Elm and Dennison

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELM & DENNISON

[2017] FCCA 2904

Catchwords:
FAMILY LAW – Parenting – best interests of child – orders made.

Legislation:

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

Applicant:

MR ELM

Respondent:

MS DENNISON

File Number:

PAC 2283 of 2014

Judgment of:

Judge Newbrun

Hearing dates:

1 and 2 May 2017

Date of Last Submission:

2 May 2017

Delivered at:

Parramatta

Delivered on:

24 November 2017

REPRESENTATION

Counsel for the Applicant:

Mr Gilbert

Solicitors for the Applicant:

Carter O’Neill Legal

Counsel for the Respondent:

Mr Fermanis

Solicitors for the Respondent

Rafton Family Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Maddox

Solicitors for the Independent Children’s Lawyer

Sarah Bevan Family Lawyers

ORDERS

The mother shall have sole parental responsibility for the child X born (omitted) 2010 (“X”).
X shall live with the mother.
X shall spend time with the father as agreed in writing (by email or text message) or otherwise as follows:
(a)each alternate weekend from 9am Saturday to 5pm Sunday, commencing 2 December 2017;
(b)On Father’s Day from 10am to 5pm;
(c)On the father’s birthday from 3pm to 7pm;
(d)On Christmas Eve from 10am to 7pm.
X’s time with the father shall be supervised by the paternal grandparents or either of them, upon each of the grandparents filing an appropriate undertaking and that the father provide to the grandparents a copy of these orders. X’s time with the father may also be supervised by another person agreed to by the parties (such agreement to be confirmed by email).
For the purpose of X spending time with the father, changeover shall occur as agreed in writing between the parties and failing agreement:
(a)On the father’s birthday, if a school day, by the paternal grandparents or either of them collecting X from school and returning her to the mother or her nominee at the McDonalds Restaurant at (omitted).
(b)On non-school days, by the paternal grandparents, or either of them, collecting X from the mother or her nominee at the (omitted) Service Station, corner of (omitted) and (omitted), (omitted) and returning X to the mother or her nominee at the McDonalds Restaurant at (omitted).
X is to have telephone communication with the father each Monday and Thursday between 7pm and 7.30pm or as otherwise agreed in writing, and for this purpose the father is to telephone the mother’s mobile and the mother is to ensure that X is available at those times.
Within 21 days of the date of these orders the father must:
(a)Enrol in an anger management course titled “Taking Responsibility” conducted by Relationships Australia or a similar course, and thereafter complete the course;
(b)Provide to the mother written evidence of his completion of the course promptly upon completion.
That the father continue to engage with his psychologist Ms M and attend all appointments with that psychologist, or other professionals to whom the psychologist refers or recommends, and comply with all reasonable requests of that psychologist or professional, with such engagement to address particularly the issues of the father’s anger management and depression, particularly in regard to his relationship with X.
The father is restrained from consuming alcohol or any illicit substances within 24 hours prior to and during his time with X.
Both parties must keep the other informed of their residential address and contact phone numbers and provide 30 days’ notice of any proposed relocation of either party the one to the other.
The mother must authorise and do all things, sign all documents and give all consents necessary to enable any school attended by X to provide to the father, at his expense, copies of school reports, school photographs, newsletters, information or documentation relevant to X’s education.
The mother is to promptly notify the father in writing (including email) of any long-term decisions regarding X’s education, activities or welfare.
Both parties must advise the other as soon as practicable of any significant illness or hospitalisation relating to X.
Both parties must not denigrate the other parent or members of the other parent’s family in the presence or hearing of X and neither parent shall permit any other person to so denigrate the other parent or members of the other parent’s family in the presence or hearing of X.

NOTATION:

A.It is noted that the father is not precluded from bringing an Application to vary Orders 3, 4 and/or 5 after he has completed the “Taking Responsibility” course, or similar course, after he has completed satisfactorily counselling with a psychologist, and has had, and is continuing with a relationship with Ms J for at least 12 months.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2283 of 2014

MR ELM

Applicant

And

MS DENNISON

Respondent

REASONS FOR JUDGMENT

Introduction

This was the final hearing of competing parenting proposals in relation to the child X born (omitted) 2010 (‘the child’).
The parties agreed that the child shall live with the mother.
The issues for determination ultimately related to, in particular, parental responsibility for the child, whether the child’s time with the father could be supervised by his present partner Ms J, if the paternal grandparents were not available to supervise the child’s time with the father, and whether the father should be required to complete an anger management course.
The mother also sought orders, inter alia, that the father be restrained from consuming alcohol or illicit drugs while the child was in his care, or 12 hours prior, and that he be restrained from approaching within 100 metres of the mother’s home, work or place of education.

