Doherty and Dexter

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOHERTY & DEXTER

[2017] FCCA 255

Catchwords:
FAMILY LAW – Children – parental responsibility – parental capacity – poor co-parenting relationship – father lacks insight regarding impact of his behaviour.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61DA, 65DAA

Cases cited:

Goode & Goode (2006) FamCA 1345

Applicant:

MR DOHERTY

Respondent:

MS DEXTER

File Number:

ADC 1646 of 2014

Judgment of:

Judge Kelly

Hearing dates:

26, 27 and 28 October 2016

Date of Last Submission:

28 October 2016

Delivered at:

Adelaide

Delivered on:

23 February 2017

REPRESENTATION

The Applicant:

In person

The Respondent:

In Person

Counsel for the Independent Children's Lawyer:

Ms J Olsson

Solicitors for the Independent Children's Lawyer:

Silkwoods

ORDERS

The child X born (omitted) 2011 live with the mother who shall have sole parental responsibility for her care, welfare and development.
X spend time with the father as follows:
(a)each alternate Sunday from 10.00am until 4.00pm;
(b)commencing October 2017 the alternate Sunday time will take place from 10.00am until 6.00pm;
(c)during the April and July 2017 school holidays from 10.00am until 4.00pm on the first Wednesday, or such other day as the parties may agree;
(d)commencing in October 2017 and thereafter from 10.00am until 6.00pm on the first Wednesday of each short school holiday period, or such other day as the parties may agree;
(e)during the Christmas school holidays each year from 10.00am until 6.00pm on three additional days to be agreed between the parties or in default of agreement on the first, third and fifth Wednesdays (but not to take place on Christmas Day in any year).
X spend time with the father on special occasions as follows:
(a)from 10.00am until 6.00pm on Easter Sunday 2017 and each alternate year thereafter;
(b)from 10.00am until 6.00pm on Easter Saturday 2018 and each alternate year thereafter (noting any time otherwise due on Easter Sunday is suspended);
(c)from 10.00am until 6.00pm on Father’s Day each year;
(d)from 10.00am until 4.00pm on Christmas Day 2017 and each alternate year thereafter;
(e)from 10.00am until 4.00pm on Christmas Eve 2018 and each alternate year thereafter; and
(f)in the event X is due to spend time in the father’s care on Mother’s Day, then that visit will take place on the Saturday of the Mother’s Day weekend, in lieu of the Sunday.
X’s time spent with the father be supervised by either the paternal grandmother Ms P or Ms T.
Commencing February 2018 X’s time with the father shall be supervised for the first and last hour of each period of time spent.
All handovers take place inside the (omitted) Police Station, (omitted) with the accompanying supervisor to attend inside the police station to collect X from, and return her to the mother.
The father is restrained from entering the police station during handover and shall remain in his motor vehicle during that time.
The father ensure that he attend with the supervisor to collect and return X at the nominated handover time.
In the event the father has not arrived to collect X within 15 minutes of the commencement of any visit, then the mother is at liberty to leave and that visit is suspended.
In the event the father is more than 15 minutes late to collect or return X on two consecutive visits then the next visit is suspended.
The father shall have telephone contact with X each Thursday between 5.00pm and 5.30pm and on the occasion of X’s birthday each year, between the same times with the father to initiate the calls to the mobile phone provided by him.
The father provide the mother with a mobile telephone for such telephone communication and ensure the telephone is maintained in credit at all times.
The mother shall ensure the mobile telephone is charged, switched on and available for X to receive the telephone calls from the father and the mother is otherwise restrained from using X’s mobile telephone.
The mother notify the father of the school at which X is enrolled and thereafter notify him of any change in X’s school enrolment.
The father is thereafter permitted to obtain copies of X’s school reports, school newsletters and school photographs direct from the school at his own expense.
The mother notify the father in the event X suffers any major illness or accident requiring hospitalisation.
The father notify the mother immediately in the event X requires medical treatment or hospitalisation whilst in his care.
All communication between the parents shall occur by the paternal grandmother or Ms T contacting the mother’s friend Ms C or vice versa, by way of SMS text message noting the mobile telephone numbers for the paternal grandmother, Ms T and Ms C have already been provided to the relevant party.
The father is at liberty to attend X’s school assemblies, school concerts or sports days provided that he does not approach or attempt to communicate with the mother on all such occasions.
Each parent is restrained from:
(a)using or consuming any illegal substances whilst X is in their care and for a period of 24 hours prior to X coming into their care;
(b)abusing, criticising or denigrating the other parent and any member of that parent’s family in X’s presence and from allowing any other person to do so; and
(c)discussing any issues raised in these proceedings with X or in her presence and from allowing any other person to do so.
The father is restrained from behaving abusively or aggressively in X’s presence at any time.
The appointment of the Independent Children’s Lawyer is discharged.
All proceedings are dismissed as finalised.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1646 of 2014

MR DOHERTY

Applicant

And

MS DEXTER

Respondent

REASONS FOR JUDGMENT

Introduction

X was born on (omitted) 2011 and is just five years old. Her father was still married and living with his wife and their child during the parties’ relationship. To complicate matters further, the parties lived only a few doors apart in a small cul-de-sac. Not surprisingly, the parties were unable to maintain a co-operative parenting relationship and numerous altercations occurred between them which required police attendance.
The co-parenting dynamic has continued with allegation and counter allegation of violence and inadequate parenting for X and it is in this scenario that the Court must now determine X’s long term parenting arrangements, in accordance with her best interests.

