EDMONSON & EDMONSON

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDMONSON & EDMONSON

[2016] FCCA 1377

Catchwords:
FAMILY LAW – Entrenched parenting dispute – mother alleging serious and extensive family violence – father wholly denying violence and asserting allegations wilfully invented – Independent Children’s Lawyer submitted truth somewhere between the parties’ positions – child clearly enjoying relationship with father – family report writer recommending increase in time – interim orders made as suggested by Independent Children’s Lawyer.

Legislation:

Family Law Act 1975, s.60CC

Goode v Goode [2006] FamCA 1346

Applicant:

MR EDMONSON

Respondent:

MS EDMONSON

File Number:

MLC 11759 of 2014

Judgment of:

Judge Burchardt

Hearing date:

1 April 2016

Date of Last Submission:

1 April 2016

Delivered at:

Melbourne

Delivered on:

17 June 2016

REPRESENTATION

Counsel for the Applicant:

Mr Stanley

Solicitors for the Applicant:

Berry Family Law

Counsel for the Respondent:

Ms Smallwood

Solicitors for the Respondent:

Ambi Associates

Counsel for the Independent Children’s Lawyer:

Ms Jenkinson

Solicitors for the Independent Children’s Lawyer:

Wayne Richard Dunstan

INTERIM ORDERS

That order 3 of the orders of 24 April 2015 and order 1 of the orders of 6 October 2015 be discharged.
That the child X (“X”) born (omitted) 2008 spend time and communicate with the Father upon acceptance at (omitted) Children’s Contact Service (formerly known as (omitted)) or any such other service as may be nominated by the Independent Children’s Lawyer as follows:
(a)For four (4) occasions from 11.00am until 4.00 pm each Saturday;
(b)For four (4) occasions each alternate weekend on both Saturday and Sunday from 10.00 am until 4.00 pm each day;
(c)
Thereafter each alternate weekend from 10 am Saturday until

6 pm Sunday, for four occasions; and
(d)Thereafter, each alternate weekend from after school Friday until 6.00 pm Sunday.
That for the purposes of changeover pursuant to these orders the parents utilise the facilitated changeover service offered by (omitted) Children’s Contact Service (formerly known as (omitted)) or any such other service as may be nominated by the Independent Children’s Lawyer (‘the Service’) and comply with all reasonable directions of the facilitators of that service, save that time pursuant to order 2(d) will commence at school.
That within 7 days the mother and father do all such things and sign all necessary documents to enable the parties to utilise the Service contemplated in order 3 above.
That pursuant to s.62G(2) of the Family Law Act 1975 the parties and X attend upon a Family Consultant for the preparation of an updated Family Report AND IT IS REQUESTED that Ms S undertake such updated report.
That the matter be re-listed for final hearing before Judge Burchardt in the Dandenong Registry of this Court on 30 March 2017 with an estimated duration of 2 days.
That the Applicant make, file and serve any further material he intends to rely upon not later than 21 days prior to trial.
That the Respondent make, file and serve any further material she intends to rely upon not later than 14 days prior to trial.
That the Independent Children’s Lawyer make, file and serve any material they intend to rely upon no later than 7 days prior to trial.
That all parties make, file and serve an outline of case document two (2) business days prior to trial.
Until further Order, the father and mother, and his/her servants and agents, be and are hereby restrained by injunction from discussing the within proceedings with or in the presence or hearing of X and from permitting any other person so to do.
Both parties forthwith do all things necessary to engage with CatholicCare or such other organisation as may be approved by the Independent Children’s Lawyer for the purpose of non-reportable family therapy.

THE COURT NOTES THAT:

(a)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11759 of 2014

MR EDMONSON

Applicant

And

MS EDMONSON

Respondent

REASONS FOR JUDGMENT

Introduction

This is a parenting dispute about the best interests of a child, X, born (omitted) 2008. The father wants to spend more time with X and the mother seeks that X spends no time with him at all. The position of the Independent Children’s Lawyer is in between. For the reasons that follow, I propose to make the orders sought by the Independent Children’s Lawyer.

Agreed or Undisputed Facts

This case is replete with florid accusation and counter-accusation between the parents but a number of matters are not the subject of any significant dispute. The father was born on (omitted) 1978 (this is the date of birth given in his initiating application – it does not appear to be set out anywhere else). The mother was born on (omitted) 1976.
The father is originally from (country omitted) where his family still live and the mother is originally from (country omitted). The mother has an elder child by a prior relationship called A, born (omitted) 2001. The parties met in 2003 and cohabitation began in (omitted) 2005 (father’s version) or 2004 (mother’s version).
Although there is some difference as to exactly what happened, it seems clear that the parties worked together in a (employer omitted) at least for a period of time in (country omitted) but, ultimately, in 2007 they relocated to Australia. Although the matter is not addressed in the parties’ affidavit material, I was assured during the running of the trial that they came on skilled migrant visas.
The parties both obtained employment following their arrival in Australia, although there are disputes as to how much time they each worked and were able to buy a home in 2011 and at least a share in a property in (country omitted) in January 2014.
Separation took place on 23 December 2014 when the wife vacated the matrimonial home and went to a women’s refuge. An Intervention Order was taken out against the husband on 24 December 2014 on behalf of the mother. On the same day, the father came to Court and made an oral application for a watch list order, which was successful. Thereafter, he filed his initiating application on 3 February 2015. On the same day, the Court made orders for a s.11F report and interim orders were made in relation to property matters. Orders were subsequently made for the father to spend time with X, supervised by (omitted) Family Services. This took place, although it was ultimately ceased following a cessation of time by the mother following an incident on 27 September 2015 at (omitted), about which the parties are in vivid disagreement. Thereafter, further supervised time has taken place supervised by Ms C who has also provided a report to the Court.
Additionally, the Court has the benefit of psychiatric assessments of both of the parties by Dr P and a family report dated 11 March 2016 prepared by Ms S.

The Parties’ Affidavit Material

The parties have not filed (by average standards) all that extensive affidavit material. Given the nature of the dispute between them, this is one of those cases in which it will be more appropriate to concentrate upon what the parties actually said in Court.
It should be noted, however, that the parties’ affidavit material reveals those aspects of matters I have described as agreed or uncontroversial above. Where they do not agree is about the way in which the father behaved towards both the mother, A and X. The mother’s affidavits are replete with accusations of extremely significant and serious family violence, together with generally controlling behaviour, both financially and otherwise.
The father not only vigorously denies the mother’s assertions, he says they are maliciously fabricated. He says that this reflects a pattern of conduct reflected in the mother’s earlier separation from her first husband, A’s father.
This is an admittedly very, very broad-brush description of the parties’ materials but in my view, it is sufficient for these purposes.

