Drummond and Cantor

FAMILY COURT OF AUSTRALIA

DRUMMOND & CANTOR

[2018] FamCA 1096

FAMILY LAW – CHILDREN – Final parenting proceedings – Best interests of the children – Where father perpetrated significant family violence – Where father had serious drug addiction and criminal history until 2015 – Where allegation of father sexual abuse of mother’s daughter not subject of these proceedings – Where evidence inconclusive as to whether such abuse occurred – Where mother believes abuse occurred – Where children have had no contact with father for some years – Where consideration of impact on mother of order for children to have time with the father – Where consideration of protective concerns – Where children and mother have ongoing good relationship with paternal grandmother – Where consideration of the children’s best interests – Where father’s circumstances now more stable in new relationship – Where order made for limited time with father under supervision of paternal grandmother or otherwise as agreed – Where mother to engage children in family therapy – Where mother to have sole parental responsibility – Where children to live with mother – Where Independent Children’s Lawyer appointment continued for 12 months with drug testing of father – Where mother authorised to change children’s surnames and obtain passports for the children.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 68B

Amador v Amador [2009] FamCAFC 196; (2009) 43 Fam LR 268
Goode and Goode (2006) FLC 93-286
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GRR [2010] HCA 4

APPLICANT:

Ms Drummond

RESPONDENT:

Mr Cantor

INDEPENDENT CHILDREN’S LAWYER:

Stanfords Solicitors & Conveyancers

FILE NUMBER:

PAC

1918

2013

DATE DELIVERED:

19 December 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:	Foster J
HEARING DATE:	14, 15 and 16 May 2018 and 18 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Snelling

SOLICITOR FOR THE APPLICANT:

Macarthur Law Group

COUNSEL FOR THE RESPONDENT:

Ms Murphy

SOLICITOR FOR THE RESPONDENT:

Duffy Law Group

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Morley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Stanfords Solicitors & Conveyancers

Orders

That the mother have sole parental responsibility for the children X born … 2007 and Y born … 2009 (“the children”).
That the children live with the mother.
That the father spend time with the children and communicate with the children as agreed between the mother and father and Independent Children’s Lawyer for a period of 12 months from this date and thereafter as agreed between the mother and father in writing such writing may include SMS or email communication and in default of agreement as follows:
(a)on four occasions in each year, occurring in March, June, August and November, for two hours on each occasion for the first 12 months from the date of these orders and for three hours on each occasion thereafter, supervised by the children’s paternal grandmother Ms B Cantor, at the residence of the paternal grandmother or otherwise as agreed to by the mother and occurring on the Sunday of the last full weekend of those said months;
(b)the father may provide presents, being no more than two presents per child on any one occasion, for the children’s birthdays and for Christmas, such presents to be sent to the children through the children’s paternal grandmother.
That, other than as provided for in Order 3, the father, Mr Cantor born … 1980 is restrained from attending at and from approaching any place of residence of the mother and any of the children, any school being attended by any of those children and any place of employment of the mother, and any place at which the children or either of them is spending any time with either of the children’s paternal grandparents, and for all of these purposes of this order is an order for the personal protection of each of the children.
That the mother do all things necessary to engage, and if already engaged continue, the children with a child psychologist to provide therapy for the children to assist in explaining to the children of their family situation and these orders and for this purpose the mother inform the Independent Children’s Lawyer within 14 days from this date the name and address of the psychologist engaged or to be engaged for the children and that the Independent Children’s Lawyer be at liberty to provide to such psychologist a copy of these reasons for judgment and orders.
The Court notes that it is the intention of the mother, expressed in her evidence at hearing before the Court, to continue to enable the children to spend time with the paternal grandparents with the possibility that that time may also include the children’s half sibling Z born … 2016.
That the children are permitted to have an Australian travel document and to travel internationally.
The mother may apply for an Australian travel document (passport) for the children without first obtaining the consent of the father.
The mother be authorised to apply to the Registrar of Births, Deaths and Marriages, NSW that the children registered as X born … 2007 and Y born … 2009 be now registered as X Drummond and Y Drummond.
Pursuant to s 28(5) of the Births Deaths and Marriages Registration Act 1995 (NSW), the Registrar register the children’s names in the form specified in Order nine herein.
The Court forward a sealed copy of this order to the Registrar of Births, Deaths and Marriages NSW.
That the appointment of the Independent Children’s Lawyer be continued for a period of 12 months from this date.
The father undertake (by provision of urine screen in accordance with the Australian/NZ Standard 4308:2008 or any subsequent approved standard) urinalysis for drug screening within 48 hours of a request to do so from the Independent Children’s Lawyer provided always:
(a)that such request shall not occur more frequently than once per calendar month with such request to be communicated by email, SMS or facsimile transmission to the solicitor for the party or the party directly; and
(b)that the father provide copies of the results of the tests to the mother and the Independent Children’s Lawyer within 48 hours of receipt of same;
(c)for the purposes of this Order the father shall within 24 hours provide to the Independent Children’s Lawyer details of his mobile telephone number, email address, if available, and facsimile number, if available, and provide any change in such contact details within 24 hours of any change.
That any application for costs by the Independent Children’s Lawyer be made by way of written submissions filed and served within one month from this date with any submissions in response to be filed and served within 14 days thereafter and on completion of submissions judgment reserved to chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1918 of 2013