Background

The father was born on (omitted) 1970 and is 46 years old. The mother was born on (omitted) 1968 and is 49 years old. She has three children from a previous relationship: Mr M, who was born in 1996, Mr S, who was born in 1997 and Mr A, who was born in 2000. The father also has a child from a previous relationship, A now aged 14 years old.
The parties commenced their relationship in 2004 having met as neighbours living in (omitted). The parties’ relationship was clandestine as the father continued to live with his wife Ms I and their child A. The parties’ relationship continued across a number of years but remained hidden from the father’s wife until the mother became pregnant in 2011.
The father’s marriage with Ms I ended in early 2012. His daughter A remained living with her mother but spent regular time in the father’s care and upon becoming aware that she had a baby stepsister, A also began spending time with the mother and X.
The parties give very different accounts of the parenting arrangements for X over the next two years. They agree that the father spent regular time with X at a ‘(omitted)’ group on Saturday mornings, but other arrangements were more difficult. The father says the mother became critical and hostile towards him and towards A. By contrast, the mother says the father would ‘come and go’ to suit himself, sometimes leaving her to look after A as well, which the mother was prepared to do, out of concern for A’s welfare.
What is clear from the parties’ evidence is that they were unable to agree upon a settled parenting arrangement for X. On occasions X would spend time with the father, but the parties would then find themselves in conflict. An incident occurred on 12 September 2013 when the parties were arguing. The father pushed his way into the mother’s home and removed X, accusing the mother of physically abusing X by throwing her.
The final such incident occurred on 23 January 2014 when the parties were again arguing about who should have the care of X. The father forced his way into the mother’s home and they began fighting. In the course of the altercation the mother’s son Mr A picked up a knife and threatened the father. As the altercation between the parents continued Mr A again became involved, which resulted in the father suffering a knife wound to his back. A neighbour called the police but the father was able to drive himself to the (omitted) Hospital where he was treated.
X was present during this altercation, and A was in the vicinity as well. X was just two years old at the time and it must have been a very frightening and upsetting incident to witness between her parents.
Following the police attendance, the mother was granted an Intervention Order restraining the father from contacting or communicating with her. Thereafter the father was unable to see X as she was a protected person on the interim Intervention Order. Accordingly the father filed his Initiating Application on 9 May 2014.

These proceedings

The father’s Initiating Application came before the Court on 7 July 2014. The mother was represented on this occasion but had not yet filed answering documents. In light of the existing Intervention Order naming both the mother and X as protected persons, the Court ordered that X commence spending time with the father on a supervised basis through the (omitted) Children's Contact Centre and permitted A to attend as well. The mother was ordered to file her answering documents and proceedings were adjourned to 12 September 2014.
The mother filed her answering documents on 24 July 2014. X’s supervised time with the father at the (omitted) Children's Contact Centre had not yet commenced by 12 September 2014 and accordingly proceedings were further adjourned to 4 February 2015, taking into account the ongoing delays at the Contact Centre.
The hearing on 4 February 2015 was adjourned for interim argument to 19 March 2015. On that occasion the parties consented to orders for X to spend time with the father for two hours each weekend, under the supervision of either of his brother Mr G or his sister-in-law Ms D. The parties agreed that handovers would continue to take place at the Children’s Contact Centre and the father consented to an order that he undertake a random drug screen test during the period of the adjournment. The parties also agreed to obtain a family assessment report to be undertaken by Mr T and the proceedings were adjourned to 10 August 2015.
The father was represented by solicitors for a brief period of time between February 2015 and April 2015. The mother was initially represented but on 22 May 2015 her solicitors filed a Notice of Withdrawal. The matter was therefore re-listed on 18 June 2015 as both parties were unrepresented and the family report had not yet been organised. The Court extended X’s time in the father’s care to a period of four hours, again to be supervised by either his brother, his sister-in-law or the paternal grandmother, Ms N.
As both parties were self-represented, the Court also ordered an Independent Children’s Lawyer be appointed, and directed the Independent Children’s Lawyer to arrange the family assessment report with Mr T. The Court further ordered that both parties participate in a random urine analysis drug screen test to take place during the period of the adjournment as requested by the Independent Children’s Lawyer.
The Independent Children’s Lawyer was appointed on 3 July 2015. In September 2015 the Independent Children’s Lawyer was advised that the (omitted) Children's Contact Centre had suspended their service because of concerns regarding the father’s aggressive behaviour.[1] Fortunately the parties were able to transfer to the (omitted) Children's Contact Centre, where subsequent handovers took place.
[1] (omitted) Children's Contact Service Report dated 6 August 2015, Annexure GJ1, Affidavit of J G Olsson filed 30 September 2015
At the next hearing on 9 November 2015, Mr T’s family assessment report was not yet available and the proceedings were further adjourned to 15 February 2016. The Court continued the orders for X to spend supervised time with the father. It was further ordered that in the event the father provided a clear random drug screen test, X’s time in his care would be extended to a period of six hours, to conclude at 4.00pm.
The mother raised concerns regarding the father’s late return of X, which was confirmed by records from both Contact Services. Accordingly the Court further ordered that the father return X on time at the conclusion of visits and directed that the time with the father be suspended in the event he returned X late on two further visits. The competing applications were then listed for a three day trial to 28‑30 October 2016.
The father subsequently returned X 50 minutes late on 15 February 2016 and 25 minutes late on 3 April 2016. These two occasions were in addition to numerous other visits when he arrived slightly late to either collect or return X. In the circumstances of the father being late to return the child by more than 20 minutes on two occasions, his visits were suspended, in accordance with paragraph 8 of the Orders of 15 February 2016.
In addition, the father failed to comply with requests for drug screen testing, claiming that he was not properly notified of the requests by the Independent Children’s Lawyer.
The father filed an Application to reinstate his time with X which came before the Court on 19 July 2016. The Court directed he undertake a drug screen test no later than 5.00pm the following day and upon the test showing negative for any illegal substances, X’s time in the father’s care would recommence. The father failed to provide the drug screen test as ordered but eventually complied on 29 July 2016 and his time with X resumed on 7 August 2016. Unfortunately, further problems arose with the father’s behaviour over subsequent weeks and the (omitted) Children's Contact Centre then withdrew their services on 29 August 2016. Accordingly X did not spend any time with her father until the trial commenced.