The Matters Asserted At Court – The Opening By Counsel For The Father

Counsel for the father relied upon his summary of argument document and traversed the history of the matter before the Court. He referred to the 18 sessions of supervised time with (omitted) Family Services which he submitted were positive. The final session was 27 September 2015 with the matter due to return to Court on 6 October 2015. 27 September 2015 was not only the last day of supervised time by (omitted) Family Services, it was also the occasion of the significant incident at (omitted). Counsel asserted that the father’s position was that the encounter with the mother was accidental and that all he did was to say “(omitted)?”, that is, “how’s it going?” in (language omitted). Ultimately, an alternate supervisor was appointed and time eventually commenced with 12 sessions revealing a close relationship between X and the father. Counsel referred to the family report of Ms S dated 11 March 2016 which likewise recorded that X was not scared of her father.
Counsel said that it was not known if there would be charges arising out of the (omitted) incident but apparently charges had been authorised.
The father seeks to move to unsupervised time commencing with four to six hours on four occasions, then a full day at weekends for four occasions, then alternate weekends overnight. He then seeks to revisit the matter after the criminal trials are disposed of. He supported the interim orders proposed by Ms S and even if final orders were to be made, this is what he would seek. Ultimately, he sought the introduction of alternate weekend time from Friday until Monday with time in the alternate weekend, from school Wednesday to school Thursday and usual orders for school holidays and the like. It is the father’s case that prior to separation in December 2014, he was mostly at home with the children. A is now 15 and no orders are sought in respect of her. Counsel pointed to the fact that the mother’s work as a (occupation omitted) of a (employer omitted) commenced at 5.30 am and continued until 3.00 or 4.00 pm during which time the father would look after the children.
The father has undertaken a post-separation parenting course and undergone a psychiatric assessment with Dr P. He has paid for supervised time at considerable cost. Counsel submitted the mother does not want the father in her life or X’s and the allegations of violence are invented.

The Evidence Of The Father

In evidence-in-chief, the father said he works as a (occupation omitted) in a (employer omitted). He said that, since Ms C’s report, he has spent further time with X and last saw her at (omitted). He met X in front of the (omitted) with his own mother and went into the (omitted) and had a good time. He gave X back to Ms C and waited until the mother had departed. Time had also taken place on 20 March 2016 at (omitted) where he had taken X ice-skating. The father said that he had not received any notice of criminal charges at this stage.

The Father Under Cross-examination By Counsel For The Mother

Counsel put it to the father that he had been charged with threat to kill. He said he had contacted the police officer last week and was told that there had been no change. He said that nothing had been served on him. He denied that he had been charged with a breach of Intervention Order and a threat to kill.
The father said he was a (religion omitted). He separated from the mother on 24 December 2014 when she went to a refuge. He had no idea that this would take place, although there were some issues the day before. These were embarrassing issues.
The father said that in November to December 2014, the mother called Mr C (this is a phonetic rendering of what the father said). The father said, “[h]e sat with us for three to four days and we gave him $5,000.” Following the Christmas party in December 2014, the father picked him up. After that, the mother said he was not a problem but then a week later he left the house. I would interpolate and say that the inference that I understood that I was being asked to draw was that the mother was in a relationship with Mr C and left the father because of this.
The father said he had known Mr C for a year. He said, “normally, we call him Mr C.” It was put to him that he had denied knowing Mr C to the police and he denied lying to the police. He said, “[m]aybe this was because English is not my first language. I cannot remember what I said.”
I would interpolate and say that this passage of the evidence was given in a manner that I found thoroughly unconvincing.
The father denied any police involvement and denied being violent at work. He said this was a false allegation. He denied that he was dismissed for being violent when he was working in 2013 as a (occupation omitted). It was put to the father that one day a customer was derogatory to him and that as a result, he followed the person out and punched him. The father said this was not true and he did not do it. He said this was the wife’s fiction. He completely denied violence throughout the entirety of the relationship. It was put to him that he had told the wife that, if she walked off, she would die, to which he responded, “[w]hen could I say this? She was working.” It was also put to him that he had threatened honour killings and acid burnings and to cut off the head of the mother if she left him and he denied these categorically. He denied saying that he would put acid on the child. He denied saying, “[w]herever you go, I will find you.” He denied punching A in the face and said that he had not told A that she could not have a boyfriend. It was put to the father that he had shown videos of honour killings to the mother and the children and he denied this strongly. He said that he did not force them to watch videos, nor did he show them women being stoned to death. He denied saying, in respect to such women, “they deserve it.” He denied breaking A’s phone and denied saying that A’s father was a homosexual and a failure. He denied having a temper.
When it was put to him that he had had arguments with the mother, he said, “[o]f course I have had arguments with her. She was working too much.” He said, “[t]he mother worked like a man.” He said, “[w]e have two children. She was working 60 hours.”
The father was next cross-examined about the (omitted) incident. He approached the mother and X. He said he was going to the Centre to park his car. He saw the mother and X and said the mother approached him to shake his hand. He said, “hi” and she told him to go away. He went to his car. He drove past them again. He denied saying, “I'm still your husband,” and the other alarming matters asserted by the wife. He said he had seen the mother with Mr C, but denied that he had made a threat to kill the mother if he saw Mr C. He denied running his finger across his throat in the presence of the mother and X. He denied X was crying at all and said he did not see her. He denied that X said, “[h]e was going to kill us” and he denied that the mother threatened to call the police. He said he did not know he was in trouble in terms of breaching the Intervention Order and did not know that the mother had rung the supervisor. He said of course he was worried. He had done nothing wrong. He rang the supervisor, Ms G, because he knew he would be coming back to Court. He said that day was the settlement date for the parties’ properties. He was happy with the outcome but the mother was not happy because she had received a solicitor’s bill of $45,000. He accused the wife of inventing all aspects of the incident, save that the part he admitted. He asked rhetorically (as he did as he responded to a number of questions), “[w]hy did she not call the police on the spot?” He denied banging the wheel of the car. He said this was just an accident.
The father said he knew the mother historically. Allegations against her ex-husband were of a similar character. He said he did not see the mother on her phone during the incidents. He then, however, changed his evidence and said that he saw her holding the phone. He did not see X cry. He did not call X to come to him and did not drive past her twice. He denied again the hand gesture across his throat.
It was put to the father that he made a considerable number of calls to Ms G. He said he had called her some three to four times and texted her three to four times. He went to the police immediately after the incident. He went to (omitted) Police after work that night. He then went to (omitted) Police.
The father asserted he had a good relationship with X.

