DOOLAN & EAST

[2012] FamCA 459

FAMILY COURT OF AUSTRALIA

DOOLAN & EAST [2012] FamCA 459

FAMILY LAW – CHILDREN – Best interests of the child – Time child spends with father – Whether father can make positive contribution to child’s life – Whether father poses an unacceptable risk to the child – Whether father's time be supervised or unsupervised - Parental Responsibility – Family Violence allegations – Criminal convictions by both parents in relation to fraudulent conduct and other criminal behaviour – Willingness of mother and maternal family to encourage a relationship between father and child.

Family Law Act 1975 (Cth)

B & B [Access] (1986) FLC 91-758
B & B (1993) FLC 92-357, 16 Fam LR 353
Goode & Goode [2006] FamCA 1346, (2006) FLC 93-286, (2007) 26 Fam LR 422
Mazorski & Albright [2007] FamCA520, (2007) Fam LR 518

APPLICANT: Ms Doolan

RESPONDENT: Mr East

INDEPENDENT CHILDREN’S LAWYER: Cassandra Youssef

FILE NUMBER: PAC 1072 of 2009

DATE DELIVERED: 17 May 2012

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 7, 8, 9 and 16 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Shearman

SOLICITOR FOR THE APPLICANT: Mr Amos
Adams & Partners Lawyers

COUNSEL FOR THE RESPONDENT: Mr Maddox

SOLICITOR FOR THE RESPONDENT: Ms Coorey
Voros Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Schroder

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Youssef
Raftons Family Lawyers

Orders

1. That I discharge all existing orders in respect of V East born … December 2005.

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

3. That the child shall live with the mother.

4. That neither party remove the said child from the Commonwealth of Australia.

5. That the child V East, a female born … December 2005, be placed on the Airport Watch List otherwise known as the PACE Alert System, at all points of arrival and departure of the Commonwealth of Australia. 

6. That the Australian Federal Police maintain a watchlist of the said child on all flights leaving any international airport or port of departure in all States and Territories of the Commonwealth of Australia.

7. That the Australian Federal Police assist in the implementation of and give effect to these orders.

8. That the father shall spend time with the child as follows:

   (a)At the B Contact Centre for such time as can be made available by that Centre, supervised by officers at that centre.  If the Centre becomes unavailable for any reason whatsoever, or the father wishes to do so, for three (3) hours each Saturday supervised by private supervising service such as Dial An Angel or Phoenix Rising. The father shall bear in their entirety the costs of such service.

9. That upon the father completing the courses set out in order 10 hereof the father shall then spend time with the child V supervised as follows:

   (a)For three (3) hours on each Saturday from 11.00 am until 2.00 pm for a period of three (3) months;

   (b)Thereafter for a further period of two (2) months for five (5) hours from 1.00 pm to 6.00 pm;

   (c)Thereafter on each alternate Saturday from 9.00 am until 6.00 pm;

10. That for the father’s time to move to the periods referred to in order 9 above, the father shall have attended and completed the following courses at Relationships Australia and shall have provided to the Independent Children’s Lawyer documents or certificates evidencing his completion of those courses. The courses are:

    (a)Taking Responsibility a Course for Men;

    (b)Managing Anger; and

    (c)Parenting After Separation Focus on Kids or similar courses as nominated by the Independent Children’s Lawyer in the event any of these courses are unavailable.

11. That changeovers shall occur with the assistance of the Changeover Service at B Contact Centre, if available, and in default of that service being available then contact is to be facilitated by the mother delivering the child to the paternal great aunt, Ms E, at McDonalds Restaurant, ….  In such event the father is not to attend the changeover and is not to approach the mother or the changeover venue during the changeover times.

12. That the mother shall attend and complete the following courses at Relationships Australia or similar courses as nominated by the Independent Children’s Lawyer in the event the courses are unavailable:

    (a)       Women – Choice and Change

    (b)       Parenting After Separation – Focus on Kids

13. That the father’s time in accordance with these orders, other than at a contact centre or supervised by a professional service, shall be supervised by the paternal great aunt Ms E, for the time that the father is to spend with the child pursuant to orders 9(a) and 9(b) above.

14. That the father’s time with the child pursuant to order 9(c) above is to occur generally in the presence of Ms E, but not supervised by her.

15. That the father is restrained from consuming any illicit drug for twenty-four (24) hours before or during any time the child is in his care.

16. That both parties are restrained from transporting the child in any a vehicle driven by any unlicensed person or in a vehicle that is unregistered or uninsured.

17. That each of the parties is restrained from denigrating the other parent or causing, allowing or permitting any other person to do so in the presence or hearing of the child.

18. That the mother shall keep the father informed of:

    (a)any urgent medical emergency procedure, illness or hospitalisation of the child; and

    (b)the child’s progress at school by forwarding copies of school reports in a timely manner.

19. The father is hereby restrained from attending or approaching within 500 metres of the child’s school or contacting the school in any way whatsoever.

20. That the mother is to provide telephone emergency contact details to the father and the paternal great aunt and such contact details are to be used only in an emergency.

21. That the Independent Children’s Lawyer remain in this matter for a further period of twelve (12) months from this day.