The trial

The trial commenced before me on 26 October 2016 and both parties represented themselves. The Applicant sought an adjournment on the first day of trial and informed the Court that he had instructed a lawyer “based in Sydney”. Both the mother and the Independent Children’s Lawyer opposed the adjournment application on the basis that the proceedings had been on foot for over two years and that the trial dates had been allocated since February 2016. The Court declined to adjourn the hearing and accordingly the trial proceeded.
The father had not filed any trial Affidavits and in the circumstances, the Court permitted him to rely upon earlier Affidavit material filed 9 May 2014 and 15 April 2016. The father also sought to call his mother Ms P and his friend Ms T. Given that he was proposing both Ms T and the paternal grandmother could act as supervisors in the event supervision was required, the Court allowed evidence to be called from those witnesses, even though they had not filed any trial Affidavits.
The mother relied upon her trial Affidavit filed 2 August 2016 and her Case Outline document.
The Independent Children’s Lawyer relied upon the evidence from Mr T contained in his report dated 29 January 2016[2]. The Independent Children’s Lawyer also called Ms R, the Co‑ordinator of the (omitted) Children's Contact Centre and sought to rely upon the following Children’s Contact Centre reports:
[2] Affidavit of J G Olsson filed 9 February 2016, Annexure JGO1, Family Assessment Report prepared by Mr T dated 29 January 2016
a)(omitted) Children's Contact Service report dated 28 November 2014[3];
b)(omitted) Children's Contact Service report dated 25 January 2015[4];
c)(omitted) Children's Contact Service report undated and received 16 March 2015[5];
d)(omitted) Children's Contact Service report dated 6 August 2015[6];
e)(omitted) Children's Contact Centre report dated 24 September 2015[7];
f)(omitted) Children's Contact Centre report dated 8 March 2016[8];
g)(omitted) Children's Contact Centre report dated 7 April 2016[9];
h)(omitted) Children's Contact Centre letter to the father dated 29 August 2016[10];
i)(omitted) Children's Contact Centre report dated 14 October 2016[11].
[3] Affidavit of Mr M filed 28 November 2014, Annexure MJS1
[4] Affidavit of Mr M filed 27 January 2015, Annexure MJS1
[5] Affidavit of Mr M filed 16 March 2015, Annexure MJS1
[6] Affidavit of J G Olsson filed 30 September 2015, Annexure JGO1
[7] Affidavit of J G Olsson filed 30 September 2015, Annexure JGO2
[8] Affidavit of J G Olsson filed 11 April 2016, Annexure JGO2
[9] Affidavit of J G Olsson filed 11 April 2016, Annexure JGO3
[10] Affidavit of J G Olsson filed 12 October 2016 Annexure JGO3
[11] Affidavit of J G Olsson filed 21 October 2016, Annexure JGO1
Both parties gave evidence and were cross examined, as were the father’s supporting witnesses. Arrangements were made for the father to cross examine the mother by video link, given the allegations of family violence and the existing Intervention Order.
The parties struggled with the rigours of cross examining each other. Despite his best efforts, the father tended to direct his questions towards past disputes between the parties, rather than focussing upon evidence relevant to X’s future parenting arrangements. At times the father became loud and argumentative when the mother disagreed with him. In turn, the mother abandoned her cross examination of the father, frustrated by his “denials and distortions”, as she perceived it.
The Court was assisted by the cross examination of the parties undertaken by the Independent Children’s Lawyer. In assessing the weight to be placed upon each party’s evidence, I agree with the submission of the Independent Children’s Lawyer that, where the parties’ evidence is in conflict, the mother’s evidence should be preferred.
In the course of giving evidence or asking questions in cross examination the father often spoke loudly and aggressively. He was unable to acknowledge any responsibility for his past behaviour, or to concede that he may have contributed to the difficulties within the parties’ relationship. The father was also unable to take any responsibility for the difficulties that arose at the Children’s Contact Centres, instead placing all of the responsibility upon the various staff members that he dealt with. I will discuss this further in my Reasons.
The mother generally maintained an appropriate demeanour in the witness box, even during cross examination by the father. In response to cross examination by the Independent Children’s Lawyer, the mother showed a capacity to reflect upon past events and demonstrated a child focussed attitude towards the topics at hand.
The paternal grandmother, Ms P gave evidence. I am satisfied she answered questions to the best of her recollection but she was also clearly supportive of her son and reluctant to criticise any aspect of his behaviour. The father’s friend, Ms C presented as an open, straightforward witness. She acknowledged that the father can get angry and yell but was confident of her ability to control his behaviour and ensure X’s emotional welfare.

Mr T was also cross examined by both parties, as was Ms R. Mr T acknowledged that the family report process is limited but maintained his concerns regarding the father’s behaviour and presentation. Mr T’s evidence was not shaken during the cross examination. Both witnesses gave their evidence in a calm, professional manner.

The parties’ proposals

The father sought final orders to commence spending overnight time with X on alternate weekends. He confirmed this was his position during his closing submissions, but also commented that his preferred outcome would be an equal time arrangement. In addition to alternate weekends, the father sought time with X on special occasions such as Christmas, birthdays and Father’s Day although he did not set out precise proposals in that regard. He opposed an order for sole parental responsibility in the mother’s favour.
The mother sought final orders that she have sole parental responsibility and that X live with her. She supported X spending time with the father but sought orders that the time continue to be supervised and on a day basis.
The Independent Children’s Lawyer proposed orders that the mother have sole parental responsibility for X. She proposed that X live with the mother and spend supervised day visits with the father but was not prepared to support overnight time or unsupervised time.

Legal principles

In accordance with s.65D, the Court is empowered to make such parenting orders as it thinks proper. When making a parenting order, the best interests of the child are the paramount consideration (s.60CA). Section 60B of the Family Law Act 1975 sets out the objects and principles that govern the Court’s decision-making responsibilities. This section focuses on the importance of parents being meaningfully involved in their child’s lives, fulfilling their parenting duties and obligations, and upon the need to protect children from harm.
Section 60CC sets out the factors the Court must apply in determining the children’s best interests. In Goode & Goode (2006) FamCA 1346 the Full Court noted that s.60B provides the context in which the various factors in s.60CC are “examined, weighed and applied in the individual case”.[12] Although that case dealt with interim parenting issues, the Full Court’s reasons provide guidance about the legislative pathway the Court should follow in any parenting case and their comments apply equally to final hearings.
[12] Goode & Goode (2006) FamCA 1345 [10].
First, the Court should address the considerations set out in s.60CC. Section 60CC is divided into primary considerations and additional considerations. There are two primary considerations:
a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)the need to protect the child from the physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In the event these considerations are in conflict, issues regarding the child’s safety identified in s.60CC(2)(b) should prevail. Section 60CC(3) then sets out a range of additional considerations that must also be taken into account. The Court must also consider the risk of family violence (s.60CG).
Section 61DA presumes that it is in a child’s best interests for their parents to share parental responsibility equally, unless the Court finds that the presumption does not apply or is rebutted. An order for equal shared parental responsibility triggers the effect of s.65DAA, which requires the Court to consider whether it will be in the child’s best interests to spend equal time, or substantial and significant time with each parent, and whether such an outcome is reasonably practical.