The Father Under Cross-examination By Counsel For The Independent Children’s Lawyer

The father said he had tried to tell the supervisor, Ms G, what the incident was. He said he did not do anything wrong. The mother waved her hand and he got in his car. He said, “I know what she tries to do.” He saw the mother when he got out of his car. She was 10 to 15 metres away and he was one metre from his car. He was asked by counsel why he did not get back into his car and he prevaricated. His answer was thoroughly unconvincing. He said, “[t]his was my mistake.” He said, “[i]t’s the biggest mistake of my whole life.” When it was put to him that he was aware there was an Intervention Order in place at the time, the father obfuscated again. He said he had no idea the mother did not wish to see him and no idea he should not talk to her. Once again, I would interpolate the father’s evidence was given in an entirely unconvincing way and I do not believe for a moment that he was unaware that the mother did not wish to see him nor that he was breaching the terms of the Intervention Order, as counsel, in fact, conceded he did.
The father said he proposed changeover at (omitted). He said maybe the mother said something to him during the (omitted) incident. It was an accident he had to drive past her and he had not seen X. He had not seen if the wife was crying while she was on the telephone. He knew she was uncomfortable from her body language.
The father was taken to Ms M’s report at paragraph 32 and he remembered the incident. When it was put to him that X should not be required to pass messages to the mother, he agreed that this was so. He said the parties should communicate by email or text message.
When taken to Ms C’s report at page 9 of 38, describing the changeover, the father denied that X was anxious at the start of the first meeting. It is clear from the terms of Ms C’s report (she was not required for cross-examination) that this is incorrect.
It was put to the father that he had smacked X but he denied this. He said, “[n]ever, I adore my child. I would never hit her.” He has never had to discipline her. He denied ever telling the mother that he would slap children to educate them. He said the Department of Health and Human Services (“DHHS”) had interviewed the children. There had been a similar incident with the mother’s ex-husband and she told X to make disclosures. He said, even in (country omitted), the mother was trying to put her former husband out. She accused him of assault and this was false. “She said she teaches the kid.” It was abuse but he had to keep silent.
When it was put to him that A had told Ms S that he threatened to burn her arm, he said, “[t]his is not true. Never.” Counsel put to the father an extract from page 35 of 38 of Ms C’s report. Counsel put various passages where the father was seeking to question X as to who was present at the family report. He admitted that he wanted to ask who had attended the report. And he admitted that he said he wanted to ask X why she had lied. He said, “her mum teaches her that.”

The father said the mother was harassing him at work by making false allegations. He said she has contacted Centrelink and told a lie to stop him getting benefits.
Once again, I interpolate that this evidence, most particularly about the alleged harassment at work, was utterly unconvincing.
Counsel put it to the father that X was scared of him when he was angry and recalled being smacked. He replied that this was not true and that the mother puts her up to it. He said, “before we come to Court there is always some allegation.” He said he did not want to have any contact with the mother at all but that email or text would be okay.
The father gave details of his expenses and earnings. He said he was living with a friend. He said he pays $1,000 per month rent or $270 per week. It emerged, in fact, that there is a house at the front and a unit at the back which the father lives in. His mother is shortly going to return to (country omitted) and the unit has normal facilities. He said he works as a (occupation omitted) and does the roster so he can take time off during school holidays.
At this point, by agreement or at least with no significant objection, a tape was played of an interview of the father with the police. This was about the (omitted) incident. The father relevantly said that he works until 2.00 pm in a (employer omitted) in (omitted). He works two jobs. One is from 6.00 am until 2.00 pm and the other from 5.00 pm until midnight in (omitted). It was a rush. He parked and saw the mother and X. He spoke in (language omitted). X asked him to come to her and the wife said, “[d]on’t get close to me.” He said, “[e]very Sunday we talk to each other. On the first visit she came and shook my hand.” He said that the incident occurred because on the Friday there had been settlement in respect to the parties’ houses. He had to give the wife $65,000, but her lawyer’s bill of $45,368 was larger than she had thought and she got mad. She lost the house and money as well. She knew the parties were returning to Court soon and there is an Intervention Order in place. He said, “[h]i, X.” This was normal. He said he did not trust the wife who did the same thing with her ex-husband. He said that the allegations about the incident were just revenge because of the $45,000 legal fees. He denied that the wife said, “[d]on’t come or I’ll report you to the police.” When it was put to him that he said he had seen her with Mr C, he replied, “I don't know Mr C. Who is Mr C?”
Further cross-examination by counsel for the mother did not take the matter further.
In re-examination, counsel asked the applicant what he meant when he said, “[w]ho is Mr C?” The father said the fact that he said, “[w]ho is Mr C?” does not mean that he did not know him. I have to say this answer is utterly unbelievable. The father was clearly lying to the police when he said, “[w]ho is Mr C?” as though he did not know him.

The Evidence Of The Mother

In evidence-in-chief, the mother confirmed that she has two jobs, one is in (occupation omitted) and she also has her own (omitted) business. Nothing more of any moment emerged in evidence-in-chief.