22. That all applications and cross applications be and are hereby dismissed.

1. That all issues be removed from the Active Pending Cases List.

1. That all material produced on subpoena be returned not before fifty-six (56) days from the date of these Orders. 

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1072 of 2009

Ms Doolan

Applicant

And

Mr East

Respondent

REASONS FOR JUDGMENT

Introduction & Background

1. This matter concerns the future living arrangements for the parties’ only child, V East (“the child”), who is six and a half.  The child lives with her mother.  She sees her father at the B Contact Centre, pursuant to existing Orders.  This child is presently maintained on the Airport Watch List.

2. The parties have both filed quite detailed applications as to the orders they seek in respect of the child.  The mother, who was the Applicant, has sought orders that she have sole parental responsibility for the child, that the child live with her, that the child spend no time with the father, and that the child’s name be removed from the Airport Watch List.

3. As I understood the matters raised in submissions, the mother was no longer agitating for the removal of the child’s name from the Airport Watch List.  The mother said that if the Court were to order time with the father, that time should be supervised.

4. The father initially filed a Response on 6 May 2009 and subsequently, at the commencement of the hearing, a minute of the order that he proposed.  Basically, he sought that the parties have equal shared parental responsibility for the child, that the child live with her mother, that the child spend time with the father on a graduated basis, leading to him having time with the child each alternate weekend from after school Friday until either Sunday night or Monday morning and half of school holidays.

5. At the commencement of his submissions, the Independent Children’s Lawyer produced a minute, which sought that the child live with the mother, who was to have sole parental responsibility, and that the father spend time with the child in a supervised situation for the foreseeable future. 

Brief history

1. A brief chronology of this matter is as follows.

2. The mother was born in 1986 and as at the date of hearing she was 25 years of age.  The father was born in 1976 and as at the date of hearing he was 35 years of age.  There are a number of criminal convictions in the father’s history that occurred prior to the parties meeting.  I will return to that later in these reasons for Judgment, but briefly it must be understood that the father was charged with a number of offences, in the United States of America, precise details of which are unknown.  Apparently, some $75,000 was posted as bail to secure his release from custody and the father then left the country and returned to Australia.

3. As I understand it, the father says that bail was forfeited.  The father says that because of warrants issued as a result of him absconding, he is unable to return to the United States of America.  Perhaps even more significantly, he says that he overstayed an original visa and that he is not permitted, because of visa restrictions, to return to the United States of America.

4. The parties commenced cohabitation in July 2003 and subsequently married in a traditional Lebanese ceremony in 2003.  The mother was underage at the time, and as I am led to believe, the marriage was not recognised by Australian law and therefore not registered.

5. In September 2005, there is no doubt the father was convicted of obtaining a benefit by deception and making a false statement to obtain moneys. 

6. The parties’ child was born in December 2005. 

7. The parties appear to have separated in about mid-2007, at a time when the father was in custody.  The mother obtained an Apprehended Violence Order for two years on 12 December 2007.  As I understand it, the father consented to this on a without admission basis.

8. The father then moved to South Australia and did not return to New South Wales until November 2008.  He neither spent time with, nor communicated with, the child during that period.  In evidence, he said he left because there was nothing he could do about seeing his child in the face of the Apprehended Violence Order, and he was simply unable to cope with the situation.  It is his evidence that the parties then resumed cohabitation when he returned to New South Wales in November 2008.  The mother says they did not. 

9. It seems common ground, however, that the father stayed in the same residence as the mother.  The mother asserts they occupied separate rooms.  She said that he refused to leave.  She said that during that period, she was assaulted by the father.

10. There was an alleged breach of an Apprehended Violence Order in early 2009, however, the matter did not proceed to a hearing.

11. In about February 2009, it is the mother’s case that she spoke with the father about taking the child to the United States of America.  What happened thereafter consumed a significant part of the proceedings before me, and I will return to it later in these reasons for Judgment.  Suffice it to say, the mother had forged the father’s signature on a passport application for the child.  She was apprehended at the Passport Office and subsequently charged, fined and placed on a good behaviour bond.

12. On 15 November 2009, Orders were made by Judicial Registrar Johnson, as he then was, that provided for the child to live with the mother and spend supervised time with the father at the B Contact Centre.  Both parties were ordered to attend a parenting after separation course.  At that time, the child’s name was placed on the Airport Watch List.  Neither party complied with his Honour’s Order as to attending such a course.

13. In about 2010, the parties’ names were placed on the contact centre waiting list, some seven months after the relevant Order was made.  In about mid 2010, the father saw the child by arrangement between the parties and thereafter, during July and August, the father saw the child unsupervised and overnight. 

14. On about 21 August 2010, there was an argument and that arrangement ceased, with the mother applying for an Apprehended Violence Order.

15. In December 2010, the father went back to the B Contact Centre to try and see his child pursuant to the interim Orders.  He was place on a waiting list in January 2011, and in about February, the mother placed her name on the waiting list.  In about May, the father did not attend an intake assessment.  He said that he was frustrated with the process and was not at that time prepared to participate.  In May 2011, a final Apprehended Violence Order was made on a without admission basis for a period of five years for the protection of the mother as against the father.