Ms Drummond

Applicant

And

Mr Cantor

Respondent

REASONS FOR JUDGMENT

These are parenting proceedings commenced by the applicant mother in May 2013 seeking final parenting orders in relation to the children X born in 2007 and Y born in 2009.
The mother’s application initiating proceedings sought, in summary, the following orders:
a)that the children live with the mother;
b)that the mother have sole parental responsibility for the children;
c)that the children have no contact with the father.
The matter has had a lengthy history that requires some explanation.
The father filed a Response to the mother’s Initiating Application. In that Response the father sought final orders that, in summary, provided:
a)that the mother and father have equal shared parental responsibility for the children;
b)that the children live with the mother or the respondent paternal grandmother;
c)that the children spend time with the father substantially alternate weekends during school term, half of school holidays and on other specific occasions;
d)various other specific issues orders.
The mother’s Initiating Application was filed in the Federal Circuit Court of Australia.
On 23 July 2013 an order was made that the father be served by way of substituted service by ordinary prepaid post to his last known residential address.
Following service the father filed a Response to the mother’s application on 8 October 2013. He sought orders in that Response that provided, in summary:
a)that the children live with the mother;
b)that the children have contact with the paternal grandmother on alternate weekends from Friday until Sunday and on other specific occasions.
On 9 October 2013 the proceedings were again before the Court for directions. The paternal grandmother, the subject of orders sought by the father, was joined as a second respondent in the proceedings and was ordered to file a Response to the mother’s Initiating Application. Otherwise, orders were made for the appointment of an Independent Children’s Lawyer and the proceedings were transferred to this Court.
On 30 October 2013 proceedings were listed before a Registrar of this Court and there was no appearance by or on behalf of any of the parties. Proceedings were next listed before a registrar on 8 November 2013. There was no appearance by or on behalf of the father. The Department of Family and Community Services was requested to provide a report (Magellan Report) as to its engagement with the family.
The matter was next before a Registrar on 9 December 2013 there was no appearance by or on behalf of the paternal grandmother and it was noted that the father was in custody. On 19 December 2013 the father was ordered to file an Amended Response together with any affidavit material to be relied upon in respect to any interim orders sought by him.
Relevantly, proceedings were next before the Court for interim hearing on 17 February 2014. On that day orders were made by consent as follows:
(1)Each party must:
a)contact the [C Group] Contact Centre [Suburb D] (“the Contact Centre”) within 7 days and arrange an appointment for assessment for suitability for supervision of the time the children spend with [X] born … 2007 and [Y] born … 2009 (“the children”);
b)attend the assessment;
c)comply with any appointments made by the Contact Centre for supervised time;
d)comply with all reasonable rules of the Contact Centre; and
e)comply with all reasonable requests or directions of the staff of the Contact Centre.
(2)If after the assessment intake procedure the Contact Centre is unable or unwilling to provide supervision as set out in Order 4 then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on 7 days written notice to the other parties and to the Court.
(3)The Contact Centre may recommend the parties or either of them to participate in a program or programs, and in that event either party or the Independent Children’s Lawyer may re-list the matter for mention on 7 days’ notice.
(4)If after assessment the parties are accepted by the Contact Centre as suitable for supervised time the Father and the Paternal Grandmother are to have contact with the children for a minimum of two hours per fortnight at times nominated by the Contact Centre and such contact is to occur at the Contact Centre and it is ordered that such time is to occur concurrently.
(5)The mother must deliver the children to and collect the children from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.
(6)In the event that the Contact Centre offers supervised time only at times which are less regular than specified in Order 4, then contact shall occur at the times that are offered by the Contact Centre.
(7)The time the children spend with the father and the paternal grandmother under Order 4 is to be supervised by the Contact Centre and the mother, father and the paternal grandmother shall equally be responsible for the costs of the Contact Centre in providing supervision of the father and paternal grandmother’s time with the children subject to the contribution by any party being waived by the Contact Centre.
(8)The father and the paternal grandmother must not attend the Contact Centre or its vicinity before the time with the children is to start and must promptly leave the Contact Centre and the vicinity at the time the time with the children is to end.
(9)If the Contact Centre during the currency of these orders declines or is unable to continue to provide its services, or the Director of the Contact Centre recommends in writing to the parties a variation of these orders, the Independent Children’s Lawyer may on 7 days written notice to the other party and the Court restore the matter to the list.
(10)If during the currency of these orders the parties and the Independent Children’s Lawyer agree in writing to vary these orders the parties have leave to list the proceedings in chambers urgently for consent orders to be made.
(11)The period of contact provided in these orders may vary by reason of the closure of the Contact Centre’s services during school and public holiday periods, and in such event, contact shall occur at times when the services can be provided by the Contact Centre.
IT IS FURTHER ORDERED THAT:
(12)The Independent Children’s Lawyer has leave to re-list the matter on short notice by application to the Court in Chambers in appropriate circumstances.
(13)Leave is granted to the Independent Children’s Lawyer to have photocopy access to all documents produced on subpoena in these proceedings.
(14)The matter is adjourned to Wednesday 26 March 2014 at 11.00 am for further directions before the Docket Registrar.
IT IS NOTED THAT:
a)The Independent Children’s Lawyer will contact Legal Aid in regard to obtaining funding for a Chapter 15 clinical psychiatric single expert.
b)Upon receiving approval for funding of the single expert the Independent Children’s Lawyer shall provide to the Court orders facilitating the appointment of the chosen expert.
On 7 May 2014 a Registrar ordered the preparation of a Family Report with proceedings to be relisted upon release of the Family Report. It was noted on this day that the father was in custody in E Gaol with a prospective release date of October 2014.
Following release of the Family Report and on 5 December 2014 proceedings were again before a Registrar. It was noted that the parties had not as yet attended Legal Aid Dispute Resolution to be arranged by the Independent Children’s Lawyer. The matter was adjourned to 12 February 2015 to facilitate that dispute resolution.
On 12 February 2015 the matter was again before a Registrar. It was noted that Legal Aid Dispute Resolution had not as yet taken place and in anticipation of the dispute resolution being undertaken, proceedings were adjourned to 9 April 2015 for trial directions.
On 9 April 2015 the parties had completed Legal Aid mediation. It was noted that the father was to remain in custody until August 2015.
On 14 July 2015 the matter was listed before the Court for judicial case management. Proceedings were adjourned to 11 August 2015 with directions for the respondent father to be notified that in the event of there being no appearance by or on his behalf on the adjourned date the matter would proceed to an undefended hearing.
On 11 August 2015 the father’s new solicitor had filed a Notice of Address for Service and sought time to obtain updated instructions from the father. Proceedings were adjourned to 11 September 2015 for further judicial case management, it being noted that the second respondent paternal grandmother was presently spending time with the children by arrangement with the mother and in anticipation of those informal arrangements continuing may elect to file a Notice of Discontinuance to remove herself from the proceedings.
On 11 September 2015 the matter was listed for further judicial case management. Upon noting there was no appearance by or on behalf of the paternal grandmother her Response was struck out and she ceased to be a party to the proceedings. Otherwise, trial directions were made as between the applicant mother and respondent father with affidavits to be filed no later than 28 days before the commencement of the trial.
The matter was listed before a Registrar on 27 October 2015 in respect to an interim application filed by the father on 8 September 2015 seeking interim parenting orders. It was noted that the father had not seen the children for three years and that the Court would be reluctant to entertain an interim application whilst the matter was awaiting allocation of final trial dates. The father’s interim application was discontinued by him and dismissed.
Subsequently, proceedings were listed for hearing for three days commencing 25 July 2016. The hearing was listed before Hannam J and on 25 July 2016 her Honour recused herself from further hearing the matter. Orders were made pending further order, in summary, as follows:
a)that all previous orders in respect of the children are discharged;
b)that the mother shall have sole parental responsibility for the children;
c)that the children shall live with the mother;
d)that the father shall spend no time with nor contact or communicate with the children including through third party;
e)that the children are to spend time with the paternal grandparents each alternate Sunday between 10.00 am and 4.00 pm provided they file with the Court by 5 August 2016 and undertaking that they will do all things necessary to ensure that the children do not communicate with, contact or spend time with the father and that they do not permit such communication or contact to occur and that they will not discuss the Court proceedings with the children;
f)that the parties are restrained from discussing the Court proceedings with the children.
Proceedings were listed for judicial case management before me on 15 August 2016. On that day it was ordered that the father within seven days file and serve the undertaking by the paternal grandparents provided for in orders made 25 July 2016. Otherwise, trial directions were made providing for updating trial affidavits to be filed no later than 28 days before the commencement of the trial.
In circumstances where the mother and father had failed to file their updating affidavit evidence, proceedings were listed before a Registrar on 3 November 2016. It was noted that the mother’s Legal Aid had been refused and she was awaiting the outcome of her Legal Aid appeal. The time for compliance for the filing of affidavits by the parties was extended to 16 January 2017.
On 20 January 2017 the matter was again listed before a Registrar. By this time the father had been released from custody and clearly his circumstances had changed, he having re-partnered with a child of that new relationship. The parties requested an updated Family Report. On 7 February 2017 an order was made for the preparation of an updated Family Report.