The Mother Under Cross-examination By Counsel For The Father

The mother confirmed that she worked in a (employer omitted) throughout the relationship in Australia. She started work at 6.00 am. She was made (position omitted) in 2011 and started generally at about 5.30 am. The children are quite independent. She said that she opened the business at 5.30 am two times a week. She had different shifts in earlier times. Separation took place in December 2014 and the father spent no time with the children for five and a-half months, apart from the s.11F interview.
The mother took issue with the completeness of the report of Ms M. She conceded, however, that after 40 minutes with the father, X was no longer nervous with him. The mother was not prepared to give the father any credit for assisting her to have time with X on Mother’s Day.
The mother said she is not a child psychologist but believed X is scared of her father. She says that she strongly believes what X has disclosed to FMC Counselling (“FMC”). The mother stated that she believes that when the supervisor is not close, the father hurts her again. She said that X does love the father and that the father must love X. When it was put to the mother that she had told Ms S that she proposed a continuation of indefinite supervised time paid for by the father, the mother denied this and said that she had only told Ms S that she wanted such time until the final orders were made. That remark is patently untrue as it conflicts with Ms S’s report and Ms S was not required for cross-examination.
The mother said she now proposed the father spend no time with X. The father would harm X.
The mother was taken to the (omitted) incident on 27 September 2015. She confirmed that the report of her call to the supervisor and the attendance of the supervisor was correct (see report page 38). She was taken to the report of the counselling session on 6 October 2015 at FMC, tendered as exhibit ICL1. It was put by counsel to the mother that X had not disclosed any gesture of the father putting his fingers across his throat to Ms G. The mother said she did not remember. She said it was a very emotional time for her. She confirmed that there was a Court hearing on 6 October 2015. At that hearing she had sought to stop all time between X and the father but supervised time continued. The matter was concluded before lunch. She was disappointed and not angry. She denied talking about the Court case with X. She said she did not usually talk about Court cases with her children. She did not comply with the orders made on that day.
The mother was taken to page 6 of 38 of Ms C’s report. On 30 October 2015, the report indicates that the mother asserted to Ms C that the Independent Children’s Lawyer had suspended supervised time pending the outcome of a child protection application. When this was put to her, the mother said that she had been instructed by her lawyers that the Independent Children’s Lawyer had suspended these orders. It was necessary to take a short adjournment as the mother became distressed. When the matter proceeded, she said that English is not her first language and that she had had a conversation with her lawyer who told her a further application would be made.
I do not believe this assertion. The mother is sufficiently fluent in English. She was plainly lying to Ms C.
When pressed further by counsel, the mother said that what she had told Ms C was not true but she was not lying. She used the wrong words. She said she did not want to comply with orders until the court date. She said that DHHS were involved after a notification from FMC and she did not comply with orders until further orders were made on 16 December 2015 by the Court. She said she did not know if the father should have spent time with X. She said she could not comment on whether the father and X had a bond. She did not see them together. She said she could only conclude from what X says. She said she did not believe there was a strong bond between them. She said there should be a bond between father and daughter. This was important. She said there should be no time, however spent, because of her fears and the threats that the father had made.
The mother said she was scared X would suffer injury with the father. She told Dr P about the violence since 2006. She was questioned as to whether X was present in March 2014 when the father allegedly slapped A, after which the mother said A’s face was swollen for three days. A was interviewed by Ms S but Ms S said she seemed rehearsed. It was put to her that A could not remember the father hitting her and was 13 or 14 years old two years ago when the incident allegedly occurred. The mother said A would remember it and it definitely happened.
Counsel cross-examined the mother about the family report made during the currency of the proceedings against her former husband with Mr N. It was put to her that paragraph 11 of the report, involving an interview in February 2011, showed the mother describing an entirely positive relationship with the father. The mother said this was true. She said physical violence started two years ago after he obtained citizenship. She said there was an assault in 2007 and that the father was emotionally controlling after that. There was no physical violence thereafter until two years ago and his behaviour got worse and worse.
These assertions, of course, are not consistent with her evidence in this case.
The mother then said that, if she told the truth, there would be consequences at home. What she had told Mr N was not true. She said that the father’s behaviour had become worse in the last two years. The father had a positive relationship with A in 2011.

The Mother Under Cross-examination By The Independent Children’s Lawyer

The mother said she had read all the reports, which did not reveal any threats by the father to X. She did not accept this. She said there was violence in the last two years. She said at times she was working and the children were left with the father. She had no choice. She did not apply for an Intervention Order because the father threatened her if she went to Court. She said the father said he would change but did not and that X was very scared of him before separation. He was okay until 2012, but started to hit X to educate her. He hit her face.
The mother was cross-examined about whether X had met the paternal grandmother. She said the language barrier might not assist. At the first visit X was scared.
When it was put to her that X did not discuss the (omitted) incident at intake with Ms C, the mother replied that this was what X had disclosed. She was seeing the new supervisor for the first time. She said X tells her that she is scared and X was anxious when she saw her father’s car. The mother was further cross-examined about what she had told Ms C at the intake and it is fair to record that I formed the clear impression that some of her answers were made up on the run.
It was put to the mother that changeover should occur at a supervised contact centre and she agreed this was a good idea. When it was put to her that it might be appropriate that time occur from school to school, she did not answer. The mother was further cross-examined about the incident at (omitted) but little of any moment emerged. The mother stuck to her story. The mother denied contacting the television program, A Current Affair, but said she had applied to the Child Support Agency. She was seeking to change the assessment because she believed the father was working more than indicated. She denied speaking to Centrelink. She then said that A Current Affair had contacted her. She said her details were given to A Current Affair and she spoke to that entity. She told them about the child support problems and the father working. She agreed it would be bad for X to see this.
In my view, this evidence was prevaricating. The mother was clearly involved with A Current Affair.
The mother said no one listens to her. She went to the police because of the threat the father made and took X to FMC because of Court advice that she needed counselling. She said that A spends time with her father, to whom she talks from time to time. She was not sure how communication with the father could occur. She said emails or messages were difficult after the threat to kill. She conceded that telephone time for X with her father would be okay. When asked what she thought the father would do to X, she said he would hurt her physically. She was not opposed to the father sending letters. She said that even under supervision, the father could injure her and X.
After this admittedly somewhat lengthy and in all probability somewhat turgid to read, paraphrase of the evidence, I turn to the objective evidence. I should emphasise that the above is not a transcript but rather is taken from my notes. It records those aspects of the evidence that struck me as being of significance.

The Family Report of Mr N dated 3 March 2011 (annexure E-4 to affidavit filed 4 March 2015)

The significance of this document created during proceedings between the mother and A’s father lies in the positive matters asserted by the mother at that time in early 2011 about the father. At paragraph 11, Mr N recorded:
“Ms Edmonson described a very positive relationship with Mr Edmonson. They met in 2005, commenced cohabitation in 2005, and married in 2007. Both she and Mr Edmonson were complimentary of each other and believed they share similar values and aspirations and have a very close relationship. Ms Edmonson was clear there has not been any violence in their relationship and that she feels respected and well supported, [both physically and emotionally] by her husband. She further regards her husband as having played a very positive paternal role in her daughter’s life. Their descriptions of how they managed the care arrangements for the 2 children clearly suggest that both parties are actively involved in the day-to-day care of A and X. During the joint interview, Mr Edmonson was particularly supportive and complimentary of Ms Edmonson. At no stage did he dominant the discussion or place any overt or implicit pressure on his wife. It was apparent to the writer that theirs is a relationship based on mutual respect and support.
I note that at that time Mr N recorded at paragraph 28 “A shares a very positive and nurturing relationship with both her mother and step-father ... A refers to her step-father as “dad” and appeared comfortable in doing so.”

The DHHS Section 67Z and Section 67ZA Response

The DHHS forwarded an undated report to the Court on 4 March 2015. This noted a report received by Child Protection on 24 December 2014 relating to the children in the care of their parents and noted that the mother had sought refuge for ongoing significant family violence perpetrated by the father. The matter proceeded for investigation. On 15 January 2015, Child Protection attended the mother’s new residence and the children were also present. No contact had taken place since the mother left the family home. The mother disclosed that the father used physical discipline towards both girls but that X was the primary target. She disclosed threats of harm made by the father to the effect that “I’ll kill your children and you if you divorce me”. The mother advised that she wanted to separate from the father from approximately 2012 due to ongoing family violence but had been discouraged by such threats.
A and X were interviewed by Child Protection on 18 February 2015 and disclosed family violence perpetrated by the father. Both said they did not wish to resume contact with him as a result. X reported that she was smacked “all the time” by the father and that this made her sad. A reported an occasion when the father slapped her on the face resulting in her having a swollen cheek.
The Department concluded that the children were not at risk owing to the mother’s protective conduct but went on to note the father’s application to spend time with the children and recommended that this not be permitted.