Section 60CC(2) – primary considerations

(a)the benefit to X of maintaining a meaningful relationship with both of her parents

X has lived with her mother all of her life and I am satisfied that she enjoys a meaningful relationship with her mother. Mr T described their interaction as “warm and affectionate” and noted that X “presented as a child who is emotionally secure in her relationship with her mother”.[13]
[13] Affidavit of J G Olsson filed 9 February 2016, Annexure JGO1, Family Assessment Report, page 14
I am equally satisfied that X also enjoys a meaningful relationship with her father. She spoke positively about him to Mr T and said that she likes visiting her father[14]. Mr T noted that X’s interaction with the father and her paternal grandmother was “confident, warm and familiar”.[15]

(b) the need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

[14] Ibid at page 14

[15] Ibid at page 23

Both parents love X dearly but were unable to protect her from exposure to family violence during their relationship. I conclude that the father was the party most responsible for past episodes of family violence, as discussed elsewhere within this judgment.
I do not consider X is at risk of direct abuse or neglect whilst in either parent’s care, but remained concerned that the father demonstrates little insight into the impact his behaviour and demeanour may have upon X, particularly if he reacts angrily or aggressively to a situation when X is present with him.

Section 60CC(3) – additional considerations

(a) X’s views

X loves both of her parents and clearly enjoys spending time with each of them. I note her recent experience of time with the father has all taken place on a supervised basis, whether through a Children’s Contact Service or, more recently, with the assistance of the paternal grandmother (and subsequently with Ms T).
In the course of an interview with Mr T, X said that she would like to sleep “at Daddy’s house” and when asked how she knew this, X replied “Daddy told me”.[16] I take into account X’s comments but the weight to be placed upon her views is limited, given X’s young age.
[16] Ibid at page 22

(b) the nature of X’s relationship with each of her parents and other relatives

As noted above, X enjoys a loving relationship with her father and interacted comfortably with him during the family assessment process. She also enjoyed spending time with her paternal grandmother and her step sister A. I conclude that X’s relationship with her father is a significant feature of her emotional landscape, as are her relationships with her paternal grandmother and her step-sister.
X also enjoys a comfortable and loving relationship with her mother, who has been her primary care giver throughout X’s life. There is no independent information before the Court regarding X’s relationship with her three older step-brothers. There is a significant age difference between X and her older brothers (as there is also with her sister A), but I have no doubt that she identifies her brothers as family members and that the mother supports her ongoing relationship with them.
I conclude that both parents will support X’s ongoing relationship with her extended family.

(c) the extent to which each parent has participated in decision making responsibility and spending time with the child;

(f) each party’s parenting capacity; and

each party’s attitude to the child and to the responsibilities of parenthood

It is appropriate to discuss these factors together as they are largely interrelated.
It is clear from the evidence that the parties have very little capacity to communicate effectively. The father blames these difficulties upon the mother’s hostility towards him, but the situation is more complex. The parties past conflict is discussed elsewhere in this Judgment. This past conflict has undermined both parties’ capacity to communicate effectively with each other.
Having observed the father throughout these proceedings, it is clear that his communication style and demeanour can make interacting with him very difficult, especially in situations where he feels frustrated, such as occurred at the Children’s Contact Centres. Even in the confines of the trial process he spoke very loudly and his voice would become louder and more insistent when he felt challenged by the mother or by the Independent Children’s Lawyer. The father’s behaviour can be intimidating at times, even if this is unintentional.
The father is critical of the mother’s parenting capacity but has not presented any reliable evidence to justify his concerns. On the contrary, Mr T concluded that “X presents as a well cared for, sociable and confident child. She has been in her mother’s primary care. The child’s presentation suggests that the mother is a capable and competent parent”.[17]
[17] Ibid at page 27
The father alleges that the mother was violent towards the child and accuses the mother of ‘throwing X’ on occasions. The mother denies these allegations. In assessing the reliability of the father’s evidence, it is difficult to understand why the father would have returned X to the mother’s care after the incident on 13 September 2013 if he felt the child was unsafe with her mother. I prefer the mother’s evidence on this topic.
I do not consider X is at risk of harm in her mother’s care. On the contrary, the mother has exercised her parental responsibility appropriately and X is flourishing in her mother’s care.
The father’s parenting capacity in relation to X’s care is largely untested. While she spent some periods of unsupervised overnight time in his care early on after the parties’ separation, that arrangement did not last very long.
The father has played an ongoing parenting role regarding his older daughter A. Based on the evidence from the father and the paternal grandmother, I am satisfied A spends regular time in her father’s care but their time together has been based at the home of Ms P, where the father was living until recently. The evidence at trial confirmed that A’s time with her father continues to be based at the paternal grandmother’s home, even though the father is apparently living elsewhere.

The parties’ living arrangements

The mother has provided a stable and settled living environment for X. They presently live in rental accommodation which Mr T described as modern and comfortable.
The father had been living with his mother for approximately three years. At trial he gave evidence that he was still living with his mother but would be moving into a new home at (omitted) in the very near future.
The father initially gave evidence to the effect that he would be purchasing an interest in this property from his friend Ms C but it appears from Ms C’s evidence that the father will be renting the premises from her. Ms C described her property as a comfortable three bedroom home. She may stay there occasionally but also stays regularly at her own partner’s home. She noted that she does not owe any mortgage on the property and expects that she and the father will negotiate an arrangement where he meets the regular bills and outgoings associated with the property, rather than paying rent. It is clear that she has made this offer to the father out of friendship and to support his ongoing relationship with both of his daughters.
Presently X’s time in the father’s care is supervised by either the paternal grandmother or Ms T. I am satisfied that both home environments are suitable for X to be spending time with her father.