16. That is a brief background to the matter. 

The parties’ documents

1. The material of the parties’ can be summarised as follows.

2. The mother relied upon:-

   ·Her affidavit sworn on 5 March 2009 and filed 9 March 2009; 

   ·Her affidavit sworn on 2 June 2010 and filed 3 June 2010; 

   ·Her affidavit sworn on 7 May 2012 and filed in Court on 7 May 2012;

   ·An affidavit of her mother, Ms D, sworn on 1 May and filed in Court on 7 May 2012; and 

   ·A parenting questionnaire, completed by the mother as part of the Less Adversarial Trial, filed 3 June 2012.

3. The father relied upon:-

   ·His affidavit affirmed on 30 April 2009 and filed 6 May 2009;

   ·His affidavit affirmed on 6 September 2011 and filed that same day; 

   ·His affidavit affirmed on 7 May 2012 and filed on 7 May 2012; 

   ·An affidavit of Ms E sworn on 7 May 2012 and filed in Court on 9 May 2012;

   ·An undertaking of Ms E sworn on 9 May 2012; 

   ·His statement dated 7 May 2012 in relation to his present living conditions; and

   ·Two parenting questionnaires filed on 3 June 2010 and 6 September 2011 respectively.

The mother’s case

1. The mother’s case, as I apprehend it, is that the father is a violent man with a number of convictions or criminal offences, as well as outstanding charges in the United States of America.  He has chosen, she says, when it suits him, not to see the child.  She asserts that, on one occasion, he told her that he would not see the child and she (the mother) was to tell the child that he (the father) was dead.  She says that there is no benefit to her daughter seeing the father in the future.  She says that the fact of the child seeing her father would impact upon her (the mother) to her detriment and thus could affect her capacity to care for the child.  She made reference to the father’s gambling, asserting he was a heavy gambler.

The father’s case

1. The father’s case is, notwithstanding his past criminal history and criminal record, he has now seen the error of those ways and has changed since about the time of the child’s birth.  He says he is establishing and improving his relationship with his daughter by means of the time he spends with her in the contact centre.  He relies heavily upon the observations made during his time with the child at the contact centre, to indicate that his time with his daughter is meaningful and pleasant for her.  He seeks that he should be allowed to continue to do this for a short time and thereafter, it should move progressively to longer periods of unsupervised, culminating in unsupervised weekend time.  He asserts that the mother is a liar.  He asserts that she has at all times made false allegations about him concerning the violence that she asserts he has perpetrated upon her. 

The evidence before me

1. I do not propose to set out in great detail the evidence given before me during the course of the hearing.  However, it is important that I examine the evidence of each of the witnesses. 

2. The first witness to give evidence was the Applicant mother.  As I have said, she sought to present her case on the basis that the father was a violent man, who had committed crimes in the past.  Much of the cross-examination of the mother was directed towards her attempts to leave Australia and travel to the United States of America. 

3. As with so much else in this case, a picture emerged in the oral evidence that was not accurately or correctly given in the affidavit material.  The situation in the affidavit material of the mother seemed to indicate that the mother had travelled to the airport where she was stopped. 

4. In oral evidence, it became clear that her evidence was that she had been refused a passport for the child at the Passport Office, but thereafter, she took her own mother to the airport to allow her mother to leave for the United States of America.  It was the mother’s evidence that the purpose of travel was to attend a funeral and that she intended to return.  I accept the submission by the Independent Children’s Lawyer that it is somewhat bizarre that the mother would risk a conviction (which indeed was imposed) to travel overseas for a funeral, and subsequently return.  It would seem that her evidence on this point might indicate that she did not intend to return to Australia. 

5. At paragraphs 33 of her affidavit filed on 9 March 2009, the mother asserted that she had obtained tickets to travel overseas.  In her evidence in the witness box, she denied this.  The whole of that evidence caused me some deal of concern as to what it was precisely she was intending to do.  I have come to the conclusion that she indeed intended to leave Australia and not return with her daughter. 

6. During her cross-examination, I was also concerned that this was still her attitude.  This was particularly so in the light of her application being framed that she have sole parental responsibility, that the child live with her and that she be entitled to have the child’s name removed from the Airport Watch List.  She did say that she no longer pressed the latter application.  I do not know what has caused that change of heart, if indeed there was a genuine change of heart on her part. 

7. The mother also gave evidence in relation to this vexed passport issue that at the time she signed the passport application, she firstly did not think the father was consenting.  She then formed the view that he was consenting and finally, that he was not consenting.  Clearly, on that evidence, she signed the document in an attempt to obtain the passport and travel overseas, knowing the father opposed it. 

8. The mother gave evidence of violence at the father’s hands.  She claimed that on one occasion she had suffered a broken ulna.  I am not aware of any evidence that has been presented to me that might corroborate this injury.  The mother has at all times said the father was violent towards her, without being particular in her allegations. 