Background

The mother was born on (omitted) 1974 and is currently 42 years of age.
The father was born on (omitted) 1975 and is currently 41 years of age.
The parties commenced a relationship in (omitted) 2005, and separated in (omitted) 2007. The parties’ maintained a casual relationship until 2009.
The child was born on (omitted) 2010 and is currently 7 years of age.
This matter has a significant history before the Court. The father commenced these proceedings on 19 May 2014, and the matter was first heard on 1 July 2014.
On this first return date, Judge Donald ordered on an interim basis that, inter alia, the child shall live with the mother, and spend time with the father as follows: in week one from Saturday 9am to Sunday 5pm, and in week two from Sunday 9am to Sunday 5pm. The orders also included restraints preventing the father permitting the child from being in the presence of Ms A, and restraining the father from consuming alcohol prior to and during the time the child is in his care.
The matter was before Judge Donald for directions on 13 November 2014, where it was adjourned with liberty to vacate the adjourned date if terms of settlement were filed.
On 17 February 2015, the matter was administratively adjourned to 21 April 2015. On this date, the matter was again adjourned, and liberty was granted to the parties to vacate the next date if terms of settlement were filed.
The matter was before the Court on 6 November 2015. An Independent Children’s Lawyer was appointed, and the matter was set down for a final hearing on 9 June 2016 for two days. The matter was again listed before the Court on 24 November 2015 and a family report was ordered.
The Family Report was released on 12 April 2016.
On 30 May 2016, the final hearing was vacated by consent, due to the father’s imprisonment, and the matter was listed for mention on 1 September 2016.
On 1 September 2016, the parties were directed to file certain material, and the changeover arrangements were altered by consent.
The matter was before the Court again for mention on 20 December 2016, and it was set down for final hearing on 1 May 2017 at 10am with the usual trial directions ordered.

Final hearing

The final hearing proceeded on 1 and 2 May 2017.
The Applicant father relied on the following documents at the final hearing:
a)Amended Initiating Application filed by the father on 20 April 2017;
b)Affidavit by the Applicant father filed on 19 May 2014;
c)Affidavit by the Applicant father filed on 24 August 2016;
d)Affidavit by the Applicant father filed on 20 April 2017; and
e)Affidavit by Ms E filed 20 April 2017.
f)Affidavit by Ms J filed in Court on 2 May 2017.
The Respondent mother relied on the following documents:
a)Amended Response dated 30 March 2017; and
b)Affidavit of Ms Dennison sworn 30 March 2017.
The following documents were tendered and became Exhibits in the proceedings:
a)Exhibit A: Father’s case outline.
b)Exhibit B: Independent Children’s Lawyer’s case outline.
c)Exhibit C: Mother’s case outline.
d)Exhibit D: Family Report of Mr N dated 3 April 2016.
e)Exhibit E: Minute of Orders sought by the Independent Children’s Lawyer.
f)Exhibit F: Undertaking made by the father.
g)Exhibit G: Sleeve Four, Medicare Australia, Mental Health Plan preparation.
h)Exhibit H: Letter regarding Mr Elm’s treatment.
i)Exhibit I: Sleeve Eight, Father’s police record.
j)Exhibit J: Sleeve Nine, NSW Police Force, tabbed documents.
k)Exhibit K: Father’s Proposed Minute of Order