The father’s criminal history

The SA Magistrates Court Certificate of Record filed by the Independent Children’s Lawyer confirmed that the father was charged with six offences committed in 2014 and a further six offences committed in 2015.[18]
[18] Affidavits of J G Olsson filed 30 September 2015, Annexure JGO3 and filed 11 April 2016, Annexure JGO4
The Independent Children’s Lawyer conceded that the offences were relatively minor but raised concerns about the father’s attitude to complying with the law or with Court orders. This was particularly the case given that he was also charged with a number of offences for failing to attend Court or complete his community services obligations.
The father gave evidence that he anticipates many of the charges will be dismissed or withdrawn and that he had expected all of his court proceedings would have been finalised prior to this trial. That did not occur. It may be that the father is correct and that few of the current charges actually proceed to a conviction being recorded. Nonetheless the father’s own acknowledgement that he had been driving unlicensed over the years must raise concern, as does his ongoing contact with the criminal justice system.
The father gave evidence to the effect that the police seem “very focused on him” and described them waiting outside his home. I do not accept this evidence and reject the suggestion that he has been unfairly targeted by police.

The father’s conduct at the Children’s Contact Centres

It is clear from all of the reports presented by the (omitted) Children's Contact Service and the (omitted) Children's Contact Centre that X enjoys spending time with her father. It is also clear that the father has been unable to comply with the usual requirements of the Services, in terms of punctuality and behaviour, as discussed below.
The first report prepared by the (omitted) Children's Contact Service dated 28 November 2014 did not identify any concerns in relation to the father’s behaviour or demeanour. The second report dated 25 January 2015 noted that the father was half an hour late for the visit on 17 January 2015. In addition, at the conclusion of the visits dated 20 December 2014, 3 January 2015 and 17 January 2015 the father spoke with the Co-ordinator. The report notes her concerns about the father’s demeanour and that she reminded him that it was not appropriate for him to discuss these matters when his older daughter A was present. Nonetheless, the interaction between the father, A and X continued to indicate a warm and affectionate relationship between them all.
Following those positive reports, X’s time with the father was then supervised by his extended family, with handovers continuing at the Contact Service. Numerous visits in April and May 2015 were cancelled due to the unavailability of the father’s supervisors.
On 21 June 2015 an unpleasant altercation occurred between the father and the Contact Service staff. The paternal grandmother had recently been approved by the Court as a supervisor but the Contact Service had not received the relevant paper work. The father was understandably frustrated by the situation, but that does not excuse his behaviour. He was described as becoming “agitated, ranting and talking in a very quick manner”.[19]
[19] Affidavit of J G Olsson filed 29 September 2015, Annexure JGO1
He was again advised that the Contact Service could not allow the visit to proceed without the necessary paperwork confirming that his mother was a nominated supervisor. The report then notes that the father “spoke over the supervisor, becoming more and more agitated.” The supervisor noted that the father remained “highly agitated, sweating and loud in his tone and speech”.
The father then left to collect the relevant paperwork, returning half an hour later. In the meantime, the mother had been advised that the visit would not go ahead and she left the centre with X. When the father was informed of this, he became even angrier and the report notes that both the supervisor and worker felt intimidated by the father’s close proximity and his loud and raised voice.
To the credit of the staff at the Contact Service, they contacted the mother who agreed to return with X to the handover centre, given that the relevant paperwork had been presented. This flexibility on behalf of the mother also reflects well upon her.
The report notes that the father continued to “rant loudly” and to speak in a raised loud voice, threatening to sue the Contact Service and saying ‘Tell Ms S (the Co-ordinator of the Contact Service) that I am going to ream her.” When asked to clarify what he meant by this the father said “I am going to rip her a new one. I am going to get my lawyers to sue this place.”[20]
[20] Ibid
The report further notes that both the paternal grandmother and A were present during the father’s tirade and both appeared intimidated by his behaviour and were apologetic for his behaviour. The supervisor left the room due to the father’s intimidating and aggressive behaviour but could continue to hear him swear and threaten the Contact Service with legal proceedings.
The events of this day marked a significant change in the father’s interaction with the Contact Service staff. He was again hostile and abusive towards staff on the next occasion and refused to comply with their directions to remain inside the building for 15 minutes following the end of the visit. In light of his threatening and hostile behaviour, the (omitted) Children's Contact Service suspended their services to the family. The father was cross examined about these events and demonstrated no insight into his behaviour.
Notwithstanding the difficulties with the father’s behaviour, the Children’s Contact Service agreed to refer the family to their associate service at (omitted) upon condition that the father follow the Children’s Contact Service agreement that he signed including conditions that he behave respectfully to staff at all times, not expose either of the children to any adult conversation and conflict and that he attend counselling to address his behaviour at the Contact Service.
Visits resumed at the (omitted) Children's Contact Centre on Sunday 12 July 2015. The handovers generally proceeded smoothly but problems again arose in relation to the father’s punctuality, as follows:
·On 2 August 2015 the father arrived 25 minutes late to collect X and returned her 20 minutes late.
·On 9 August 2015 he arrived 10 minutes late to collect X and returned her 20 minutes late.
·On 16 August 2015 he returned X over 30 minutes late.
·On 30 August 2015 he arrived 15 minutes late.
·On 6 September 2015 the mother agreed to extend X’s time in the father’s care for one hour so that they could attend at the (omitted). Notwithstanding this agreement, the father returned X over 10 minutes late.
·On 13 September he again returned X 25 minutes late.
In the subsequent report dated 8 March 2016 reporting on the handovers occurring between September 2015 and 6 March 2016, of the 18 visits that took place, the father was more than 15 minutes late to collect or return X on ten occasions. On a number of other occasions, the father was effectively over 15 minutes late, given that the Contact Service requires parents to arrive 15 minutes prior to the changeover time.
While the father routinely contacted the Children’s Contact Service to advise that he was running late, his behaviour showed little respect for the mother, the staff at the Service or other families relying upon the Service facilities.
The mother was understandably frustrated by this behaviour. On 9 November 2015, the Court ordered that the father ensure that he return X no later than 2.00pm in accordance with the orders. In light of the ongoing difficulties with the father’s compliance, on 15 February 2016 the Court ordered that he ensure X is returned on time at the conclusion of all visits. The Court further ordered that in the event he returns her late on two further visits, then X’s time in his care would be suspended.
Despite the above order, the father continued to arrive late to handovers. On 13 March 2016 he arrived 50 minutes late to return X. On 2 April 2016 he was 30 minutes late to collect X and returned her nearly 25 minutes late. In those circumstances the Independent Children’s Lawyer notified both parties that the visits would be suspended, pending further Court order.
The father filed an Application in a Case to reinstate his time with X on 15 April 2016, which was listed on 19 July 2016. Following submissions, the Court ordered that X’s time with the father recommence upon the father presenting a drug screen test by 5.00pm on Wednesday 20 July 2016. This order arose in circumstances where the father had not complied with previous requests from the Independent Children’s Lawyer to provide such drug screen test results.