9. My impression is that she was determined to paint the father in the worst possible light and to do so, she was prepared to exaggerate or lie to make the father’s position appear worse.  There was a period of time where in 2010, the father was enjoying unsupervised and overnight time with the child.  There is real dispute as to the manner in which that came to an end.  However, it must be seen that for a period of time in 2010, the mother was prepared to allow the father unsupervised and overnight time with their daughter at a time when the child was significantly younger than she is now.

10. The mother, in her evidence, was adamant that there was no benefit to their daughter having an ongoing relationship with her father.  She made it clear to me that she wanted as little as possible to do with him in the future. 

11. She was not prepared to take responsibility for any defect or difficulty in the parties’ relationship.  She said that it was never a fault of hers that had caused any of the parties’ arguments.  She was not prepared to accept any responsibility for the difficulties in their relationship, a relationship which I am satisfied had been volatile and at times, physically confrontational. 

1. The father gave evidence immediately after the mother, at my request.  My impression of him is that he is a man who has no difficulty in saying what he believes will help him at any given time. 

2. His evidence in respect of violence was that he once slapped the mother after finding her unconscious because of consuming alcohol, whilst she was caring for the child.  I accept that there was a confrontation on that occasion, but I am by no means satisfied, as he would have me to believe, that was the only physical confrontation that occurred between he and the mother. 

3. He gave evidence as to why he cannot return to the United States of America.  The significance of this, as I understand it, is that the mother appears to have wanted to go to a place, i.e., the United States of America, where she knew the father could not go.  He said that it is a problem with his visa as much as anything else that prevents him returning. 

4. So far as I am concerned, there are two aspects relating to his difficulties in going or returning to the United States of America.  One is that he has and will continue to have problems obtaining a further visa for the United States of America because he overstayed an earlier visa.  Secondly, he has arrest warrants outstanding because of non-appearances and absconding whilst on bail.  In my view, it would be more likely to be the visa difficulties that would prevent him entering the United States of America, rather than the arrest warrants.  Clearly, he may not want to go to the United States where he faces arrest, but I would be concerned that if it were only the arrest warrants, he would certainly be allowed to enter the country and would probably be immediately apprehended.  I can certainly see why he would not choose to return to the United States of America. 

5. So far as his gambling is concerned, he indicates that he has not gambled for some time.  However, his own Facebook entries would seem to give a lie to this.  In exhibit ICL2, there appears a pile of chips and the wording “Robbing Star Casino 2011”. 

6. The father says, in effect, that he was showing off.  He says that the chips pictured were not used beyond an earlier time and therefore would not be chips in use as at 2011.  I do not accept this.  Apart from anything else, I am satisfied that he had the opportunity, should he have chosen, to obtain evidence in relation to when the chips depicted in the exhibit ceased to be used in the casino. 

7. I am satisfied that the father was speaking in the then present tense when he spoke of robbing the casino in 2011 in that entry.  Accepting this as I do, it means that I disbelieve his assertions that he has not gambled for some considerable period of time.  Indeed, I am satisfied that he gambled far more recently than he would have me believe and having regard to the amount that he says was robbed from the casino, I am satisfied that he was a committed gambler. 

8. His general attitude towards criminal charges and convictions causes me to form a view that he simply does not see that in any of his actions he has done anything particularly wrong.  His driving record is one of driving whilst either disqualified, cancelled or suspended.  It causes me real concern.  The first time he was apprehended, he knew that he was unlicensed in New South Wales.  He continued to drive on an international drivers licence and was further apprehended. 

9. At present, he holds a licence issued in another state, knowing that he is disqualified in the state of New South Wales until 2016.  As with so many other aspects of his evidence, he seems not in the slightest concerned that someone might find that his actions in this regard are not to be applauded.  In fact, my impression when he gave that evidence was that he thought this was a very clever thing he had done to get around something he found inconvenient, i.e., his inability to obtain a current drivers licence in New South Wales.

10. I am satisfied that on at least two occasions he has driven a motor vehicle with stolen or incorrect number plates attached.  It was put to him by Counsel for the Independent Children’s Lawyer that he was re-birthing motor vehicles.  He denied this.  Whilst there is no specific evidence to point to this being so, I remain concerned that he committed this offence on a number of occasions.  I find his evidence that at one stage he owned seven motor vehicles simultaneously, because he liked motor cars, to be disingenuous. 

11. I am satisfied that he had told the mother to tell the child that he was dead.  I am satisfied this suited him at the time and it was said so as to rid himself of an obligation which, at that time, he did not wish to undertake.  He has had Apprehended Violence Orders made against him.  It is clear, however, that an allegation of breach of such an Order was not proceeded with.

12. Another matter he was cross-examined about was an entry on Facebook in which he described someone in most derogatory terms.  That entry is to be found at annexure B to the mother’s affidavit sworn 7 May 2012.  He says this entry related to a female friend who had taken a car of his and not returned it.  His evidence does not convince me that this is so.  I am comfortably satisfied that the Facebook entry was posted and intended to refer to the mother.  The entry was such that his own cousin wrote to him cautioning him to be more careful. 

13. All in all, I found the father to be an accomplished and facile liar.  I have difficulty in accepting his evidence as to his past activities unless it is independently supported. 