The Section 11F Report (11 March 2015)

The parties saw Ms P on 11 March 2015. The mother alleged a history of family violence that began prior to the family immigrating to Australia in 2007. She recorded the separation and the lack of time with the father since. She also recorded the father’s denials of family violence and his reference to the earlier family report. The mother reported concerns that the father frequently slapped X for minor misdemeanours and had threatened to kill X if the mother left him. X, at interview, confirmed that her father frequently slapped her and she had witnessed further violence between her parents. The father denied all physical discipline of the children. The parties’ accounts of events well commensurate with the affidavit material they have filed. I note that when the father saw X, she was reluctant to see him and told him that she did not wish to spend time with him because he had repeatedly slapped her. The reporter noted, however, that when the mother collected X at the end of the conference, she was similarly anxious and reluctant in her demeanour. Ms P recommended supervised contact and various other interim measures.

The Report of Ms M (2 October 2015)

Ms M’s report runs to 41 pages. It is not appropriate to set it out in any detail. It records an unsurprising initial hesitance on X’s part when she first met Ms G, but a rapid relaxation. Likewise, it reports considerable tension on X’s part when she first met the father but it is clear that within 40 minutes she relaxed.
The last occasion of supervised time was on 27 September 2015 when the (omitted) incident took place. The time itself appears to have taken place unexceptionally. The child was handed back to the mother without incident. On 28 September 2015, Ms G informed the Independent Children’s Lawyer about the (omitted) incident and paragraphs 38 to 40 record Ms G’s notes of what happened thereafter.
It is clear from those notes that both X and the mother were crying when Ms G arrived. X stated with a sad expression on her face, “[h]e was here ... he came over to me and called me to come to him.” She confirmed that this was her father. She said, “[h]e was walking and walked over to us. He wanted me to go to him, but I didn’t.” X was visibly upset with tears running down her face and was shaking. The mother told Ms G that the father had driven around and passed her twice. Once he got back into his car he put his hand up to his throat and ran his hand across his throat. X did not see this gesture. The mother was clearly deeply distressed.
Ms G then noticed that she had a number of calls from the father on her phone but she did not answer.
Slightly later X told Ms G that the father had asked her, “[w]ho is living at your house?” but she did not feel okay to answer him and did not do so. This was said to have occurred during the supervised time and Ms G had not noticed it.
The mother told Ms G relevantly that she had told the father “not to approach as her she did not want to have to report him”.
Ms G subsequently noted that she had received numerous missed phone calls and texts from the father. They were still coming in at

2:50 pm. She responded that she was not able to speak to the father at that time.
By way of final summary, Ms G noted at page 40:
“Time Spent between the father Mr Edmonson and the child X, has progressed positively.
All interaction has been caring, playful and appropriate.
X was a little anxious at the beginning of the 1st Period to Supervised Time; however, within 20 to 30 minutes appeared to relax and be more comfortable chatting and engaging with her father.
X always waits expectantly for her father to arrive, and is often reluctant for their time together to finish.”
The report generally concluded very favourably in respect of the interrelationship between X and her father.

The Report of Ms C (30 March 2016)

Ms C’s report, once again, is relatively lengthy and it is inappropriate to try and paraphrase it in full. I have already dealt with some of the matters the mother asserted to Ms C at the intake interview above. At page 8 of 38, Ms C recorded about X:
“X has appeared anxious when there has been a change in arrangements or where change is expected. As well as this, during the last supervised session (13th March 2016), it seemed that the release of the Family Report and recent media coverage of the father has heightened anxieties amongst family members.
For example, X was understandably nervous at the commencement of the first supervised session with the Togetherness Agency (19th December 2015); which marked a transition from no time with Mr Edmonson for a period of around three months to supervised time with a new Family Supervisor.
Having said this, X has settled into time arrangements with Mr Edmonson well (until recently). This has been noticeable by the way in which X separates from the mother easily. X comfortably approaches Mr Edmonson at the commencement of each session and exchanges affectionate cuddles with the father when departing.”

The report noted the, in my view, unsurprising awkwardness when X met her paternal grandmother (to whom she is unable to speak because they do not share a language). On 13 March 2016, X reported to the supervisor a number of times that she was scared about time progressing to unsupervised (this, of course, was at or about the time of the release of the family report).
The mother drew the supervisor’s attention to the father’s appearance on the A Current Affair television program where he was exposed for Centrelink fraud (something I have no doubt the mother was complicit even if she did not initiate it).
I note that at pages 36 to 37 of 38 the supervisor relayed concerns to the mother that X had raised about spending unsupervised time with the father and queried whether she had told X to share this information with the supervisor. I note, and this is telling, that the mother confirmed that she had done this. She explained that X had become quite distressed about the family report writer’s recommendations for unsupervised time. Nonetheless, the mother had acknowledged that supervised time had progressed well, but believed that the father was behaving appropriately because he was being watched.

The Family Report of Ms S (11 March 2016)