Evidence

The father was previously in a relationship with Ms A from about 2010 to about 2014. The father and Ms A had a child named A. Final orders were made allocating sole responsibility of A to Ms A and no contact with the father. Ms A also has two children from a previous partner.
Ms A first contacted the mother in 2014 to relay her concerns about family violence that the child was exposed to when Ms A and the father were in a relationship.
The father also has a son from a previous relationship with a woman named Ms L. This son is over the age of 18 years and does not spend time with the father. There are also family law proceedings in relation to this son.
Following the father’s separation from Ms A, the father began seeing Ms E. The father is no longer in a relationship with Ms E. The father’s new girlfriend is Ms J.
The mother and the father only lived together for about six months. The mother asked the father to move out around June 2006 due to his aggressive behaviour.
The child has always lived with the mother in the suburb of (omitted). The mother has always been the child’s primary carer.
The child spent time with father for about 2 to 3 days per week. This lasted from about October 2011 and ended in about March 2014. Prior to this period, the father would spend time with the child on a random basis.
The father did not help the mother or show any ongoing interest in major decisions about the child’s welfare, such as visits with doctors and hospital attendances.
The father’s financial contributions towards the maintenance of the child were intermittent and inconsistent up until 2016. In 2016, the father stopped making payments, until about early April 2017 when the mother received payment for $30.
The father’s behaviour towards the mother has consistently been marked by threats, intimidation and controlling behaviour.
After the child was born, the father would come over to the mother’s home a few times a week with no invitation. Whenever the mother told the father that he was not welcome at her home, the father would make remarks to the mother such as, “If I can’t see X, then I will drive out of the state with her.”
The mother has never felt that the father and herself were able to easily communicate. Both during the parties’ relationship and after, the mother has been fearful of confrontations with the father.
On several occasions, the father has made threats of harm and abuse to the mother. For example, in about December 2010, the parties had an argument about the child having the mother’s surname. The father threw the mother hard to the floor whilst the child was close by screaming in her bouncer. The mother tried to contact the police but the father grabbed the phone from her and smashed it.
On Christmas Day in 2010, the father came to the mother’s home without invitation. The next morning the father told the mother that the child was spending the day with himself and his parents. When the mother stated that she already had plans for the day, the father started yelling at her and became verbally abusive and threatening, and it was then that the mother called the police. The father was removed from the mother’s home and an interim ADVO was made.
In relation to Local Court proceedings in relation to the interim ADVO, the mother agreed to withdraw the ADVO if the father signed an undertaking with the same terms as the interim ADVO. The undertaking was regularly breached by the father.
Exhibit F is a copy of an agreement between the parties made 27 June 2011, providing, inter alia, that the father agrees that he must not assault, molest, harass, threaten or otherwise interfere with the mother; the father must not engage in any other conduct that intimidates the mother; the father must not stalk the mother; the father must not approach the mother at her place of residence or work within 12 hours of consuming intoxicating liquor or illicit drugs; and the agreement was stated to be in force for two years from 27 June 2011 to 27 June 2013. The document is signed by both parties.
On another occasion in about July 2012, after handing the child over to the father and coming back inside her home, the mother heard some loud screaming. She looked out the window and saw the father yelling at his girlfriend Ms A, who was holding her daughter close by. The father’s yelling was so loud and frightening to the mother that she collected her keys to go out to the front of the house and refused to let the child go with the father, but by the time she got outside, they had gone.
The mother sent the father an email on 2 May 2014 stating, inter alia, that the child will no longer be going on her regular visits with the father. In the email, the mother stated, inter alia, that the child had told her of fighting in the father’s house which was so loud that the child had had to cover her ears with her hands. The mother asserted to the father in this email that this kind of behaviour had detrimental effects on the psychological development of children. The mother stated to the father that if he wanted to continue to have visits with the child, he would have to seek his own legal advice. The mother stated that at present she was no longer willing to send the child without a Court Order stating that she had to do so.
Following this email, the father telephoned the mother stating that he no longer resided with Ms A at (omitted), and that the child was spending time with him at the paternal grandparent’s residence.
The father admits to having had heated arguments with Ms A when they were in their relationship. He admits that on one occasion the child was in his care in late 2013 when he and Ms A got into a heated argument.
As at 13 May 2014, the father was living with the paternal grandparents at their residence at (omitted). At that time the father was working full-time for a (employer omitted) doing (occupation omitted).
At the end of June 2014, Ms A contacted the mother and told her, inter alia, that the father had assaulted her many times in front of the child and that he was often drunk. Ms A sent an email to the mother on 28 September 2014 stating, inter alia, that she was thinking about getting another ADVO out on the father.
In February 2015, the mother received certain text messages and phone calls from the father. One text message from the father stated, inter alia, that he was sorry if he ever hurt or caused the mother stress. He stated that the mother was a great mother and that she had done a great job of raising the child. The father stated he was sorry for not being a better person. He asked the mother to tell the child that he loved her very much. The father asked the mother not to tell the child the father’s bad points. The next day the father called the mother and told her that he was giving up drinking and was going to see a psychologist and that he would not be seeing the child that week as planned.
The father agrees that he sent these emails and text messages in February 2015. He states that at this time he was extremely depressed. He states, inter alia, that he had been in a violent and emotionally abusive relationship with Ms A. The father states that he was having an emotional breakdown at the time. He states that he had retaliated to Ms A’s boyfriend.
The following week the father contacted the mother to organise a time to see the child. A few days later the father sent a message by text to the mother that he had “lost the plot” and could not have the child.
The mother began to have concerns that the father was having a mental breakdown and was considering suicide. The mother received an email from Ms A on 10 March 2015 stating, inter alia, that the father had sent Ms A a text message stating that the paternal grandmother had found him and called an ambulance and the police. He had stated to Ms A that he was admitted to a psychiatric ward but had escaped and that he had nearly died.
In March 2015 the mother received numerous calls from the father in one day stating that he was cancelling the visit with the child because he was not coping. He would later call the mother back and state that he was coming to the visit.
Throughout February and March 2015 the father began to display threatening and intimidating behaviour towards the mother by coming to her home and questioning and harassing her in front of the child. When the child returned from visits at the father’s home the child told the mother that the father was yelling a lot.
The mother received an email from Ms A on 22 March 2015 indicating that the father had begun harassing her and her partner again.
On the last weekend of May 2015, the mother received a telephone call from Ms A who was crying and in a very distressed state. She told the mother that the father had taken off with the child A during a supervised visit with her and was in breach of an ADVO taken out against him by Ms A.
On 25 July 2015 the father called the mother in the morning telling her that he had had a car accident and had gone to hospital, and that he would not be able to spend time with the child as planned.
In about October 2015 the maternal grandfather called the mother and told her that the father had contacted him. The father had admitted that he had been drunk driving and popping pills the night he rolled his car. This car accident was a reference to an accident in July 2015.
In about January 2016, after serving a short jail sentence, and being released on parole, the father contacted the mother to organise contact with the child, telling the mother that his parole conditions provided that he had to stay with his partner, Ms E, at her house in (omitted), and therefore he would have to spend time with the child there instead of at the paternal grandparent’s house. The mother did not agree to that change. Later, the mother ascertained that the paternal grandmother had driven the child to (omitted) and had left straight after. The child had spent the night at the house in (omitted).
The father also had confrontations with the maternal grandparents on a few occasions. An incident in June 2016 occurred when the father verbally abused the maternal grandfather over the telephone.
The father frequently contacted the mother in relation to the Court proceedings. He made statements to the mother such as, “You better sign what I want or I will see you in court.” The father also sent the mother abusive emails and text messages where he would belittle the mother’s lawyer to intimidate the mother and manipulate her into allowing the father to have unsupervised time with the child.