The report was released by the Court by orders made 1 August 2017 and proceedings were listed for judicial case management in the Less Adversarial Trial program on 20 September 2017.
On 20 September 2017 supplementary trial directions were made requiring the parties to file one consolidated affidavit of the evidence in chief and affidavits of any witnesses to be relied upon by no later than 15 December 2017. Proceedings were listed before a registrar for a compliance check on 22 February 2018. At the compliance check proceedings were listed for final hearing for three days commencing 14 May 2018.
On 3 May 2018 the father filed an Amended Response seeking, in summary, the following orders:
a)that the mother and father have equal shared parental responsibility for the children;
b)that the children live with the mother;
c)that the children spend time with the father for a period of six months from the date of orders each alternate Saturday from 10.00 am until 2.00 pm at the paternal grandmother’s residence supervised by the paternal grandmother, thereafter for a period of six months each alternate Saturday from 9.00 am until 5.00 pm and thereafter during school term each alternate weekend from after school Friday to 5.00 pm Sunday, half school holidays and at other times as agreed.
The final trial proceeded on 14, 15 and 16 May 2018. To facilitate further relevant evidence being made available to the Court on subpoena, proceedings were adjourned for further judicial case management to 15 June 2018 with any further subpoenas to be returnable by no later than 13 June 2018.
On 15 June 2018 proceedings were adjourned for final hearing dates to 18 October 2018 allocating two further days for trial. The hearing concluded on 18 October 2018 following the completion of submissions by counsel for the mother, counsel for the father and counsel for the Independent Children’s Lawyer.

Issues for determination

Ultimately, the final issues for determination were reduced to the question of whether there should be orders made for the children to spend time with the father, on what basis such time should happen or, indeed, whether there should be an order that the children spend no time with the father.

Context

At trial the mother relied upon her consolidated trial affidavit filed 15 February 2018.
The father relied upon his consolidated trial affidavit filed 3 May 2018, the affidavit of the paternal grandmother filed 24 June 2016 and the affidavit of his new partner Ms F filed 16 January 2017.
The mother is presently aged nearly 49. She has employment on a casual basis and, otherwise, in receipt of Centrelink benefits. The father is aged 38.
The parties first met in about mid-2006. At that time the mother had a child W born in 2002 then aged three from a former relationship.
The parties commenced to live together in about 2006. The father asserts that the mother was a user of illicit drugs. They separated in about late February 2011 after the father relapsed into illicit drug use following him discharging himself from the G Clinic drug rehabilitation program.
The subject children are the two children of the parties’ relationship.
The mother resides in comfortable rented premises in the outer western suburbs in Sydney. At the time of trial she was receiving about $23.00 per week child support from the father. She has been the primary carer for the children during the parties’ relationship and since their separation in 2011.
The mother became aware of the father’s illegal drug use shortly after they commenced their relationship when he conceded to her that he was using heroin. The father represented to the mother that if they lived together he would cease his illicit drug use but shortly after the commencement of their cohabitation the father was sacked from his then employment for the use of illegal drugs. The mother observed the father consumed marijuana regularly and use heroin sporadically.
In early 2007 the father commenced a drug rehabilitation program at H Centre. The program was to be for 12 months. The father attended for three days and discharged himself from the program. He again commenced using illicit drugs in mid-2007.
The father attended at the hospital following the birth of the parties’ first child clearly affected by drugs. Following the birth of the child often his drug use was in the company of his brother.
In November 2007 the parties argued over the father’s drug use and the father left the then premises. He returned a short while later to collect some things only for the mother to find that he had attempted to commit suicide by wrapping cable ties around his neck. This occurred in the presence of the child W. The parties separated.
The mother sought counselling assistance in relation to relationship issues in February 2008 but did not engage in an ongoing manner: Exh “G”. The parties reconciled in 2008. The father then in May 2008 again entered the H Centre program but lasted only a week before he self-discharged himself and resumed using heroin. The father commenced to reside with friends and in May 2008 participated in the J Program four months program. The father discharged himself after about 10 weeks in July 2008.
Regrettably, the parties’ relationship resumed again in late 2008 and the mother fell pregnant with the second child of their relationship, but the father once again returned to heroin use. Soon after there was an incident with the father in which he tried to inflict self-harm on himself by punching holes in the walls in the kitchen and hallway leaving blood everywhere. The father again left, to reside with his mother.
But in January 2009 the father whilst he had the child W in his care attended at public toilets at Suburb K in Sydney’s western suburbs to purchase illegal drugs. The mother demanded that he leave and she called the police. The father had left the premises before the police arrived.
Again the parties reconciled. The father’s drug use continued and the father again left the parties’ home to reside with his mother. Whilst at his mother’s he pawned his mother’s jewellery and father’s tools to get money for drugs. The father’s brother complained that other family members and friends had items stolen from them by the father.
The parties separated at this time for about five months with the mother having little knowledge of the father’s whereabouts and receiving no support from him for the children. Then in May 2009 the father returned to the J Program and completed the four month program in September. The second child was born during this period.
The parties again reconciled but within several weeks the father’s drug use resumed. The father again left the parties’ home to reside with his mother. Conflict continued with the police attending the home in September 2009 when the father attended at the home. In October 2009 the mother called the police when she found the father passed out in her home and tried to get him out. The parties separated again.
On 9 December 2009 the father attended at the mother’s home. He was clearly under the influence of drugs and was aggressive. The mother refused to permit him inside the residence and he roamed around the outside of the property for about an hour talking incoherently. At one stage he was standing in an esky in the front yard in his underwear with a hose running water onto the top of his head
The father was admitted to Suburb K Hospital by ambulance.
For a time thereafter the mother permitted the children to see the father under the supervision of the paternal grandmother. That time ceased in September 2010 after the paternal grandmother allowed the father to attend whilst under the influence of drugs.
The father entered a six month G Clinic Drug Residential Rehabilitation Program in November 2010. The mother took the children to see him there. In early January 2011 the father left the G Clinic program after only three months. The mother permitted him to return to her home. Within a week or so he was back on the drugs. He stole the mother’s gold ring and abused and threatened her. The police intervened in March 2011 and an Apprehended Domestic Violence order for a period of 12 months was made for the protection of the mother and the children: Exh “J”.
In June 2011 the father again enrolled in the J Program. He was shortly thereafter suspended from the program for a rule breach (theft of personal property) and again resumed taking drugs.
In July 2011 the father again enrolled in the J Program for the fourth time. In November 2011 he completed the program. During the program he met his current partner who was also in the program for drug abuse. The mother permitted the children time with the father again to be supervised by the paternal grandmother each fortnight.
The mother was seen by her general practitioner in January 2012 and a biopsychosocial assessment was undertaken. The mother’s principal issues were identified as recreational drug use, dentition and preventative health. She had a history of tobacco and alcohol abuse: Exh “I”.
In April 2012, the father completed the J Program. The mother became aware that the father had formed a new relationship while in the program. She would not permit the children contact with his new partner.