The father did not present for a sample prior to the specified time but did present a clear drug screen test on 26 July 2016. That test was clear for all illegal substances and whilst not strictly in compliance with the Court orders, the Independent Children’s Lawyer advised the parties that the visits should resume.
The visits recommenced on 7 August 2016 and occurred without difficulty on that occasion. On Sunday 14 August 2016 the father arrived 20 minutes late for handover and the paternal grandmother was not present. At 10.20am the mother declined to wait any longer and left with X. When informed of this, the father became very angry. He began swearing and abusing the staff member in the presence of another parent. The father continued to interact with the Contact Service supervisor in a loud and aggressive tone to the point where the supervisor observed that A was becoming tearful. By 10.35am the paternal grandmother had still not arrived and the father and A then left the Service.
Subsequent difficulties then arose a fortnight later on Sunday 28 August 2016 when the relevant staff member asked for the paternal grandmother to come into the Service so that she could be sighted in her role as supervisor. The father became angry and aggressive abusing the staff member, again in the presence of another parent. The father abused the staff member, calling him a “lying prick”.
Subsequently the (omitted) Children's Contact Centre declined to provide ongoing handover facilities to the family, in light of the father’s aggressive behaviour.
The father was cross examined about these incidents. He conceded that he did get “cranky” and angry on occasions, particularly on the visit of 21 June 2015 when there was a delay regarding his mother acting as supervisor. He conceded he would get loud and that his behaviour may be intimidating but did not accept that his behaviour was problematic. He gave evidence that A was used to him speaking in a loud voice and rejected any suggestion that she was distressed or affected by his behaviour in any way.
The father showed no insight into the impact of his behaviour and was reluctant to take any real responsibility for the fact that his behaviour had caused two Contact Services to withdraw their services. The father gave evidence that the difficulties at the (omitted) Children's Contact Centre arose because of the behaviour of a staff member, but I reject this evidence. With respect, the father was well aware of his responsibility to comply with the Service Agreement and to behave politely and respectfully to all staff members.
The paternal grandmother was cross examined in relation to the Contact Service handovers and was noticeably reluctant to respond to questions put to her by the Independent Children’s Lawyer. She appeared reluctant to concede that the father’s behaviour was inappropriate, commenting that he was “frustrated” and that the situation was distressing.
Having considered the evidence presented by the father and paternal grandmother, I conclude that they were both more focussed upon the impact of the events upon the father, rather than the impact of his behaviour upon A, staff members or other families at the Contact Service.
It is very unusual for a Children’s Contact Service to suspend their services to a family. It is not a step that any Service takes lightly. Indeed, the willingness of Relationships Australia SA to move the handovers from the (omitted) Children's Contact Service to the (omitted) Children's Contact Centre demonstrates their commitment to providing appropriate services to children caught up in conflict between their parents.
The father’s inability to reflect upon his behaviour and consider ways in which he could have managed the situation differently was a matter of concern for the Independent Children’s Lawyer and for the Court. It demonstrates a lack of insight into the impact of his behaviour upon others, including X. The father was clearly aware of the impact of his behaviour when the (omitted) Contact Service withdrew their support. Notwithstanding that very clear warning, he quickly reverted to similar aggressive behaviour when the (omitted) Children's Contact Centre staff required him to comply with their usual service requirements. This reflects poorly upon the father’s attitude to his parental responsibilities and upon his capacity to provide a safe emotional environment for X.

Allegations of drug use

Both parties accuse the other of using illegal drugs. They each raise it as an ongoing concern notwithstanding they have had no direct interaction for over two years and therefore have no current knowledge of the other parent’s behaviour.
The mother is concerned that the father’s erratic behaviour and unreliability may indicate he is still using illegal drugs. She is particularly concerned by his failure to comply with the drug screen tests as requested by the Independent Children’s Lawyer. Drug use may be one explanation for the father’s behaviour, but I also note that the father was in a motor vehicle accident in 2007. He suffered serious head injuries and this may be another explanation for his behaviour now.
This issue was identified by Mr T in the family assessment, but no medical evidence was presented in relation to the father’s health and functioning. From his perspective the father considers he is “all OK now”, aside from requiring occasional pain relief or mild sedatives. Nonetheless it is possible that the father’s dysregulated aggressive behaviour may be a residual outcome from the motor vehicle accident.
The father’s failure to comply with the drug screen testing regime remains a matter of concern, however. If he had complied with the orders then the Court would have had independent evidence about his drug use, one way or another. I have no confidence the father will be any more compliant in the future and this uncertainty must affect my decision regarding his parenting capacity.

(ca) the extent to which each of the parents have fulfilled their obligation to maintain the child

Little evidence was presented to the Court in this regard. The father contributes $15 per fortnight in child support which is deducted from his Centrelink benefits. The father does not appear to earn any income from any other source at present despite his evidence about previously running a successful mechanics workshop.
It appears that the mother supports X from Centrelink benefits and child support. This is not a factor that greatly affects my assessment regarding X’s best interests.

(d) the likely effect of any changes in X’s circumstances

X has lived in her mother’s primary care since birth and has a strong and established relationship with her. I am satisfied that she is settled in her mother’s care.
X clearly enjoys spending regular time with her father, but that time is supervised. At present the Court is not satisfied that unsupervised time would be in X’s best interests, given the considerable uncertainties surrounding the father’s parenting capacity and his ability to regulate his behaviour in response to conflict or challenging situations.