On a number of occasions the father had called the mother and his speech had been slurred and it was hard to understand him and the mother formed the view that the father was drunk.
There was a period for about three months from about March 2012 to June 2012 where the child would hide behind the mother when the father came to pick up.
In July 2014 the mother picked up the child after her first visit with the father and four months and she noticed that the child was sulking. The child told the mother that the father was a naughty person.
Throughout 2014 and into 2015, the child constantly told the mother that she did not want to do sleepovers with the father. She told the mother that she gets scared, she did not miss the father, she only missed good people, and that the father screamed at her and had hit her. The child would also become very distressed, starting the night before she would be due to spend time with the father, and would cry when she was going to bed.
The child’s fearful attitude towards the father did not change throughout this period and intensified throughout the father’s three separate jail sentences in 2016.
On a few occasions when the mother has gone to pick up the child from the paternal grandparents home, she has sometimes smelt alcohol on the father.
In December 2015 Ms A contacted the mother to inform her that the father had been sentenced to jail for stalking behaviour and breach of AVO.
In about February 2014 the mother became concerned about the child’s behaviour so she took her to therapy at (omitted). The child attended three sessions. The child has begun to have night terrors since contact with the father recommenced following his most recent jail sentence towards the end of 2016. The mother is considering taking the child to see a psychologist to help her with her night terrors, and to get advice on how to best deal with the distress she feels leading up to contact with the father.
The mother is concerned that the child will continue to be exposed to and subject to abuse, violence and conflict, based upon the father’s pattern of behaviour when it comes to his relationships with his former partners and children.
In about October 2014, the father contacted the mother to let her know that he only wanted to spend time with the child every second weekend from Sunday 9AM to 5PM.
The child only spent time with the father on about 10 separate occasions in 2016 due to the father’s three jail sentences.
Presently, the child is seeing the father every fortnight. On these occasions, either the paternal grandmother or grandfather will pick up the child directly from the mother’s house. The mother picks up the child directly from the paternal grandparent’s home.
The mother does not feel comfortable with the paternal grandparents coming to her home to facilitate changeover, nor does she feel comfortable collecting the child directly from their home. The mother would like to avoid as much as possible coming into contact with the father to avoid altercations and confrontations.
The child recently told the mother that the father has a new girlfriend.
The child is in year 1 at (omitted) public school.
The mother currently works on a casual basis as a (occupation omitted) at a (employer omitted). On average she works about 15 to 20 hours a week. The mother completed her (qualifications omitted) in 2016.
As at 24 August 2016, the father was living on the (omitted) at (omitted).
The father, in his last filed affidavit, states that he went through an extremely difficult period from 2013 until 2016. He was in an emotionally and physically abusive relationship with Ms A, and he asserts that Ms A had been violent towards the child. The father states that he has sought counselling, and he is now getting counselling at (omitted) Psychology, to help him deal with emotional stress and anger issues.
In the affidavit of the paternal grandmother filed 20 April 2017, inter alia, she states that the child became quite fearful of Ms A. She states that the father’s relationship with Ms A completely broke down, and Ms A moved away and made it impossible for the father to spend time with the child A. She states that subsequently, the father became very depressed and suffered a breakdown because of the grief at losing contact with the child A. She states that the father has sought counselling to deal with his feelings of grief and depression.
In the affidavit of Ms J, filed 2 May 2017, she states that she is currently 45 years of age. She turns 46 years of age on (omitted).
She states she is in a personal relationship with the father. She first met the father in (omitted) 2017, after having met online. She lives at (omitted). She states that she has seen the father that with the child, and in her view they interact well together and her observations the child appears to be happy in the father’s company.
She states that she is willing to supervise the time that the father spends with the child, if the Court requires the father’s time with the child to be supervised and finds that she is a suitable person to fulfil that role. She states that she has no, record, she doesn’t really drink alcohol, she doesn’t smoke or take drugs, she works full-time with the (employer omitted), and she has had a lot of experience with children including her nieces and nephews. She has had the role of supervisor explained to her by the father’s lawyers and she understands the responsibility of the role that carries.
She states that it is her intention to live with the father and that they are currently considering relocating to the (omitted) of New South Wales in June 2017.
The father was cross-examined.