The W allegations

In October 2011 a neighbour of the mother exposed himself to the child W who was then aged eight. He, otherwise, exposed the child to pornography. The child attended supportive counselling in relation to the incident: Exh “G” at Suburb L Community Health Centre.
The mother concedes the child had subsequent behavioural issues including defiance for which the mother consulted her GP in about May 2011 with the child, under a Mental Health Plan, referred for counselling intervention.
The mother then asserts that on 5 May 2012 the child W, then aged nine, disclosed that the father had “sexually abused” her at the paternal grandmother’s home whilst the father was having overnight time with the children in the absence of his mother. The incident appears to have taken place on or about 25 November 2011.
On 10 May 2012 the mother made a police statement. The child was interviewed on camera by the Police Joint Investigation Response Team (“JIRT”). The father’s time with the children ceased.
As a consequence of these allegations the father’s contact with the children was stopped by the mother in May 2012. He has not seen the children since.
In March 2013 the child W made a further complaint of sexual abuse by the father but on this occasion the child related an alleged incident when she was about seven years of age, three years earlier. The child was again interviewed on camera by the JIRT team.
The father was criminally charged with several offences and found not guilty in late 2013.
A consideration of the evidence is inconclusive in that the child’s complaints as seen in the police video interviews (Exhs “R” and “S”) are inconsistent and contradictory. They are remote in time as to when the asserted incidents occurred. The child is clearly aligned with the mother and her complaints seem to follow immediately after the mother finds that the father is in a new relationship that the mother conceded upset her.
The position was made even less certain in considering the transcript of the father’s Court trial: Exh “M”. The evidence of the mother and child raise significant suspicions as to collusion and leading questions asked such that little or no weight could be afforded to the complaints made.
The child W is not the subject of these proceedings and it is not contended that the father as a consequence of this child’s allegations represents a risk to the subject children.
What is of concern is what consequences may result from the father coming into the subject children’s lives with the mother’s household including W, now aged 16.

Interim orders February 2014

In February 2014 interim orders were made by consent as set out above.
The children spent time with the paternal grandmother as ordered.

The Father’s criminal history: Exh “K” and “K1”.

The father has early offences from 2001 for dishonesty, drug possession, driving offences and illegal weapons possession. In December 2008 he was sentenced for assault and resist arrest and placed on a Good Behaviour Bond for 12 months subject to Probation and Parole supervision.
In June 2009 he was sentenced for possession of prohibited drug and again placed on a 12 months Good Behaviour Bond subject to Probation and Parole supervision for counselling, educational development and drug and alcohol rehabilitation.
Then in 2011 things went from bad to worse. He was charged with various offences including self-administer prohibited drug, offensive behaviour, goods in custody and armed with intent to commit an indictable offence. He conceded in his oral evidence that he was at the time armed with an extendable baton and a hunting knife. He later was charged with break, enter and steal and was sentenced in late 2012 to 12 months imprisonment suspended on entering into a Good Behaviour Bond for 12 months subject to Probation and Parole supervision.
He was later called up for breach of his Good Behaviour Bond. He was sentenced to three months full time imprisonment commencing in September 2013 for the offences in 2011.
In September 2013 he was charged with break and enter a dwelling house with intent to steal. He was sentenced to 12 months imprisonment commencing in September 2013 with a three month non-parole period.
Out on parole and in February 2014, March 2014 and May 2014 he was charged with offences of goods in custody and in June 2014 sentenced to five months imprisonment concluding in November 2014. His severity appeal was dismissed.
The mother concerned as to the father’s possible drug use did not then comply with the orders. The father failed a urinalysis test on 18 November 2014 that was positive for amphetamines.
The children were enquiring as to the absence of the father in their lives and in March 2015 the mother told them of his drug use and his dishonesty.
In February 2015 he was again charged with goods in custody and was sentenced to five months imprisonment concluding in July 2015.
On appeal as to severity in April 2015 he was ordered to enter into an Intensive Correction Order Bond subject to Department of Community Corrections supervision to “address his criminogenic needs”: He was released from custody in April 2015. This bond expired in October 2016.
Meanwhile in February 2015 the father was arrested and charged with break, enter and steal goods to the value of less than $60,000.00. The offence occurred in December 2014. The offence occurred prior to him being bound by an Intensive Correction Order in April 2015. In respect of this offence a pre-sentence report was provided in November 2015. The father attributed his ongoing offending to his illicit substance use, reporting an extensive history of heroin use and occasional methyl amphetamine use. He conceded that at the time of the offence being committed he was under the influence of heroin. The matter was remanded to late January 2016 for sentence and a report as to the suitability of the father for an Intensive Correction Order was requested. In the Intensive Correction Order assessment report the father was assessed as a medium risk of reoffending with his criminal needs being drug use, mental health, accommodation and relationships. Surprisingly, and notwithstanding his oral evidence at trial, the father reported that in January 2016 he was in full-time employment with a departmental enquiry of the father’s employer reporting that the employer “holds him in high regard”.
An Intensive Correction Order was made by the presiding Magistrate in January 2016 for a period of 18 months expiring in August 2017, during which time the father was required inter-alia to engage with the Department of Corrective Services. In July 2017 it was reported that he was erratic in his attendance for Community Service work. The Department reported on 19 July 2017 that the father was “able to identify that he is an egocentric person and that he generally just looks after himself which is the basis of many of their arguments but he is becoming more aware”. This is indicative of some conflict in the father’s present household.

Thereafter

Following the father’s release from custody in April 2015 he again entered in mid-May 2015 the residential rehabilitation program at the J Centre. In July 2015 he completed the Keeping Children Safe Parenting Program run by M Group. Thereafter he completed several other parenting courses. However, in July 2015 he commenced a relationship with his present partner Ms F who was also a resident at the J Centre. Their relationship, in breach of the program rules, developed and in October 2015 they were required to leave the program. Thereafter the father has resided with Ms F residing in her father’s property in the Region N area.
In 2016 their child Z was born.
The children continued to spend time with the paternal grandmother and from March 2015 that time was unsupervised on one day per fortnight. The children appear to be enquiring as to their father when with the paternal grandmother.
In June 2016 the paternal grandmother informed the children that the father and his partner were expecting a baby.
On 25 July 2016 Hannam J made orders pending further order, in summary, as follows:
a)that all previous orders in respect of the children are discharged;
b)that the mother shall have sole parental responsibility for the children;
c)that the children shall live with the mother;
d)that the father shall spend no time with nor contact or communicate with the children including through third party;
e)that the children are to spend time with the paternal grandparents each alternate Sunday between 10.00 am and 4.00 pm provided they file with the Court by 5 August 2016 an undertaking that they will do all things necessary to ensure that the children do not communicate with, contact or spend time with the father and that they do not permit such communication or contact to occur and that they will not discuss the Court proceedings with the children;
f)that the parties are restrained from discussing the Court proceedings with the children.
The children have had no engagement with the father since April 2012 yet have been significantly engaged with the paternal grandmother. At the time of trial the children were spending one day per month with the paternal grandmother.
The mother asserts that any time with the father by the children will adversely impact on W and expose the children to the risk of the father relapsing into illicit drug use. The mother seeks to avoid the subject of the father with the children.
Otherwise, the mother has concerns that the children’s stability with her will be at risk in uncertain circumstances with the father and his new partner who was previously an illegal drug user. The mother simply does not accept that the father will abstain from illicit drug use. The mother says that the children are presently in a “good space” now and does not want that disrupted. She has no photos of the father in her home expressing the view that such photos would be to the detriment of the child W.
It was put to the mother in her oral evidence that perhaps orders could be made for the children to have “recognition time” with the father several times a year under supervision. The mother expressed her view that she was reluctant but in the event that an order was made she would have to agree. Otherwise, in the event that orders for the children to have more substantial contact even day contact only with the father were made, the mother asserted that she would be “absolutely devastated” but would be able to keep her emotional response from the children.
In her oral evidence the mother conceded that the children are enquiring about the father especially in circumstances where they spend time with the paternal grandmother. The mother’s oral evidence was appropriately responsive to matters put to her and was clearly indicative of her concern for the children. She asserted her ongoing belief that her older daughter was, indeed, abused by the father as alleged.

