in her residence. However this case is not that clear-cut.
I also have to consider what the father offers the child. The child has a very warm relationship with her father and a good relationship with her paternal grandmother. She is familiar with the father’s home. She has spent significant time with him for most of her life and I am satisfied that she would adapt to a change of residence into the primary care of the father.
I do not accept that the allegations the mother made about deficits in the father’s household in terms of dogs, (omitted)-hunting, (omitted)-shooting or alcohol consumption have merit. I do not consider the child would be at risk in the father’s home and the one thing she will not be at risk of in the father’s home is exposure to family violence because that is not a home where that occurs.
The father is also much more capable of ensuring that the child has a meaningful relationship with her other parent than is the mother. He recognises the value of the mother to the child. He recognises some of his own failings in terms of communication. He made a very reasonable proposal about the amount of time the child should spend with the mother if she lived primarily with him.
In my view overall, the best interests of this child will be met by an order that she lives primarily with the father.
This will involve a change for her. She will spend less time with her mother and more with her father but she will still be spending a very significant amount of time with the mother. The risk of her relationship with the father and his family being undermined by the mother’s use of intemperate language, her failure to appreciate his good qualities and her propensity to make untruthful allegations about the failings in his family will be reduced because the child’s lived experience will be with a father who does not have those problems.
The father proposed very reasonable orders in terms of the child spending time with the mother and I am going to make orders basically in those terms. Until X commences school, so this year and next year, she will be spending three full days each week as well as an alternate weekend with the mother. She will be able to continue to have a very good relationship with her young brother in those circumstances but she will be protected from the effects of any relocation that the mother makes despite court orders being made and she will be protected from having her relationship with her father undermined by the mother’s attitude to the father and his family.
The father did not seek any orders preventing the child coming into contact with Mr C and that would not have been appropriate. There is some risk of further family violence occurring between the mother and Mr C but there has been no reported incident for some time and I cannot prevent the child from spending regular time with her mother and young brother because of that concern at the moment.
There is some risk that X might be exposed to family violence but I have to balance that risk against the importance of the child spending regular time in her mother’s household and if another incident occurs we will have to deal with that as it happens.
The issue of Mr L causes me considerable unease because of the nature of his offending and because of the failure by the mother and Mr C to make proper inquiries into that whole issue. However at the moment on the state of the evidence, I cannot do more than what the mother proposed, which is to make an order that the mother be restrained from leaving the child alone with Mr L.
I do that with a heavy heart because I cannot trust the mother to comply with that restraint but again on the state of the evidence at the moment I cannot prevent X spending significant and substantial time with her mother simply because of the issue of Mr L. The father will have to keep a watch on that situation and if anything arises then the matter may have to come back to court.
I intend to make the order the mother proposed about physical chastisement although it was at odds with what happened at the family report interviews.

I certify that the preceding two hundred and sixteen (216) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 23 September 2016

[2016] FCCA 2319

20 May 2016

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