(e) practical difficulty and expense

Both parties live in the metropolitan area of Adelaide and have been able to attend handovers at the relevant Contact Centres. The father has recently moved to the southern suburbs of Adelaide. He does not presently have a driver’s licence but has been able to rely on friends and family to assist with the handovers. Given there is an Intervention Order in place, handovers should take place at a neutral, secure venue. In circumstances where the Children’s Contact Services are no longer available, the only viable option is for handovers to take place at the (omitted) Police Station, as a midway, secure venue.
The only other practical difficulty relates to the father’s unreliability to attend at handovers on time. The father gave evidence that he will address this matter and that he understands the importance of attending on time and complying with the Court orders in relation to handover times.

(g) the child’s maturity, sex, lifestyle and background

X is still a young child. While she enjoys a positive relationship with her father, her primary attachment remains with her mother who has been her principal caregiver. There are no other specific characteristics relating to X that require discussion in this judgment.

(j) any family violence;

(k) family violence orders relating to X or any members of her family

The father says that he and the mother were living together prior to and after X’s birth, but I reject that evidence. On balance, I prefer the mother’s evidence about their relationship, which was more detailed and precise. The father would stay overnight regularly at the mother’s home but retained his own home in the same street.
The parties disagree about the date of separation, but again, I prefer the mother’s evidence. I am satisfied that their relationship was effectively over before X’s birth, but the parties continued in regular contact because they are X’s parents. The parties would go on family outings together at times and there may have been some fluidity within their relationship, but I accept the mother was largely trying to maintain a respectful co-parenting dynamic, for X’s sake.
Both parties concede that their interaction deteriorated during 2013. It is clear from the Affidavit material that much of the conflict occurred because the parties were arguing over the care arrangements for X, particularly the events on 12 September 2013 and 23 January 2014. Both parties felt entitled to have the child in their care and have accused the other of removing X from their respective care, without agreement. This led to the particularly distressing incident on 23 January 2014.
Neither party was able to cross examine the other parent effectively in relation to these events. However I consider the mother’s evidence is generally more plausible on this and other topics. I conclude it is likely that the father did force his way into the mother’s home on these occasions. The mother acknowledged her role in the January 2014 incident, including telling her son Mr A to “grab a knife”. This concession adds weight to the reliability of the mother’s evidence, in my view.
The police assisted the mother in obtaining an Intervention Order after the incident in January 2014, despite the father having been injured. This indicates that the police considered the mother was the person most at risk, rather than the father.
The Intervention Order limits direct contact between the parties and there was no need for any direct interaction while handovers were taking place through the Contact Centre. That option is no longer available to the parties, but it is in X’s best interests to avoid her parents coming into direct contact with each other, as far as possible.

(l) orders least likely to lead to further proceedings

It is trite to say that ongoing litigation is not in any child’s best interests. The Court hopes that both parties will accept the Court’s ruling and conduct their parenting relationship within the confines of the orders pronounced today.
It is disappointing to see that the father has already filed an Application in a Case regarding parenting issues. These documents are not before me for the purposes of these Reasons, but it raises concerns that X may be exposed to ongoing litigation during her childhood, despite any orders pronounced by this Court.

Conclusion

Parental responsibility

I conclude that the presumption in favour of equal shared parental responsibility does not apply in this matter, due to the past history of family violence. The parties have demonstrated no capacity to engage politely or respectfully with each other and the level of mistrust between them remains very high.
The father has a loud and domineering personality, as evidenced by his behaviour at the Contact Services. He tends to become insistent and abusive if he does not get his own way. I conclude it would be very difficult for any effective discussion and negotiation to occur directly between the parties, even if there was not an Intervention Order in place.
I conclude that an order for equal shared parental responsibility is not in X’s best interests. Accordingly the parent with primary care of X should exercise sole parental responsibility for her care and development.

X’s parenting arrangements

X has a loving relationship with both of her parents. She has spent her whole life in her mother’s primary care and the evidence confirms that the mother has met her parental responsibilities appropriately, with a strong focus on X’s welfare.
While the father clearly loves X deeply, his behaviour with agencies such as the Children’s Contact Services brings into question his capacity to act responsibly in the role of caregiver. His ongoing contact with the criminal justice system also raises some concerns regarding his capacity to provide an appropriate role model for X as she grows up.
In both situations, the father blames others for the problem, whether the behaviour of staff at the Contact Service, or the police for “targeting him”. The father’s unwillingness to take any responsibility for these difficulties further undermines his suitability as X’s caregiver.
I conclude that X should remain living in her mother’s primary care. An equal time parenting arrangement would not be in X’s best interests, given the ongoing concerns regarding the father’s parenting capacity and the poor co-parenting relationship. I conclude that the mother should also have sole parental responsibility for X, for the reasons discussed above.
The father seeks to have a substantial parenting role in X’s life. However, his reactive and unreliable behaviour leads me to conclude that such an outcome will not be in X’s best interests. I have no confidence that the father would manage the day-to-day realities, such as ensuring X attends at school on time and is collected on time. There is a real risk that he would find himself in conflict with staff at her school, given his behaviour at the Children’s Contact Service.
There are also practical issues to consider. The father does not currently have a driver’s licence and is reliant on friends or family to assist with handovers. This creates practical implications should X be spending longer time in the father’s care as he will not be able to easily transport her to and from school between the (omitted) suburbs and the (omitted) area.
X should continue to spend regular time in her father’s care, but I conclude her time should be limited, to avoid the risk of conflict and instability that the father brings.

Should X’s time with the father continue to be supervised?