The mother is supportive of the children having an ongoing relationship with the paternal grandmother reporting that she has trust in the paternal grandmother as “we have a relationship about the children”.
The paternal grandmother, an impressive witness, is supportive of the father being able to spend time with the children. She identifies as Aboriginal, of the O mob in Western Australia, as does the father and she says the children. An ongoing engagement with her will see the children able to enjoy and understand aspects of their culture. The paternal grandmother confirms that the children are enquiring as to the father when they are spending time with her. It appears that as best she can she is optimistic about the father remaining drug-free and, if necessary, is prepared to supervise the children’s time with the father including, if ordered, identification time only.
The father’s partner Ms F was responsive and thoughtful in her oral evidence. She was in the J rehabilitation program for alcohol dependency and also to complete the methadone reduction to abstinence program. Ms F has two children from previous relationships a son living independently, now aged 23 and a daughter now aged 10. Ms F has a shared care arrangement in relation to the younger child with that child’s father. There are no relevant orders. Ms F asserts that she now no longer abuses alcohol and has been drug-free since March 2015. She like the father has completed various parenting programs. She has previously been prescribed Seroquel for depression, Avanza for anxiety and Valium for her withdrawal from alcohol so as to avoid fitting. At trial she was prescribed medication free.
Ms F acknowledged her criminal antecedents. In March 2014 she was sentenced to a period of 12 months imprisonment with a non-parole period of three months in respect to charges of possession and supply prohibited drug and drive whilst under the influence. In June 2015 she was convicted of drive with mid-range prescribed concentration of alcohol and ordered to enter into a Good Behaviour Bond subject to Department of Probation and Parole supervision for a period of two years. She was, otherwise, disqualified from driving for a period.
As to the father Ms F described him as selfish and thoughtless that being a theme running through their arguments. She considered that this trait of his character had diminished somewhat during the course of their relationship.

Aspects of the oral evidence

The mother sees it as a good thing for the subject children to have a relationship with their half-brother Z and Ms F’s daughter while spending time with the paternal grandmother.
The father’s oral evidence was given with very flat affect in that it lacked emotional response. His answers were often vague as to time and place. He did not continue with his local Community Health engagement from shortly after his Intensive Correction Order expired until shortly before trial.
The father says that he works only two days per week having made a conscious decision to be more available to his new child. Regrettably, that decision does not take into account the needs of the subject children for appropriate financial support. His oral evidence on this issue was evasive, slow to respond but ultimately he conceded that he was working five days per week for some hours each day, a circumstance he had not informed the Child Support Agency of.
The father’s oral evidence also confirmed that he was Hepatitis C positive as a consequence of his historical drug use. He was diagnosed about 2014 but has not commenced any appropriate treatment to deal with the condition that he asserted damages the liver and presents a risk if using alcohol. His current partner he says has confronted him about getting treatment.
The father currently pays child support for the children at the almost insignificant rate of $35.40 per month plus a small additional payment in relation to arrears through the Child Support Agency. Otherwise, the mother has received no financial support from the father since 2011.
The father conceded that he would be disappointed should orders be made for the children to have identification only contact with him and he was encouraging of his son Z having a relationship with the subject children through the paternal grandmother who would be able to provide information to him as to the children’s progress and development. In oral evidence he agreed that parental responsibility should be with the mother with an obligation for her to consult him.