14. Having said that, I am satisfied that I can accept his evidence that he does love his daughter and that he does wish to facilitate and expand a relationship with her.

15. I also had concerns about the mother’s evidence.  In respect of each of the parties, I am satisfied that I should be very careful about accepting what either of them says. 

16. The maternal grandmother then gave evidence.  She was also determined to paint the father in the worst possible light.  She was questioned at length about leaving for the United States of America and the passport issue.  Her evidence was that she directed her daughter to sign the passport application in the father’s name.  Again, there was some uncertainty in her evidence as to whether or not she believed the father was consenting to the mother and child leaving Australia.  She said at one stage she had a message on a mobile phone indicating that he was happy to allow the child to leave the country, but later, she said that at the time she directed her daughter to sign the document, she knew the father was not consenting. 

17. She described the father as a bad father who had nothing to offer the child.  I find this evidence contradicted by her own actions.  She left a foster child with the father when it suited her to do so.  Her explanation that it was only for a short period of time to enable her to engage in a church activity does not explain her action in leaving the child with him if she believed that he was the bad person and the incapable parent that she sought to make him out to be.  I find her evidence of little assistance.  I am not satisfied that she made any real effort to tell the truth.  I am satisfied she was biased in favour of her daughter to a very significant degree such as to make her evidence entirely unreliable.

18. The last lay witness I heard from was the father’s aunt.  She left me with the impression that of the four lay witnesses, she was the only one endeavouring to tell me the truth.  She gave evidence that she knew the father had gambled up until five years ago.  I am satisfied that, in this case, she has been deliberately misled by her nephew.

19. I am satisfied that indeed the father has chosen to keep his aunt very much uninformed of his activities.  Nevertheless, I am satisfied that she loves the father and she dearly loves the child she considers to be her grandchild.  I am satisfied that she has been actively involved in this matter.

20. I am satisfied that she knows and understands the nature of her evidence and the nature of the undertaking she has given to the Court.  I am satisfied that there has been one occasion where she has physically involved herself, or intervened, so as to ensure that her nephew was removed from a situation of what might otherwise have been an altercation with the mother, or members of her family. 

21. So far as I am concerned, that is the evidence of the parties and their witnesses that has relevance to the present matter.  I have made, I believe, findings that indicate my acceptance or otherwise of the evidence of the parties and those witnesses. 

22. The last witness called was the Family Consultant who had prepared a detailed and most helpful report in relation to this matter.  That report dealt with a number of matters, and particularly the relationship of the parents with the child.

23. She had also clearly reported that during the course of the interviews the father said, what can only be described as, “silly, provocative things” which he subsequently conceded he should not have said.  In paragraph 58 of her report, the counsellor talks of the session between the child and her father.  She talks of the child being hugged by her father when she entered the room, and the child orienting her body sideways and appearing a little uncomfortable but not resisting.  There was a suggestion as to a game to be played, and the child was jumping up and down waiting for her turn. 

24. In paragraph 59, the counsellor reports the incident of the child telling her father that her bottom tooth hurt and of the father inspecting the tooth.  The child appeared to be comfortable being in close proximity to her father.

25. She (the child) spoke about a bike, saying her mother was buying her a bike.  She (the counsellor) says that throughout the session, the child made appropriate eye contact with her father and laughed from time to time, however, she appeared relatively quiet and did not initiate much conversation with the father.  The counsellor goes on to report that the child was asked at the conclusion of the observation how she enjoyed the session, and it is reported that with limited effect she said she had enjoyed it.  She had most enjoyed playing UNO with the father, and said there was nothing she disliked about the time spent during the observation.  The child is reported as saying she likes spending about the current amount of time with her father, but did not want to spend overnight with him. 

26. The report clearly indicates that there is a loving and supportive relationship between the mother and the child.

Law to be appied

1. I turn then to the law to be applied in parenting cases. 

2. Firstly, I have regard to the matters set out in section 60CC of the Family Law Act 1975 (Cth). Section 60CC(2) tells me that the primary considerations to which I must have regard are:-

   (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 physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. Thus, it is clear that a balancing exercise is created.  I turn then to the additional considerations set out in paragraph 60CC(3).  The first of those subsections (subsection (a)) refers to any views expressed by the child and any factors underlying those views.  The child has said that she would like to see her father for about the same time she is seeing him now.  She has made it clear that she does not want to spend overnight with him, however, I take from that that she is quite prepared to verbalise that she does wish to see her father and wishes him to have some part in her life.

4. As to the nature of the relationship of the child with each of the child’s parents and others (subsection (b)), the child has a close and loving relationship with her mother, which has provided her with support and comfort for the whole of her life.  The father’s relationship is far harder to define.  Clearly, he has, as a result of his own wishes, absented himself from the child’s life from time to time, but the situation as it presently stands is that he is back in the child’s life.  He is endeavouring, I am satisfied, to increase and promote his relationship with the child.  He is prepared, he asserts, to do this for a short period of time by the continuation of his supervised time at the contact centre.