At the conclusion of the hearing in October 2016, the Court ordered that X spend supervised time with the father each Sunday until she commences school in 2017, at which point the time would change to a fortnightly regime, to enable X to enjoy an uninterrupted weekend in her mother’s care as well.
The father does not consider ongoing supervision is necessary, but Mr T and the Independent Children’s Lawyer support ongoing supervision of X’s time with the father, given the father’s past behaviour. Mr T remained concerned that the father “seems absorbed by his own feelings and opinions … and … presents as disorganised and chaotic in his thinking.”[21]
[21] Family Report, para. 27
Mr T concluded that if supervision was removed, “Mr Doherty will take advantage of the situation and act to control the situation to suit himself.” [22] Mr T was particularly concerned that the father may try to contrive a situation to retain X in his care.
[22] Ibid, para.29
I have taken Mr T’s opinion into account in formulating my view as to ongoing supervision being required. The Court must weigh up the risks associated with the removal of supervision against the benefit to X in being able to develop and maintain her relationship with the father without the requirement of other persons being present.
I conclude that X’s time with the father should continue to be supervised, at least in the medium term. The father’s aggressive behaviour towards staff at the Children’s Contact Services raises real issues as to the father’s behaviour if he is challenged or thwarted in any situation. I do not consider X is directly at risk from her father’s aggressive behaviour, but she is certainly at risk of being exposed to the father behaving aggressively towards others while she is in his care.
Ongoing supervision brings with it a level of artificiality regarding the parent/child dynamic. In the hope that the regime of supervised visits proceeds without any difficulty over the coming year, I conclude it would then be appropriate to reduce the requirement for supervision, in the expectation that the father will have demonstrated his capacity to comply with these orders.
Hopefully the supervised day visits will have proceeded without incident. At that point, supervision could be reduced to a period of one hour at the commencement and conclusion of each visit, as a point of reassurance to X during the handover. This would also ensure the father arrives on time for all handovers and that a third party is able to conduct the handovers with the mother, to remove the potential for any direct conflict between the parties.

Future arrangements for X’s time with her father

The father has failed to comply with a number of Court orders that may have assisted his case before the Court. He did not attend an anger management course, as ordered on 19 March 2015 and repeated on 18 June and 9 November 2015. He failed to comply with requests to participate in random urine analysis drug screen testing, or to present samples within the time required by the Independent Children’s Lawyer.
All of these issues lead the Court to exercise considerable caution with respect to X’s ongoing time with the father. I conclude that it is in X’s best interests that she continue to spend day time visits with her father, rather than spend overnight time in his care. This will minimise her exposure to the risk factors identified in the Reasons, but will allow X to maintain a meaningful relationship with her father.
As X has started school in 2017, the regime of daytime visits each Sunday will now occur on alternate weekends. This allows X to enjoy a weekend in her mother’s care, which is appropriate once children are of school age. X’s time with the father has recently increased to conclude at 4.00pm, in lieu of 2.00pm. While I do not consider overnight time is in X’s best interests, I consider that a further two hour extension would be appropriate in due course.

Additional parenting orders

Regarding each party’s drug use, I do not consider the evidence indicates any ongoing concerns in relation to the mother, but in light of her earlier history of illegal drug use, I will restrain both parties in this regard. I have considered whether to order ongoing drug screen testing for the father but conclude that an ongoing order for drug screen testing is unnecessary and will not advance X’s best interests. Any potential risk to X is offset by limiting her time with the father to daytime visits and by the ongoing regime for supervision or partial supervision. I come to this conclusion taking into account the father’s failure to comply with the drug screen testing regime in any event.
The father seeks a regime of extended time during school holidays as well as time on special occasions such as Christmas, X’s birthday and other family birthdays and Father’s Day. I am not satisfied that special occasion arrangements that fall on school days will be appropriate. The distance is such that the father would not be able to return home with X. In addition, the father’s past history of unreliability in relation to handover arrangements is a strong argument against midweek handovers.

This same concern does not arise on special occasions such as Easter, Father’s Day and Christmas and it is appropriate that X have the opportunity to celebrate with the father on or near these occasions. Otherwise, X should be permitted to speak with her father by telephone on occasions such as their birthdays. The father can always plan a family celebration on the weekend before or the weekend after X’s birthday and any other relevant birthdays.
In relation to Christmas, I conclude that X should spend time with her father on Christmas Day in alternate years and on Christmas Eve in the intervening years. This will enable her to share a relaxed Christmas celebration with each parent.
Likewise, during the Easter weekend, I will order that X spend time with her father on Easter Saturday in alternate years and Easter Sunday in the intervening years so that she can enjoy time with both parents on such special occasions. I am satisfied that X should spend Father’s Day with her father and Mother’s Day with her mother each year.
The father seeks extended overnight time during school holidays, but I am not satisfied overnight time is in X’s best interests. There are simply too many concerns in relation to the father’s past behaviour to feel confident in his capacity to care appropriately for X during an overnight period. Supervision is unrealistic in such circumstances and would not provide any reassurance to the Court or to the mother. Instead I will order that X spend an additional day in the father’s care during the short school holidays and an additional day each fortnight during the Christmas school holidays, on the same terms and conditions. This will allow X to spend additional time with the father when there are special school holiday activities they might enjoy together.
The mother indicated she would consent to the father providing a mobile telephone for X so that he can ring on this telephone number to speak with the child. This would avoid any concerns about the father telephoning the mother on her own telephone, in light of the existing Intervention Order. At the same time, the father should not assume he can call X at any time he chooses. Telephone communication with the other parent can sometimes be disruptive for a child, especially where there is high conflict between the parents, as is the case here.
I conclude that an order permitting telephone communication once per week is appropriate and in X’s bests interests. It will allow X to know that her father is thinking of her and interested in her activities whilst not unduly disrupting X’s settled regime in the mother’s household.
Obviously any telephone will be held by the mother, given X’s young age. The mother will need to ensure that the telephone is switched on and made available at the time the father is permitted to call. The father will need to ensure he calls between the permitted times and that the telephone remains in credit, as he has offered to do.
The father seeks to attend school events for X. The mother is concerned about this but the Independent Children’s Lawyer supported the order. I will permit the father to attend school events, provided he does not approach or communicate with the mother.
I will continue previous orders requiring the father to attend handovers on time, with appropriate consequences, should he fail to do so. It is unfair to expect the mother and X to operate around the father’s convenience, or disorganisation.
Clearly it is appropriate that the parties keep each other informed regarding X’s health, or in the event she is injured or hospitalised, albeit they will be relying on the supervisors and the mother’s friend Ms C for all communication.
The orders I now pronounce balance X’s safety and security with her right to maintain a meaningful relationship with both parents. The father’s unwillingness to take any responsibility for his past behaviour or to take any steps that may address the Court’s concerns, such as participating in drug screen testing, or attending anger management counselling, has limited the available options in terms of the appropriate long term parenting orders for X.
I now make orders as published at the commencement of these Reasons.

I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of Judge Kelly

Date: 23 February 2017

[2017] FCCA 255

23 February 2017

Key Legal Topics

Areas of Law

Family Law