The Family Consultant

In these proceedings the Family Consultant had provided two reports. The first dated 19 November 2014 (Exh “E”) and the second dated 28 July 2017 (Exh “D”). The reports were updated by her oral evidence.
In the early report in late 2014 the Family Consultant observed that the children had established relationships with the mother, her elder daughter and the paternal grandparents. At that time the child X commented that she missed the father but had no understanding of where he was and why she was not seeing him. The family Consultant expressed the view that X would begin to ask questions of the mother and the paternal grandparents about the father’s whereabouts. Conversely, she may not ask questions and create an internal story to explain his absence from her life and she may internalise blame for him not being in contact with her. At this time the Family Consultant was of the view that it was important that some information be shared with the children about where the father was and why there had been no contact for an extended period of time.
As to the father, the Family Consultant opined that he posed numerous risks to the children. The father appeared to be frank and open when discussing his previous drug use during interview and appeared to have some insight and understanding of addiction and coping mechanisms. However, he also appeared to attribute some of his drug use to his relationship with the mother. The Family Consultant noted that the parties had no communication regarding the children and that it was possible that the father may not be a dependable person to make decisions in the children’s best interests. Importantly, the mother’s belief that the father had sexually assaulted her older daughter was likely to make shared parental responsibility untenable.
In circumstances where the mother’s older daughter believed that she had been sexually assaulted by the father and where the mother supported the view it was likely to cause distress to the older daughter if the children were to spend time with the father, such may impact adversely on the sibling relationships. In recommendations in the context of this early report the Family Consultant recommended:
a)that the mother have sole parental responsibility for the children;
b)that the children engage in therapeutic services to assist them to understand the father’s absence from their lives;
c)that the children spend no time with the father;
d)that the paternal grandparents spend unsupervised time with the children unless the Court considers that they are unable to prioritise the children’s needs above those of the father.
The updated Family Report from the Family Consultant was completed in July 2017. The Family Consultant identified the significant issues in dispute being appropriate arrangements for parental responsibility and whether or not the father poses an unacceptable risk of harm to the children and whether or not they are to spend time with him.
On interview the father reflected some of his self-centredness. He thought it would be positive for the children to have him in their lives and could not identify any negatives about this other than if the older daughter told the children about the sexual assault allegations against him. Otherwise, he informed the family consultant that the children would still enjoy seeing him notwithstanding the wishes of the mother because they would, otherwise, feel like there was something missing from their lives. He considered that he could assist the children with any anxiety and be a positive role model.
In the context of this report the children were interviewed. X presented as a polite friendly girl of almost 11 years of age. She was aware of the father’s new relationship and that there was a child of the relationship. She reported to the Family Consultant that she felt sad, uncomfortable and disturbed about not seeing the father in that he was not there for her when she needs him. She had some insight into her father’s criminality. She was ambivalent about whether she wished to see the father considering that there were many unknowns about him. X reported that her older half-sister had never spoken about the father with her.
The child Y was described by the Family Consultant as a softly spoken reserved boy. He was eight years of age at the time of interview. He also was aware of aspects of his father’s criminality. He said he did not remember the father much and did not think about him because he had not seen him for many years. He was ambivalent about seeing his father but was aware that his mother would not be happy if he did so out of her concern because of “bad things” the father had done.
The children were not engaged in an observation session with the father because they had not spent time with him for some years and had limited or no memory of him. The commencement of any relationship with the father, suggested the Family Consultant, would need to be done with therapeutic assistance and support.
In evaluation the Family Consultant reported that if the children were to spend time with the father the level of risk could be reduced by supervision and drug testing but such was not a long-term option.
Otherwise the Family Consultant opined:
The issue regarding the allegations that [the father] sexually assaulted [W] is significant as they directly impact on [the mother’s] mental health and parental functioning. It is noted that the father was found not guilty at trial of those offences. However, the mother firmly believes that the child was a victim of the father. From her perspective, it is likely to be highly stressful for the children to spend time with the person she believes sexually assaulted her daughter. This is likely to place significant stress on her mental health and this, in turn, is likely to negatively affect her parenting. She may become hypervigilant regarding the children’s safety, whether this is appropriate or not. Similarly if [her daughter] was sexually assaulted, or believes that she was sexually assaulted by [the father], this is likely to have a significant negative affect on her mental health, as it will effectively bring [the father] back into the child’s life via the other children. [W] may also worry about [X’s] safety with the father and she may tell [X] about her experiences in an effort to educate [X] and protect her.
There are risks and benefits associated with [X] and/or [Y] coming to have knowledge of [their half-sister’s] alleged experience of abuse by the father. These risks and benefits are likely to vary depending on the timing and means by which this information is provided to or discovered by the children. If the children are informed, they may view [the father] negatively and may be fearful of him. If the children are spending time with him, and find out in adolescence, for example, this is likely to have a significant impact on their relationship with him and likely to cause them significant psychological conflict. It may also negatively affect their relationship with [their half sibling] if they choose to align with [the father]. If the children are not informed, and find out accidentally, this is also likely to have a significant negative impact on their relationships with [the mother], [father] and their half sibling and is likely to have a significant negative effect on their mental health…
If the court finds that the children are not an unacceptable risk of harm in spending time with [the father] and it is not considered that the mother has been malicious but genuinely believes he sexually assaulted [her older daughter], then the court will need to determine whether or not [the mother] can tolerate the children spending some time with the father without it having a significant negative effect on her mental health.… This may still cause significant problems for [W], and the sibling relationships, and the court will need to determine whether establishing a limited relationship between the children and [the father] is more important for the children than maintaining their sibling relationship and their [half siblings] mental health.
As to the father, the Family Consultant said that the father’s view that the children could only have positive experiences of him is considered self-focused and lacking in reflective functioning. The father did not appear to have any ability to communicate with the mother regarding the children.
At trial the Family Consultant was required for cross-examination.
As to the suggestion of recognition or identification contact only the Family Consultant said:
I think that for these children, when I met them they were certainly curious about dad. And I don’t think recognition time will change that. I think it may even heighten their curiosity about him if they were doing something, like, four times a year contact. So it could go either way. It could be a positive thing for them: it could also not be a positive thing for them. And I think, I believe I said in my report as well, there could be a flow-on effect to the children’s relationships, particularly with their sister.
There would be an ongoing need notwithstanding only recognition contact for the children to engage in introductory therapeutic processes:
And it may not need to be as intensive. But I think that there would need to be some conversations had with the children to just let them know what’s going to happen – from an independent person they might need to take a little bit of time to develop some rapport with that counsellor, and just to support them with any questions that they might have or any worries that they might have.
As to the impact on the mother of orders for the children to spend more substantial time with the father, the Family Consultant expressed significant concerns as follows:
My assessment is that it would be likely that [the mother] would experience very high degrees of anxiety. It’s probably unlikely that she will be able to hide that from the children. And even if she did try, it would likely come out in her parenting anyway. She may become very hyper-vigilant to risk even if it’s not there, if it were to be imagined risk. She would – that constant state of anxiety may make her less able to respond to the children’s emotional needs because she may be in a position where she’s overwhelmed by her own – by her own feelings and the children’s in addition to that. That’s likely to flow-on to the subject children, but also to [W] which may then have a knock-on effect with [X] and [Y]. So it may become a household that’s full of anxiety and hyper-vigilance. The children will – if that were to occur there’s no way that the children would not feel that whether it was direct or indirect through [Ms Drummond].
Would it be fair description of what you’ve just described as to what may occur in the household is it could become an emotionally dysfunctional household for the subject children?‑‑‑Yes.
The impact of such time on W was considered thus:
She – she may be concerned for [Y’s] and [X’s] safety. But she also may feel like she was not believed. And that she is somehow – she may believe that she is somehow responsible for the – for [Y] and [X] being – spending time with [the father], because he was found not guilty at trial for those allegations.
And in your assessment, in those circumstances could there be a danger that [W] may attach some blame to her mother for allowing a circumstance to arise where [X] and [Y] are going to spend time with their father, despite [W’s] view of the past? Yes.
And if that were the case that, certainly, would have a detrimental effect on the mother/child relationship between the two of them, wouldn’t it? Yes.
As to the father’s more recent rehabilitation efforts the Family Consultant said:
MR MORLEY:   In the second family report at the end of paragraph 71 – that’s on page 16 – that’s a paragraph as you can see from its commencement where you’re discussing [Mr Cantor’s] previous history of drug use, and criminal offending and so forth. The last sentence of that paragraph:
Given he had long-term drug abuse issues it is possible that he will need long-term support to remain abstinent.
The evidence from the father has been that from the start of 2017 he engaged with support services in about February. And then he engaged with support services in November. And then he commenced with support services with [P Clinic] in the [Region N] starting 1 March of this year. Now, in that context of what you’ve put in that paragraph 71 do you think that that engagement is adequate for someone in his circumstances of long-term drug addiction?   No.
Would you expect someone who was carefully following their recovery path and who was conscious of the dangers through their life would be engaging on a regular basis, say, at least monthly if not more regularly with support services for recovery?   Yes.
And would you suggest that someone who has not done that perhaps doesn’t have as much insight into their recovery as would be preferred in circumstances where they are proposing to come back into the lives of the children after six years absence?   Yes.
As to the father’s capacity to properly reflect upon the children’s emotional and psychological needs, the Family Consultant said:
And in the context of his intensive correction order supervision [the father] seems to have self-assessed himself with his parole officer or supervising officer as someone who was egocentric. Now, on your reflections on his presentation and so on before you what would you say about that?   He certainly presented at times as being self-focused, and putting his needs to see the children above their needs and what might be affecting them in seeing him, or not seeing him.
So in that regard I think you’re making some comment about his reflective capacity; is that right?   Yes.
Could you just quickly, just for the purposes of this matter, give me an overview of how you perceive his reflective capacity and what it actually means?   Reflective capacity is the ability to look at your own behaviours, thoughts, patterns and be able to identify where those behaviours have negatively impacted other people, including the children, and be able to identify those, recognise what the precursors are, what the triggers are, and then be able to take action to do something different, to – to make – make changes not only for yourself but also for other people, including the children in this situation. With [the father] when he was talking about the – that he would only have a positive impact on the children or the children’s experiences of him would only be positive was one of the times where it appeared to me that he was not able to reflect well, and he may not have a high capacity in that regard because he may be unable to be critical of himself and therefore take action to make changes.
And in relation to that assessment that also presents as a difficulty in relation to the children being reintroduced into his life. Would that be right?   Yes.
[The father’s partner] in giving her evidence, I think in response to a couple of questions from me – if you would just excuse me a minute – when I confronted her with his own self-assessment of his egocentricity in terms of his intensive correction, what he told his counsellor, certainly was of the view that he was, to some extent, self-centred. Let’s see if I can find her words:
He can be selfish, thoughtless –
and it was a theme running through their own arguments in their interpersonal relationship. Would you expect that would also be as a consequence of his lack of reflective capacity in their relationship?   Yes.