The report sets out the background to the dispute including the unremarkable conclusions of Dr P, unremarkable in the sense that he did not identify any concerning psychopathology or mental illness that would impact on either parent’s functioning and no imminent or foreseeable risk to the child or mother by the father. Indeed, I have not traversed Dr P’s reports at all as these conclusions are so straightforward. Ms S noted the history in the matter before the courts and DHHS involvement. She then turned to her interviews with the parties. At paragraph 18, Ms S observed:
“With regards to the allegations of family violence made by the mother, Mr Edmonson was dismissive but concerned about this portrayal of him. Mr Edmonson described an early history of him actively involved in X’s and A’s care. He maintained that he formed a close bond with both children. Mr Edmonson was adamant that the allegations of family violence commenced “after we separated ... I suspect she became involved in a new relationship and she made false allegations to put me out”.”
At the conclusion of the interview, the father confirmed that he had been told he would be charged with a breach of the Intervention Order, but Ms S noted it would be a matter for the criminal court to determine the extent and consequences of the breach.
The mother attended with the children and a male friend (unidentified) for support. The mother shared a negative appraisal of the father and continually referred to her experience of family violence and abuse.
At paragraph 23, Ms S recorded:
“Ms Edmonson acknowledged the finding of the psychiatric assessment but suggested that Mr Edmonson had the capacity to present well but still pose a risk “even when he was abusing us, he can be a perfect person”. She was aware of the positive report about supervised time from (omitted) Services, but seemingly dismissed the strength of this report, referring to the need to change the supervision service, “now, Ms C from Togetherness ... resumed in December 2015.” Ms Edmonson was unconcerned about feedback from a new supervisor and anticipated that this would be positive “she (X) mentions a good time and she is happy to go”. Ms Edmonson attributed X’s enjoyment of this time to the presence of a trusted adult. With regards to future arrangements, Ms Edmonson offered unconvincing support for the continuation of the father/child relationship.”
The mother was opposed to unsupervised time and proposed ongoing supervised time by a private professional supervisor.
X was interviewed by Ms S and remembered her father and mother arguing during the relationship albeit that they did so in (language omitted). She spoke of life at home “with mum and A and Mr J”. At paragraph 29, Ms S recorded:
“X acknowledged enjoying time with her father, supervised by Ms C. X suggested with dad alone it is a little bit scary. X said, “Mum’s a bit scared of me being with dad alone.” X reported having adopted some strategies to manage time with her father learned at counselling, “Tell myself it’s going to be okay ... take a deep breath.” X wanted the judge to know, “I love my mum and I love my dad.” X wished “this never happened” ... “Wish we were a good family ... I wish we were really close.” Observations of X with her father revealed they have formed a close and loving bond. X’s initial reluctance to see her father seemed forced. Within minutes of coming into contact with her father, X relaxed and became talkative and chatty with Mr Edmonson. There was no evidence of fear or anxiety in his presence. Mr Edmonson was energetic and loving towards X and she was responsive in kind. Mr Edmonson’s jovial manner assisted X to settle easily.”
A was also interviewed and, at paragraph 34, Ms S recorded:
“While A seemed eager to engage at interview, her reports concerning Mr Edmonson lacked spontaneity and seemed rehearsed. At the conclusion of her interview, A wanted to impress her fear of Mr Edmonson by sharing, “Did you see when I nearly started to cry?”
At paragraph 36, Ms S recorded:
“More recently, A remembered conflict between her mother and stepfather. She shared, “Mum is scared to buy things and she didn’t go out much with me.” A said, “Me, I was scared of him ... (but) ... I don’t remember him hitting me ... if I broke something, he would threaten to burn my arm or something.”
At paragraph 37, Ms S recorded:
“When asked, A shared, “I don’t think he (Mr Edmonson) should see her ... he might hurt her ... he says he loves her ... but he said he loved me.” In a non-convincing manner, A offered, “he left bruises on my back and everywhere”. A said, “I’m scared he will kidnap her or kill her is the worst”. Her expressed view seemed tainted with an element of catastrophising.”
Under her heading “Evaluation”, Ms S referred to the supervised time following psychiatric assessment and that consistently no concerns had arisen with regards to the relationship between the father and X. Ms S went on at paragraph 39 to say:
“If X’s relationship with her father is to continue and to develop and extend then they need opportunities to spend time together in a naturally occurring manner. Unsupervised time is recommended. While Ms Edmonson’s concerns are noted, X did not present as fearful of her father and there is no clear evidence to suggest that X is at an unacceptable risk of harm in her father’s unsupervised care. In the absence of clearly identifiable risk, there is no benefit of supporting a continuation of supervised time. A resumption of time that occurs in a graduated manner is supported. This will assist X to develop increasing trust while spending time with her father.
An immediate introduction of unsupervised time with X that increases over a period of perhaps six months is supported. X would likely manage time with her father for four to six hours one day on the weekend each week for one month. Time could increase to six to eight hours on alternate weekends on Saturday and Sunday from 10 am till 4 - 6 pm for one month and then introduce overnight time on alternate weekends. X should continue to attend counselling to assist her to manage the changed arrangements.”
I note that Ms S referred to the ongoing criminal proceedings and the fact that the outcome might require a review of the recommendations made. Ms S also said at paragraph 42:
“It is preferable that the parents share parental responsibilities and that X experiences both of them seeking to be involved in her future care and upbringing. However, it is suggested that caution be exercised before supporting Mr Edmonson’s involvement in X’s schooling and education. A review of X’s experience and assessment of the parents’ compliance and the appropriateness of the arrangements may be required in six to eight months. Changes relating to an increase in time and parental responsibilities could then be made to take into account X’s needs and interests.”
Ms S went on to recommend that the issue of parental responsibility should be deferred, that X live with her mother and that an immediate introduction of unsupervised time occur (a regime for this was set out).

Findings About The Credit Of The Witnesses

As Ms S, amongst others, has observed, much in this case turns upon the assessment made by the Court of the two primary witnesses. There are very serious disputes between them as to what happened on various important occasions. At the heart of the matter is whether the father has been violent either to the mother and/or the children and, if so, the extent of it. Countervailing it, the Court has to evaluate the father’s absolute denials of violence and his interrelated assertion that the mother invents them.
The difficulty is, and it is of course regrettable to have to say this, that these were two almost equally dreadful witnesses. I have made a number of comments about each of their evidence in passing when traversing what they said. I should make it clear that on numerous occasions the father’s answers were extremely unconvincing. He had a habit of answering questions with questions in a fashion that I found evasive. Some of the things he said were frankly utterly unbelievable. His assertion that he did not know he might be in trouble as a result of breaching the Intervention Order by what he did at (omitted) is patently absurd. That he knew it was a breach of the order is apparent by his reaction thereafter. He made very numerous phone calls and text messages to the supervisor, Ms G, obviously in an endeavour to exculpate himself and visited no less than three police stations shortly thereafter. While he has said that this was because, in effect, of a fear that the mother would try to set him up and/or make false allegations about the matter, I am comfortably satisfied, having seen and heard him give his evidence, that he was well aware that he had breached the Intervention Order on that occasion and was seeking to self-exculpate.
I will return as to what is to be made of the (omitted) incident when I deal with the facts. As I have already indicated, the father, on one occasion, directly changed his evidence about whether he saw the mother holding the telephone during the (omitted) incident. His assertion that he had no idea the mother did not want to see him or not want to talk to him during the (omitted) incident, given in answers to questions from counsel for the Independent Children’s Lawyer is completely unbelievable. His assertion that X did not become anxious when she first saw him on a supervised basis is clearly contradicted by the supervisor’s report.
While he says he was harassed at work by the mother making false allegations, I roundly fail to accept this was the case. I have the benefit of having seen the father in the witness box over a reasonable period of time, quite sufficient to draw conclusions. His answer about whether he knew who Mr C was (whether this person is Mr C, Mr J or (omitted) remains unclear) given in the police interview is palpably untruthful.
The mother, I regret to say, was no way a better witness at all. I have already dealt with some unsatisfactory aspects of her evidence in passing. Her answers were an unfortunate mixture at times of self-serving denials, untruths (that she had told Ms S she only wanted supervised time until the final order), prevarication or otherwise unbelievable.
It should be noted that, in the mother’s case, as with that of the father, while their English is, of course, not bilingual or perhaps totally fluent, both have more than sufficient command of the language to express themselves clearly. Their endeavours to take refuge in the fact that English is their second language do not persuade me that the various unsatisfactory aspects of their evidence are explained away.
As with the father, the mother was in the witness box for an appreciable period of time. The mother is clearly given to hyperbole and exaggeration on occasions. She is also, however, a person whose emotions readily get the better of her and I regret to say that, as with the father, she was in the main an unconvincing witness.