The father confirmed that his relationship with Ms E ended in about Christmas 2016. The relationship had lasted about 18 months.
The father referred to his past two “bad relationships”.
The father referred to his present girlfriend Ms J as being completely different to other women; she doesn’t smoke, swear, and has not been through “emotional stuff”.
The father stated that he is not presently in paid employment. He stated that he was receiving Centrelink benefits of $650 per fortnight. He is paying off certain debt. He pays $200 per week board to the paternal grandparents.
The father stated his preference was to reside at (omitted).
The father confirmed that there was an ADVO in relation to Ms E. The ADVO was defended. The father maintained that it was easier for him to agree to the ADVO without admissions. The father agreed that he had been charged with breach of that ADVO, with the alleged breach being 2 October 2016. He had been jailed from 3 October 2016 to 2 December 2016.
The father was cross-examined in relation to the father’s proposal for equal shared parental responsibility for the child. The father stated that he was happy to allow the mother to make decisions regarding the child’s after school activities.
The father confirmed that there had not been telephone communications with the mother for a significant period. Any communications were by way of email.
The father agreed that in about March 2016, the police applied for an ADVO on behalf of Ms A against the father. The father stated that there was an ADVO in place but he did not know when it expired. Since the father found out about the ADVO, he had taken no steps to vary or discharge the order.
When cross-examined by the Independent Children’s Lawyer, the father conceded the child had been exposed to an incident with Ms A.
The father was questioned about the reason that he sees the psychologist Ms M. He stated that the sessions with the psychologist address his ability to cope with things so that he does not get angry and flustered. The father stated that he makes silly decisions when he gets anxious.
The father was cross-examined in relation to a police incident report relating to an incident on a train. The father conceded he had argued with the police and had wanted to get back on the train. He received an infringement notice and was ejected from the train.
The father agreed that he was presently disqualified from driving.
The father was cross-examined in relation to a police incident report of 3 August 2016. The father agreed that he had been slurring his words at about the time of the incident. He stated that he been given a 9 months driving disqualification.
The father was questioned in relation to a driving incident in March 2015 at (omitted). The father agreed that he had slapped the other driver on the neck.
The father stated that the paternal grandparents were happy to supervise his time with the child. Nevertheless, he stated that he believed it was unfair for himself and his present partner to have to travel to the paternal grandparent’s home at (omitted).
The father conceded that if the Court was to order the father’s present girlfriend, Ms J, as the supervisor of his time with the child, and then the father broke up with this Ms J, that that would result in the child not being able to spend time with the father.
When questioned about the issue of parental responsibility, the father conceded there was the potential for argument between the parties relating to major long-term decision-making for the child.
The father was cross-examined by the ICL in relation to the police’s record of an incident on 8 April 2016 relating to an alleged argument with his former partner Ms E. The father did not have a sound recollection of the content of the police record. He did not recall getting into an argument with Ms E. He did not recall Ms E picking him up from a dental appointment. He did not recall Ms E and himself starting to drink alcohol on arriving home. He conceded there had been an argument with Ms E, involving violence, but, according to the father, committed by Ms E. He contended that Ms E had been drunk and had withdrawn allegations made against the father to the police. The father conceded that his relationship with Ms E was toxic. When questioned about paragraph 9 of his affidavit filed 20 April 2017, he stated that he has not stayed at Ms E’s residence at (omitted) for a while.
Ms J was cross-examined.
She stated that the father had not told her that any person had an ADVO against him. She was not aware of any restriction preventing the father from seeing other persons. She was not aware of an ADVO preventing the father from assaulting or harassing his former partner Ms E and expiring in early June 2017. She was unaware of an AVO preventing the father from contacting Ms A. She was unaware of any conditions attaching to an AVO against the father.
Ms J stated that she had seen the father consume alcohol. The last time being last night. It was beer. The father had consumed quite a few beers; 6 beers during the evening over a few hours.
Ms J did not know the reason why the father did not have a driver’s licence.
Ms J stated that she did not understand why there would be a need for supervision of the child’s time with the father, as she was of the view that the father was a fit father, and the child doted on him.
Ms J agreed that the father was powerfully built and had a loud voice.
Ms J stated that the father had not shown her the affidavits from his former partners or of himself. The father had not told her that he was having counselling in respect to anger management issues.
Ms J stated that if the child was spending time with the father and the father lost his temper and was not calming down, she would pick up the child and take the child to her mother’s residence.