As to the father he has, by his own conduct in the past at least until late 2015, abdicated his relationship with his children. His conduct within the relationship with the mother was aberrant and reprehensible. His personal conduct in his addiction to illicit drugs and his criminal behaviour would in other circumstances see a strong presumption in favour of a no time order. As conceded by the family consultant and supported by evidence from the father and his partner the father has on balance turned his life around. He appears to be in a settled personal relationship with his partner with a young child of that relationship. However, in the context of the history of himself and the partner significant caution must be exercised in considering on what basis some relationship with the father could be implemented. The father has some overarching psychological indicia referred to in the evidence above that leads to some reservations as to his long-term capacity to be reflective as to the proper needs of his children. In such a circumstance there is a clear indication to him having a limited relationship with the children until such time as they are older and perhaps can form a view as to their future relationship with their father. Otherwise, of course, it may be that the father returned to his behaviours of old will see his relationship with the children end. Such as a matter for him. To monitor the relationship going forward and is contended by the Independent Children’s Lawyer it is appropriate that the Independent Children’s Lawyer’s appointment be extended for a period of 12 months with the Independent Children’s Lawyer having a power to require the father to undertake random urinalysis testing with any failure by him to properly undertake such testing terminating his time with the children until such time as a clear test is provided.

Section 60CC(2)(b) – need to protect

Section 60CC(2)(b) provides:
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In Amador v Amador [2009] FamCAFC 196; (2009) 43 Fam LR 268 the Full Court said:
[94]A finding by a trial judge in a children’s case under the Act that a party has assaulted another party or a person can have significant impact on the findings made on the matters the court is required to consider under s 60CC of the Act. The provisions of ss 60CC(2)(b), 60CC(3)(f),(i),(j) and (m) would require a consideration of the impact of any finding of fact as to violence perpetrated by a party seeking a children’s order.
[95]The best interests of a child the subject of an application for a parenting order must require that the court determine relevant allegations of violence where that can be done. The consequence of placing a child under the supervision and/or care of a person who has been violent may be far reaching and very detrimental to the child’s welfare. The more serious the allegation of violence the more important it will be to the child to investigate and determine the allegation. As stated earlier we regard an allegation of rape by the father of the mother to be a very serious allegation which should, if possible, be determined.
[96]It is important, in our view, not to confuse what has been said by the High Court and the Full Court as to the obligations on a trial judge to make positive findings of fact in relation to allegations of abuse or sexual abuse against a child where parenting orders are sought and where the test to be applied is “unacceptable risk”, with the circumstance in a parenting case where allegations have been made of domestic violence and/or assault by one party upon another. In the latter case it will be necessary for the court to make findings where the evidence enables that to be done.
This is an overwhelming consideration and must be given priority over issues as to relationship as discussed above.
On the evidence before the Court relating to the allegations made by the mother’s older daughter the substance of the allegations cannot be substantiated on the balance of probabilities. Needless to say, notwithstanding the older daughter and the mother have a clear position that the father’s conduct was as asserted, that may or may not be the case. The mother does not contend that the subject children are at risk by reason of this asserted conduct. The important issue, as identified by the family consultant and in submissions, was nevertheless the impact of the subject children having a relationship with the father in such circumstances where that relationship may have an impact on the mother and her parenting capacity and, of course, on the relationship between the older daughter and the mother and her siblings. On the evidence this is the primary issue of risk.
The secondary but still significant issue of issue of risk, arises from the father’s historical aberrant conduct involving family violence in his relationship with the mother, illicit drug use, failed rehabilitation and his criminal history. Coupled with this to a lesser degree is the history of his present partner. As discussed above, circumstances for the father have significantly improved since 2015 and he appears in the intervening period to have achieved some level of stability in terms of his personal conduct and his interpersonal relationships. However, as opined by the family consultant, once a drug addict always a drug addict with recovery being a lifelong task. It will be up to the father to demonstrate on an ongoing basis that he remains in recovery as any regression by him will impact upon any relationship he may have with the children.
The children are of an age where there is but a few years between now and the time when they may perhaps seek out their father on their own. It seemed inherent in submissions that such an age is 14. Thereafter they will need to deal with the father on attaining 18 as adults.
However, these protective considerations are clearly indicative of any relationship at present between the children and the father being on a limited and carefully controlled basis. Subject to future developments, it will be a matter for the mother to consider whether she agrees to an expansion of any arrangements ordered by the Court.
This consideration, which is to be given primacy, is in itself supportive of orders substantially reflecting the minute of orders tendered by the Independent Children’s Lawyer: Exh “X”.