5. I am satisfied that both parties in this case to some extent have seen the child as something of a prize to be won or withheld.  I am satisfied that both parties have at times been more anxious to prove themselves right and the other party wrong rather than focus upon and deal with the issues in relation to their child.  Unfortunately, I believe that this mindset of both parties continued throughout the hearing. 

6. I turn then to subsection (c) as to the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.  There have been times in the past when, to the mother’s credit, she has endeavoured to facilitate a relationship with the father.  That particularly applies to the period in 2010 when she permitted the father to have both overnight and unsupervised time with the child.  However, the manner in which she presented her case before me was that she wished the father to have no ongoing part in the child’s life, and indeed sought that he be excluded absolutely from the child’s life.

7. As to the likely effect of any change in the child’s circumstances (subsection (d)), the father does not propose that the child should live with him.  He does, however, propose that there should be an increase in the time the child spends with him, and he further proposes that that time should move from supervised to unsupervised.  I am satisfied that, were I to make too quick a progression, if I am to permit time at all, then that could be to the detriment of the child.  Certainly, and for the foreseeable future, I believe that to change the situation so as to confer overnight time upon the father is something that his daughter might have some difficulty coping with.

8. The next consideration is the practical difficulty and expense of the child spending time with either parent (subsection (e)).  At the present moment, time is occurring at a contact centre.  I am satisfied the father has financial resources that enable him to cope with any order that I might make in relation to him spending time with the child.  Provided there is an appropriate changeover point, I am satisfied that the practical difficulties are not such that they would in any way indicate that the child should not spend time with the father.

9. As to the capacity of each of the child’s parents (subsection (f)), the father in the past has led a life that does him absolutely no credit.  He has involved himself in drugs in America, the extent to which he was so involved, I am unable to say.  He has been involved in some form of unlawful sex-related activities.  In this country, he has chosen to ignore the laws regarding obtaining and maintaining an appropriate driver’s licence. 

10. He has obtained money by deception on at least two occasions in a most calculated and cold-blooded manner.  Whilst he says that he has not done anything wrong since about the time that the child was born, that is nor borne out by his record.  In 2007, some considerable period of time after the birth of his daughter at the end of 2005, he was again dealt with for driving unlicensed, and at the same time, driving an unregistered and uninsured motor vehicle.

11. I accept that the father finds these matters to be of little importance or significance.  However, I find that they are of importance because they illustrate that he has a high regard for his own wishes and a very high disregard for those that would seek to in any way require him to do things other than as he chooses. 

12. I am satisfied, however, that he has some capacity to make a contribution to the child’s life.  I am satisfied that he does have an affection for the child, which of course is not the same as capacity.  I am satisfied that he must learn a good deal more about what is required of him as a parent and as a man.

13. I am satisfied that his capacity as a parent will be enhanced by attending and participating in a number of courses that the Independent Children’s Lawyer has indicated would be appropriate, and which I will return to shortly in these reasons for Judgment. 

14. The mother’s capacity would seem, at this stage, to be unchallenged.  She has cared for the child, and I am satisfied has done so to a most effective level.  So far as capacity is concerned, her case seems to at least include a submission that if there were to be time with the father, she would be so personally affected that that would go to the point of, in some way, inhibiting her or diminishing her capacity to care for the child.  In this, it appears reliance is placed upon the decision of B & B[1].

    [1] (1986) FLC 91-758

15. However, my observation of the mother is that the effect of the father spending time with their child would not be such that it would affect her to the point that her parenting capacity and ability suffered.  As I say, I have only her evidence in this regard.  I have already indicated my views of the mother’s evidence generally.  There was no attempt to put before me any expert evidence by a health professional as to the effect that this, being time with the father, might have upon her.  Accordingly, I am not satisfied that this is a cause for in any way inhibiting the father’s time with the child.

16. As to the maturity, sex, lifestyle and background of the child (subsection (g)), the child is growing up and, on the evidence that he has endeavoured to put before me, I am prepared to accept that the father is doing his best, even though it may not be a particularly successful best.  I am satisfied that the child is a child of a cross-cultural relationship, and I am satisfied that she should be entitled to have some knowledge of her father’s cultural and religious heritage.  That, in my view, can only be obtained by knowing her father.  Certainly, her mother’s cultural history and religious beliefs are to be considered as well.  I am satisfied that any order I make will not in any way inhibit the mother’s opportunity to involve the child in her cultural and religious beliefs.

17. As to the attitude to the child and the responsibilities of parenthood demonstrated by each parent (subsection (i)), the mother, I am satisfied, cares deeply for the child and wants what she considers to be the best for her.  Unfortunately, what the mother considers to be in the best interests of the child might not in fact necessarily be in the child’s best interests.  The father, I am satisfied, loves this little girl and does want a part in her life.  However, as I have previously said, both parties’ attitudes to the child, in my view, have in the past been overborne by their wish to be proven right in the ongoing dispute between them. 

18. As to whether there is any family violence involving the child or a member of the child’s family (subsection (j)), I am satisfied that there has been family violence in the parties’ relationship.  Mr Maddox, as I understood him, endeavoured to persuade me that one conceded act, that is, the father dealing with the mother after he says he found her unconscious from consuming alcohol, would not be treated as family violence, particularly such as would trigger subsequent sections of the Act.  With respect, that is like saying someone is a little pregnant.  It is either family violence or it is not.  In this case, I am satisfied there has been family violence in the parties’ relationship.