The paternal grandmother was cross-examined.
She stated that in the future, subject to her availability, she was prepared to supervise the child’s time with the father.
She stated that from December 2015 to about October 2016, the father was living partly with the paternal grandparents and partly with his former partner Ms E.
She conceded that she had not told the mother that the father was jailed from 26 May 2016 to 8 June 2016. She stated that part of the reason was because she thought the mother might use this information to prevent the child spending time with the father.
She stated that her level and quality of communication with the mother was cordial. She stated that she thinks highly of the mother as a mother of the child. She stated that she was a child of a single parent and she knows how difficult it is.
As to the father’s relationship with the paternal grandfather, she stated that the paternal grandfather had been very hard on the father. He had had high expectations of the father. He stated that there had been times when there had been conflict between the father and the paternal grandfather but not when the child had been present.
The paternal grandmother stated that in the last few years the paternal grandparents had travelled. They were planning to go to (country omitted) from (omitted) 2017 to (omitted) 2017. In 2016 they travelled for 10 weeks. In the previous year for 4 weeks. She stated that they travel to (omitted) several times each year. She also stated that they have a disabled son living in (omitted).
The paternal grandmother stated that she could pick up the child from (omitted) if the child’s time with the father was to be supervised by her.
The mother was cross-examined.
The mother confirmed that she never gave permission for the father to spend time with the child other than in the presence of the paternal grandparents.
The mother was questioned as to prospectively the child spending time with the father on the (omitted). The mother stated that she would like to see evidence that the child was not exposed to violence.
The mother clarified that the child’s night terrors were more like nightmares.
The mother stated that she had taken the child to therapy in about February 2014 because the child was stating to the mother that the father was “yucky”. The mother stated that she wanted to take the child to therapy to find out what was happening in the father’s home. She stated that by the time she got into counselling for the child, she stopped the child spending time with the father because the child had told her that she had seen the father choke his partner.
The mother confirmed that for some years the child has told her that she does not want to do sleepovers with the father.
The ICL cross-examined the mother.
The ICL drew the mother’s attention to the family report writer’s observations of the child with the father. The mother agreed that based on those observations of the family report writer, the child appeared to have a strong and loving relationship with the father. Nevertheless, the mother stated that the child worries that she will not anger the father and she tells this to the mother. She is different every week in this respect.
The mother confirmed that she is content for the child to spend time with the father provided it is safe and positive.
The mother stated that the child knows that she does not talk with the father. She responded, when asked about the child possibly stating things to the mother that she expected the mother wanted to hear from the child, that she did not think that the child would care about her opinion and that the child had a strong character.
The mother expressed her concern for the child if the father’s relationship with Ms J turned abusive. The mother expressed her concern, given the history of the father with herself, Ms A and Ms E, that there would be abuse in the father’s relationship with Ms J.
The ICL cross-examined the mother in relation to, inter alia, her request for supervision of the child’s time with the father until she is satisfied that the father had attained a “stable pattern of behaviour” (paragraph 8 of the family report). The mother stated that, in relation to a “stable pattern of behaviour” in the father, she would want to see no involvement with the police; no AVO’s, and a report from a counsellor in relation to the father’s anger management issue (anger management being the biggest problem with the child’s potential exposure to that anger).
The mother stated that communication was impossible with the father. She stated that it might be possible to have a discussion with the father about long-term decisions for the child through email communication, however emails often turned into long rants. (In re-examination, the mother stated that from her past experience with the father, she did not believe that she could reach agreement with the father because she usually got abused or sworn at by the father.)
The ICL cross examined the mother as to whether she saw anything good in the father having a relationship with the child. The mother stated that might possibly occur in the future, by reference to prospective treatment that the father might undertake.
Hypothetically, the mother was asked to consider her position if the father was to provide a report or certificate from a psychologist discussing the father’s improvement. She stated that she would want see the actual improvement in the father’s behaviour.
The mother stated that, in terms of improving her relationship with the father, her response would be to not interact with the father as much and to keep it simple.