The additional considerations: s 60CC(3)

Section 60CC(3) sets out the additional considerations:
a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
At best the evidence is supportive of the children being ambivalent in relation to their views as to the father. This is not surprising having regard to the background circumstances discussed in detail above and in terms of X reflective of the fact that she has become aware in a fashion of the allegations made by her older half sibling. Little weight can be attached to this consideration in the context of this matter overall.
b)The nature of the relationship of the child with:
i)Each of the child's parents; and
ii)Other persons (including any grandparent or other relative of the child);
The nature of the relationship of the children with both the mother and father is discussed above. Otherwise, the children have a close relationship with their older half sibling. To her credit the paternal grandmother enjoys a warm and supportive relationship with the children and in this regard it is to the mother’s credit that she proposes to continue to promote that relationship in the interests of the children.
c)The extent to which each of the child's parents has taken, or failed to take, the opportunity:
i)To participate in making decisions about major long-term issues in relation to the child; and
ii)To spend time with the child; and
iii)To communicate with the child;
In the background of this matter this consideration is of little consequence. The mother has been the children’s primary carer absent the father since 2012. The father has had little or no opportunity to engage in these aspects of the children’s lives by reason of his own conduct.
ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
The mother has provided financial support for the children throughout. The father has provided little in the way of ongoing support for the children financially. Indeed, significant arrears of child support were appropriated from a recent tax refund. His current child support obligation can be seen as minimal. He chooses to maintain, it appears, part-time employment for his own self-interested reasons in circumstances where his partner gives evidence that it is clearly open to him to obtain full-time meaningful employment and provide more significant financial support for the subject children. Perhaps this aspect is reflective of the father’s self-centredness as identified by the family consultant and his own partner.
d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
i)Either of his or her parents; or
ii)Any other child, or other person (including any grandparent or other relative of the child);
with whom he or she has been living;
Currently the children have no relationship with the father. The commencement of a limited relationship with the father would see them able to identify with a paternal figure, an important aspect of their ongoing psychological development as identified by the family consultant. There is some circumspection as to whether a change in their present circumstances to a limited relationship with the father may adversely impact on the mother’s ability within her household to cope. It is her view that she will be able to do so and it is hoped that she will seek out appropriate therapeutic assistance.
e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
This is not a significant consideration in the context of this matter.
f)The capacity of:
i)Each of the child's parents; and
ii)Any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The mother has demonstrated an appropriate capacity in this regard, in particular, for a significant period shielding the children particularly X from the allegations relating to the children’s half sibling. The evidence is problematic as to ultimately what impact some limited relationship with the father may have on the mother and within the mother’s household. To her credit she acknowledges that if such an order is made in the best interests of the children she will cope. However, to recognise this issue it is clear that at least now the children’s relationship with the father should be on a careful and limited basis.
The father’s capacity in this regard historically was a disaster. He exposed the children to aspects of his aberrant behaviour and by reason of his own conduct and quite properly the mother’s protective concerns he has had no contact with these children since 2012. His capacity remains to be tested even in terms of very limited time with the children. Should he fail the test, there is no doubt that either the Independent Children’s Lawyer in the next 12 months or the mother will end his time with the children for good reason. It now becomes a matter for him as to whether he is able to develop some scintilla of a relationship with his children that may form the basis of some more substantial ability for him to engage in their lives in future years.
g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
The subject children are still at primary school age. They presented well in the more recent interviews with the family consultant. Overtly, they made no reference to their indigenous background but that is an issue that will be addressed by time with the paternal grandmother. They are clearly enquiring as to their father with the prospect, as opined by the family consultant, that they may form an idealised view of him whilst he remains absent from their lives. They are approximate in age to a time when any no time order would most probably in the contention of the parties expire, that is, 14 years of age.
h)If the child is an Aboriginal child or a Torres Strait Islander child:
i)The child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
ii)The likely impact any proposed parenting order under this Part will have on that right;
This aspect has been referred to above and the children’s indigenous background will be addressed by their ongoing contact with the paternal grandmother and perhaps to some extent limited time with the father.
i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
There is no doubt that the mother has struggled with this relationship and the significant period post separation. She has at all times demonstrated an appropriate attitude to the children and to her responsibilities as a parent. The father’s conduct and legal issues subsequent to separation have presented significant obstacles for her in parenting these children and, of course, her older daughter. She has held her family together and no doubt will do so into the future.
The father during the parties’ relationship failed to demonstrate any appropriate attitude to the children and his responsibilities as a parent. His conduct led to significant absences from the family either in terms of incarceration or residential rehabilitation. Notwithstanding the mother’s efforts to promote his relationship with the children he continued on his self-destructive path. What may happen into the future is totally up to him.
j)Any family violence involving the child or a member of the child's family;
This aspect of the parties’ relationship is discussed in detail above. There is no issue as to the perpetration of family violence by the father, it is appropriately acknowledged by him in his evidence and reflected in various significant criminal penalties imposed on him during the relationship and thereafter.
k)If a family violence order applies, or has applied, to the child or a member of the child's family – any relevant inferences that can be drawn from the order, taking into account the following:
i)The nature of the order;
ii)The circumstances in which the order was made;
iii)Any evidence admitted in proceedings for the order;
iv)Any findings made by the court in, or in proceedings for, the order;
v)Any other relevant matter.
There is no current family violence order. A final order was made in the context of the parties’ relationship breakdown for a period of 12 months as referred to above.
l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
Whilst finality is a noble ambition in the context of parenting litigation it is trite to say that circumstances may change into the future. As best as can be fashioned orders will be made that hopefully will see an end to the litigation between these parties.
m)Any other fact or circumstance that the court thinks is relevant.
There is no other relevant fact or circumstance.
Parental responsibility: the mother seeks an order that she have sole parental responsibility for the children. The father, in his oral evidence, appeared to concede this position although it was not adopted by his counsel in final submissions. However, in light of the unequivocal evidence as to the perpetration of family violence by the father and the best interests of the children as considered above, this is clearly a matter where the presumption as to equal shared parental responsibility should not apply. It is appropriate that an order be made that the mother have sole parental responsibility.
With the presumption as to equal shared parental responsibility not applying the Court is not required to consider orders for equal time or substantial and significant time. In any event, no such orders are sought by any party to these proceedings in the overall context of this matter. Orders are to be fashioned in the best interests of the children.
A consideration of the background facts and circumstances and their enmeshment in the best interest considerations relating to the children as discussed above are not indicative of there being an order for no time. They are indeed indicative in the best interests of the children of orders reflective in a way of the minute of orders initially proposed by the Independent Children’s Lawyer: Exh “X”.
Such orders should recognise what impact there may be on the mother as a consequence of the children recommencing some relationship with the father, albeit through the supervision of the paternal grandmother. It is the paternal grandmother’s good relationship with the mother that is perhaps facilitative of such orders being made.
There is no issue as to the children living with the mother and no issue as to the children’s surname being changed.
The father’s past conduct is clearly indicative of there being appropriate injunctive orders made in line with those orders as sought by the Independent Children’s Lawyer.
Otherwise, as submitted by the Independent Children’s Lawyer, it is appropriate for the mother to engage the children in therapeutic assistance in an effort to understand their current family situation. Such an order is appropriate in the interests of the children and the therapist should be provided with a copy of these reasons for judgment and orders made.
It is proposed that the Independent Children’s Lawyer continue for a period of 12 months from the date of orders and that continuation will oversee the mother’s obligation to engage the children (and hopefully herself) in appropriate therapy prior to the children seeing the father some months hence. However, should the mother fail to appropriately engage the children in such therapy it should not be a bar to the children commencing some contact with their father. It is hoped that the mother will promptly engage the children in therapy in their best interests.
The continuing appointment of the Independent Children’s Lawyer will also be able to monitor the father’s circumstances at least in terms of drug use in the foreseeable future.
In all of the circumstances, it is in the best interests of the children that orders be made as set out at the forefront of these reasons for judgment.

I certify that the preceding one hundred and sixty-eight (168) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 19 December 2018.

Associate:

Date: 19 December 2018

[2018] FamCA 1096

19 December 2018

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Injunction

Costs