Findings About The Facts

The 2011 family report with Mr N was disavowed by the mother. Nonetheless, I think it is more probable than otherwise that what she told Mr N was true despite these denials. It should be noted that, if I were to accept her as being wilfully dishonest to Mr N, this scarcely redounds to her credit as, if it were so, she was seeking to obtain a forensic advantage in that case against her former husband by being untruthful.
Mr N is an extremely experienced practitioner who commonly displays considerable insight. I think that he accurately recorded what the parties said to him.
It is noteworthy that, when pressed in cross-examination in this case, the mother sought to assert that the husband only really started to assault her in 2012. She put this as being connected to his obtaining citizenship. I note that A did not indicate to Ms S that Mr Edmonson had ever hit her. It seems more probable to me than otherwise that what A said was true.
Nonetheless, what is clear, as I find, is that the father was a controlling and domineering figure. Arguments, as X reported to Ms S, undoubtedly occurred between the parties from time to time, albeit probably conducted in (language omitted). I think the father did not exercise continuous physical abuse of the mother who did not, in truth, particularise in any detail any given assault. What he did do, of course, was to threaten the mother.
The father’s indication to Ms S that the mother left him for another man is, in my view, a telling one. He clearly thought that this was so and he pursued with X, in the presence of Ms C the question of the identity of who it was who attended the family report with the mother. I find as a fact that he made threats to kill the mother in the event that she left him and I find as a fact that he threatened to kill the children also.
Although as I find the father may well have threatened to use physical discipline to hit the children, I do not find that he has ever hit X. His evidence that he adores X and would never hit her was given with sincerity and, although the father undoubtedly has a temper, I do not think it will apply in such a fashion as to involve a risk of harm to X.
The most concerning incident, of course, is the (omitted) incident. Counsel for the father had to concede that, even on the father’s version of the events, he has breached the Intervention Order and he will doubtless be dealt with by the courts for that in due course. Whether a more serious finding is made remains to be seen.
No one has suggested, however, that this Court should not do the best it can to deal with this incident now, noting that there is a different standard of proof. Counsel for the mother did initially cavil with this proposition, but, in the end, as I pointed out, it was not appropriate to put the trial of this matter off for many months until the criminal proceeding is over. The Court has an obligation in the best interests of the child to try and resolve the matter now.
In the end, I think the matter, as counsel for the Independent Children’s Lawyer submitted, is somewhere in the middle between the parties’ versions of the events. The father undoubtedly pulled up in his car, saw the mother, and opportunistically walked towards her in breach of the Intervention Order, as I find he well knew, and said to her “(omitted)”. The mother made a gesture for him to go away and he did. I have no doubt he said more than what he admits. I find that he did make remarks to the effect that the mother was still his wife and the like. He made threats to her. Nonetheless, he did, at least, go away and got in his car. I do not accept that his seeing the wife twice was an accident. I think it was part of his ongoing controlling behaviour.
Whatever the father did, it deeply distressed X and the mother and the father’s denial that X was upset is one I do not accept.
What I cannot find, however, is that the father made the throat-slitting gesture that the mother describes. The accounts given to third parties do not suggest that X had seen anything of the sort, nor, indeed, did the mother raise this with Ms G when she attended contemporaneously. What is clear, however, is that both the mother and X were terribly upset by what occurred. Although it is perhaps not entirely possible to say exactly what the father did, it was more than he admits and produced a very severe effect upon both X and her mother.
Notwithstanding this, the time between X and her father up to then supervised by Ms G had generally gone very well. The relationship between X and her father was rapidly re-established with only a very brief initial hesitation on X’s part.
When time recommenced with Ms C after quite a gap, once again only very initial concern was expressed by X.
It is clear that the mother seeks to foment criticism by both her children of the father. I do not accept that the visit to FMC on 6 October 2015 was as innocent as she has sought to portray it. I think that the remarks made by X were coached by the mother on that occasion. It is clear that the mother also coached both A and X prior to the interviews with Ms S.
In the end, my conclusions about the central issue in the case can be expressed quite shortly. The father has behaved extremely badly to the mother during the currency of their relationship. His behaviour was controlling throughout and involved some measure of family violence within the extended meaning in the Family Law Act 1975 (Cth) (“the Act”) at least from 2012 onwards. One aspect of the entire history that the father’s case wholly fails to explain is why it was that the mother moved out to a refuge from what was otherwise a secure, and, on his case, happy home.
Notwithstanding his past misconduct, however, the father has been assessed by Dr P as posing no risk to X. The interaction between X and her father, both with Ms G and Ms C, has been unconcerning.
On the other hand, it is clear that the mother retains a genuine and ongoing fear of the father, albeit that her tendency to exaggeration and hyperbole probably causes her to overstate this. Furthermore, she significantly overstates the risks that she perceives with the father. She is not a person given to understatement or qualification. However genuine her fears of the father are, they are not, in my view, made out to anything like the degree she has expressed.
Against these findings, I come to the statutory pathway.
The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:
[65]   In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).
7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a)     the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii)     days that do not fall on weekends and holidays; and
(b)     the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)     occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

The child’s best interests remain the overriding consideration.

Shared Parental Responsibility

Little was said about this very important matter in the parties' submissions. The mother seeks an order for sole parental responsibility in her favour, but this, of course, is part and parcel of her application that the father spend no time whatever with X.
The report of Ms S essentially recommends that interim orders be made at the present time and a review take place in some six to eight months to assess the parents' compliance with the arrangements to be put in place and their appropriateness (paragraph 42 of the report.) Ms S, as earlier noted, was not required for cross‑examination.
Although it rather puts the cart before the horse, for reasons which I will expand upon in looking at the matters to be considered under s.60CC of the Act, it is clear that it is in X's best interests that interim orders only be made and that the issue of shared parental responsibility be revisited in about a year's time.
It should be noted that there is no question that X has been exposed to family violence by the father, and I accept that the presumption might be rebutted on that basis. However, in the light of the circumstances of this case as a whole, it is simply not appropriate to deal with this aspect of the matter to finality at this stage.

Section 60CC – The Primary Considerations

The family violence to which X has been exposed is concerning and is not to be put to one side. While everyone agrees (at least at first blush) that it is in X's best interests to have a meaningful relationship with her father, family violence is to be given greater emphasis (s.60CC(2A)). This matter will require careful attention when the matter returns before the court in due course.