19. I am enjoined to consider making the order least likely to lead to further litigation between the parties (subsection (l)).  I confess that I have some difficulty with this section.  In these present circumstances, I propose to make the order that I consider, in all the circumstances, best for the child.  Having looked at those additional factors, I go back to the primary considerations and the balancing exercise that they indeed have dealt with.

1. On the one hand, the child should have the opportunity to have a meaningful relationship with both parents.  There have been a number of reported decisions as to what “meaningful relationship” means.  I would adopt the decision of Brown J in Mazorski & Albright[2], where her Honour said “when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.  It is a qualitative adjective, not a strictly quantitive one.”

   [2] [2007] FamCA 520, (2007) Fam LR 518

2. That means, in my view, that we are not looking at the amount of time, but rather the time and what is to be done with it, in relation to parent and child.  To be meaningful does not necessarily mean to be extensive.  Each case must be decided on its own merits.  In a case such as this, a meaningful relationship can be the result of quite limited time spent, for the benefit of a child, between a parent (here the father) and the child.

3. Balanced against that is the need to protect the child.  It is clear on the evidence that I have heard that there has never been violence directed at the child.  I am satisfied that the child has witnessed some violence, but I am not satisfied, nor can I be on the evidence before me, that the father has at any time endeavoured to harm the child.  Indeed, his behaviour has been more, when it has suited him, to just simply ignore the child and walk away from her.

4. I can understand the mother’s concern, given the father’s past criminal record and with him being so oblivious, or apparently oblivious, to the requirement that he conform to the law in the place that he chooses to live, that he may well be seen to be capable of inculcating ideas in the child that are anti-social or, certainly, not respectful of the law.

5. I am not satisfied that that presents such a risk that, of itself, the father should be prevented from seeing the child altogether.  It seems to me that, when I try and balance the matters, having regard to the additional factors, I must come to the conclusion that there should be some time spent with the child, but there will need be, for the foreseeable future, conditions imposed upon that time.

6. I turn then to section 61DA.  That tells me that in all cases where I am considering making a parenting order, I must apply a presumption that the parties should have equal shared parental responsibility.  That presumption is not to apply if there has been family violence (subsection 2(b)) and it can be rebutted (subsection (4)) in the event that the Court is satisfied that the evidence makes it such that the presumption is properly rebutted as it would not be in the child’s best interests.

7. In this present case, I am satisfied there has been family violence.  I have said all I wish to say on this subject.  I have dealt with Mr Maddox’s submission and I am satisfied that the level of violence that existed in this relationship is such that the presumption is not to apply.  If I am wrong in that course, then I am satisfied that the body of evidence that I have heard is such that the presumption is rebutted.

8. The parties both indicate to me, through their evidence, that they have neither trust in the other, nor the ability to communicate with the other.  Indeed, it was the father’s case that he cannot communicate with the mother.  In those circumstances, to make such an order would be to create something unworkable because of the parties’ attitudes towards each other.  I am satisfied that to require these parties to communicate at any meaningful or sensible level, so as to make decisions concerning the welfare of the child, would be to impose upon both of them a requirement that neither of them could meet.  I am not satisfied that the parties would be able to, in any meaningful way, collaboratively discharge the duties and obligations that equal shared parental responsibility would impose upon them. 

9. Certainly, it would not be in the best interests of the child to be placed in a situation where any significant decision concerning her would leave the parties unable to resolve the issue.  Thus, they would either have to involve third parties to assist them to reach consensus, or if unable to reach a resolution by that means, necessitate a return to the Court to seek a determination of matters that should be dealt with by them and each of them as the child’s parents as part of the child’s upbringing.

10. In the circumstances of this case, it seems to me, therefore, I have no alternative but to find that only one parent can exercise parental responsibility in respect of the child. 

11. The father does not challenge the mother’s proposal that the child continue to live with her.  Given this, I am satisfied that it is appropriate that it is the mother who should have sole parental responsibility for the child and I will so order.  I will further order that the child live with the mother.

12. I must then consider the time the father is to spend with the child.  The mother says that the risks indicate that there should be no time.  However, in the course of submissions, her learned Counsel appeared to say that in the event that there was to be time, and I am not saying that a concession was made to that effect, the mother’s position was that if there was to be time, then that time must be supervised.

13. Section 65DAA of the Act provides that if an order does provide for equal shared parental responsibility, I am to consider either equal or significant and substantial time.  Whilst, clearly, from the orders I have already determined, there will not be equal shared parental responsibility between the parties, their Honours of the Full Court in Goode & Goode[3] made it clear that it is still necessary for the Court to consider those situations when dealing with a parenting order, even in the event that equal shared parental responsibility is not conferred.

    [3] (2006) FLC 93-286, (2007) 36 Fam LR 422, [2006] FamCA 1346

14. I am satisfied that I must look again to the balancing exercise that I have indicated between those primary considerations.  Firstly, is there such a situation in force that there is no benefit to the child such that no order for time would be in the best interests of the child?  Alternatively, is there a method whereby what is clearly a degree of concern to the mother and in fact a concern for the Court as to the father’s past behaviour and performance that can be accommodated by making of orders, as it were, to take that into account?