Section 60CC(3) – The Additional Considerations

Section 60CC(3)(a)

Although X has from time to time been anxious when time has been commenced or recommenced, as the case may be, the overall picture that emerges from the materials could not be clearer. X has an excellent relationship with her father and likes seeing him, and, indeed, expressed on occasions discontent when her time comes to an end. She is, of course, young, but her views seem clear enough to me (see paragraph 29 of Ms S's report).
I note that X has suggested some reservations about being with her father alone, but I note these were also expressed very much in the context of her mother's fear of her being alone with her father. As I find, X's reservations about being with her father spring not from herself but from a keen appreciation of her mother's resistance.

Section 60CC(3)(b)

X has a warm, loving relationship with her mother, who has been her primary carer all her life. Although both of the parents must have looked after X when they were together, given the mother's work patterns, it is clear that the mother has always been the primary attachment. X's relationship with her father is warm, and continues to develop, as noted by Ms S.
Little has been said about X's relationship with Mr O, the mother’s partner, but there is nothing to suggest that there is anything other than a good relationship. Both X and A admit that they sometimes fight, but it seems, taking the material as a whole, that there is nothing more than ordinary sibling rivalry. X's relationship with extended families is questionable, particularly given that the father's family is in (country omitted).

Section 60CC(3)(c)

The mother obviously has effectively reared X largely on her own since separation (a period now of over a year). The father has been seeking to spend time with her effectively since separation, and although his capacity to do so has been impeded by the march of events, the fact is that he has made strenuous efforts, and continues to make strenuous efforts, to spend time with and communicate with and participate in making decisions about X.

Section 60CC(3)(ca)

There are issues in this case as to the extent to which the father has properly sought to support the mother financially. That is a matter of dispute between them, as so many matters are. The father has, of course, spent substantial amounts of money in seeking to see X (a relevant consideration under s.60CC(3)(c), but it is not possible to make any findings as to whether the father has properly contributed to X's financial support.

Section 60CC(3)(d)

Ms S has recommended an immediate introduction of supervised time, albeit on a staged basis. Ms S's opinion is that this will be in X's best interests, and X would likely be able to sustain the increase that Ms S recommends. The father will, of course, be pleased by any increase in his time, although (and this perhaps is a measure of his lack of insight) he seeks more substantial tranches of time more quickly.
The person who will undoubtedly be affected by the increase in time is the mother. Her fears of the father, however exaggerated they might be, are undoubtedly sincere. It may well be in her interest to receive counselling to assist her in this process, and I am going to order that the mother attend counselling with a person nominated by the Independent Children’s Lawyer to assist her with the gradual increase in time.

Section 60CC(3)(e)

There is no great practical difficulty and expense in X spending further time with her father, although the orders I propose to make will involve some expense for the mother in counselling. The fact that time will move to being unsupervised will, in fact, make more money available to the father to assist X while she is with him.

Section 60CC(3)(f)

There is no doubt that the mother has the capacity to care for X and to provide for her needs, both emotional and intellectual. Her capacity is, to an extent, compromised by her exaggerated fear of the father, although in saying this I should make it clear that I am not being critical of her in this regard. The father's conduct over time has been reprehensible and deplorable.
The father is, in some respects, as Ms S's report implicitly recognises, unassessed. Nonetheless it is clear that the father did look after both A and X for relatively substantial periods of time while the mother was working until separation took place. Dr P has no reservations about either the mother or the father's capacity to care for the child in the sense of them being a risk to X's safety. The evidence taken as a whole suggests that the father should be able adequately to care for X while she is with him.
Although nothing in my view turns on it, it would seem reasonably clear that to the extent that Mr O provides for X, he does so unexceptionably.

Section 60CC(3)(g)

I have had, regrettably, a number of things to say critical of both of X's parents. They both have their weaknesses. The father undoubtedly has a rigid and set view of the world, and his obsession with the mother's re-partnering is unhelpful and unattractive. Nonetheless, it is clear that he loves X, and wants to spend time with her, and should at least be able to sufficiently care for her when he does so.
The mother, as I have already said more than once, is given to florid exaggeration, and this speaks of certain immaturity in a sense. But nonetheless she is in a relatively longstanding and happy relationship with Mr O, and there is nothing to suggest that her lifestyle and background and culture and traditions are in any sense deleterious to X's best interests.

Section 60CC(3)(h)

This is not relevant.

Section 60CC(3)(i)

Although this is, of course, a very important matter, it has really effectively largely been dealt with. The mother is understandably very protective and, indeed, overprotective of X, and the father is, in my view, overly possessive in the sense that there is no doubt that he regards himself as entitled to see X simply because he is her father. Nonetheless both of them wish to parent X. The intensity of this proceeding reflects that desire.

Section 60CC(3)(j)

I have already dealt with the very important issue of family violence. I repeat again that the (omitted) incident, deeply frightening as it clearly was to both the mother and X, was somewhere in between the parties' exaggerated and, in my view, untruthful versions. There is no doubt that the father verbally abused the mother during the relationship. He, however, has never hit X, and it is extremely questionable that he ever hit A. It is very telling that A told Ms S that he had never hit her, and I find that that is the case.

Section 60CC(3)(k)

There has been an Intervention Order in place which the mother is seeking to extend. There are also criminal proceedings on foot. These are important, but in the circumstances, they do not take the matter further.

Section 60CC(3)(l)

It would be far better for everyone if the court could make final orders at this time. Given the mutual distrust of the parties, and their demonised perceptions of one another, it is all too possible that any further litigation will be stress filled and damaging, not only for them, but also for X. But, as Ms S, in my view, rightly says, the position is simply not sufficiently concluded for it to be possible to make final orders.

Section 60CC(3)(m)

There are no other matters that require to be considered under this heading.

Conclusion

In my opinion, the parties need to take a breath, so to speak, and need some quiet time without this litigation immediately before them. I think the matter should be adjourned for a year, and that the parties should await the implementation of the orders to be made. I have already directed counselling for the mother.
Handover should take place either at a contact centre or at school as appropriate. As the Independent Children’s Lawyer submits, there should be an order that the parties not discuss the proceedings with X. They have both obviously done so inappropriately in the past.
Given the difficulties the parties have had, I am prepared to contemplate making an order pursuant to section 65L of the Act to assist the parties, and I will hear further from the parties as to whether any other form of therapeutic intervention should be ordered to assist either of the parents to move forward in a more productive way consistently with X's best interests.

I certify that the preceding one hundred and forty-six (146) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 17 June 2016

[2016] FCCA 1377

17 June 2016

Key Legal Topics

Areas of Law

Civil Procedure

Family Law

Legal Concepts

Appeal

Costs

Jurisdiction

Procedural Fairness