15. I am satisfied that, in this case, there is reason to be satisfied that the father having a part in his daughter’s life will be of a benefit to her such that it will outweigh any risk that might otherwise prevent such time occurring.  Having said that, however, I am satisfied that the time the father should spend with the child is to be carefully structured and defined.  I am satisfied that, for the present, time should remain at the contact centre.

16. I am satisfied that subject to the father undertaking and completing courses which the Independent Children’s Lawyer has nominated, his time with the child may progress and move outside the confines of the contact centre.

17. I am satisfied that there will be no difficulty in the father, if he chooses to do so, employing the services of professional supervisors outside the contact centre.  He has told me in his evidence, and he asks me to believe, that he does not have to work, he has no need for money and he can get money.  I am satisfied that, in this case, I will believe him and I will accept that he can, if he chooses, engage services other than the contact centre.  However, if he is to do that, he is to give the mother proper notice of his intention to do so and he is to provide details of the service he proposes to use.

18. I am prepared to order that, after the father completes the courses nominated by the Independent Children’s Lawyer, then time may be removed from the contact centre and supervised thereafter for a limited period by his aunt.  I have already spoken of the aunt’s involvement in this matter.  I am aware that the mother’s case is that the aunt would be unable to prevent the father doing what he wanted to do so far as the child was concerned.  However, I am of the view that the aunt will honour her undertaking and will stay by the evidence she has given to the Court and will, in the event of any difficulty, inform the mother immediately of what is happening, and that she will also endeavour to prevent the father from doing anything contrary to the orders. I am comforted in this belief by the episode I have already referred to of the aunt removing the father from a potentially escalating situation.

19. I am aware of the line of authority in B & B[4], which speaks of two things.  One, family members not necessarily being the best supervisors, and two, supervised time not being, as it were, indefinite.  In this case, I have dealt with the reasons why I find Ms E, despite that line of authority, to be a competent and qualified person to be a supervisor.  I am also satisfied that, in this case, it is not possible for me to predict or say when either supervision or time being exercised in the presence of Ms E will come to an end.

    [4] (1993) FLC 92-357, 16 Fam LR 353

20. I do not intend to endeavour to predict when that might be.  I am satisfied that, in this case, Ms E will continue to provide her assistance for the child and the father. 

21. I will order that changeovers, where possible, be at the contact centre or, in the event that cannot be accommodated, that it occur at a McDonald’s restaurant and in that case, it will be effected by Ms E.  It will not be a situation that provides another opportunity for these parties to become involved in conflict and angry outbursts, which may affect the child.  I say this particularly because I am aware that the mother has always claimed the child has been adversely affected after time with the father, for example, by bed wetting.

22. From what I have seen, I am satisfied that much of the difficulty for this little girl is knowing the degree of dislike that her mother holds for her father.  To my mind, it will be necessary, in this case, to make orders that neither party discuss or denigrate the other in the presence of the child.  It will also be necessary to avoid the parties coming face to face so far as is possible.  As I have said, I propose to move from an order that requires supervision to an order that requires time to be in the presence of.  However, I do not propose to make an order that will remove the requirement that the father’s time be spent in the presence of his great aunt.  I do not propose to make any order increasing the father’s time beyond day time only.  This is despite Mr Maddox’s assertions that I must make provisions for a future beyond daytime only.  I do not agree.

23. Whilst I accept that the relationship of father and daughter is such that it is to be fostered and developed, my concern as to the father’s behaviour and attitudes are such that I do not believe that there is a foreseeable future when he can have extended overnight time alone with the child.  If the situation that his Counsel espouses comes to pass and the child is enjoying her time with the father and the father has proven that his protestations that he is a new man, free of his past criminal associations and behaviour is true, he may be able to extend his time by agreement with the mother.  If the parties cannot reach agreement, the father has the right to bring the matter back to this Court or another court of competent jurisdiction, upon establishing there has been a change in the circumstances surrounding the child, to seek different orders.

24. I do propose to order that the mother provide contact details for emergency use.  I will order that the mother inform the father of emergencies involving the child and schooling, and provide school reports to the father.  I will order that the child is not to be conveyed in a vehicle driven by an unlicensed driver, an order which applies to both parties.  I disregard the father’s interstate licence, and so far as I am concerned, he remains disqualified in New South Wales.  Further, I will order that the child is not to be conveyed in an unregistered or uninsured vehicle.

25. Changeovers, once supervision at the contact centre is no longer applicable, shall occur with the changeover service at the B Children’s Contact Centre if available, and in default of that service being available, then contact is to be facilitated by the mother delivering the child to the paternal great-aunt, Ms E, at McDonald’s restaurant.  In such event, the father is not to attend the changeover and is not to approach the mother or the changeover venue during changeover times.

26. The orders that I then make are as set out at the forefront of these reasons for Judgment. 

I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 17 May 2012.

Legal Associate:      

Date:    19 June 2012