Family Consultant

The family report writer was Mr N, and his Family Report is dated 3 April 2016. He interviewed the parties, the father’s former partner Ms E, and the child on 7 March 2016.
The family report writer noted that the paternal grandparents are referred to in past Court Orders. He states that the father, currently unlicensed, relies on his present partner to drive him to Sydney for the weekends with the child. He noted that the father now spends time with the child each fortnight from 9 AM Saturday’s until 5 PM Sundays.
The family report writer noted that the father’s proposal was that the child continue the current alternate weekend time with him, unsupervised at (omitted). He noted the mother’s proposal that the present arrangements remain supervised at the home of the paternal grandparents, until she is satisfied that the father has attained a “stable pattern of behaviour.” He noted that the mother wanted the supervision requirement maintained until there are no ADVOs against the father’s name.
The family report writer noted that for the mother, the father’s alleged impulse control problem posed a threat to the child, by way of the child being drawn into any potential conflicts with his partners. The mother also asserted that the father has an alcohol problem. He noted that, for the father, the mother was unreasonable and not fully supportive of his relationship with the child, although he thinks she is better than before.
The family report writer interviewed the mother. The mother asserted that she had left the father after six months due to his controlling nature. She referred to an argument over the child’s name which led to the father assaulting her and smashing a telephone. The mother asserted that after separation, the father continued to send her threatening emails and an ADVO was brought naming her as the protected person.
The mother asserted to the family report writer that the father possessed a volatile temper for a long time. She alleged the father had alcohol consumption problems and raised the father’s mental health, with the mother considering the father emotionally unstable, especially in relationships with women.
The family report writer noted that the mother was not opposed to the child spending time with the father at the paternal grandparent’s home. She considered that the child had adapted to the home of the paternal grandparents.
The mother expressed to the family report writer her main concern involved what the mother considered to be the father’s personal volatility and aggression in relationships with women. The mother reiterated to the family report writer that she was worried about the child being exposed to domestic violence at the father’s house.
The mother told the family report writer that she is willing for the child to continue the relationship with the father, but demanded that he seek professional help regarding his anger management issue. The mother appeared most reluctant to agree to unsupervised time whilst there remained a current ADVO.

The family report writer interviewed the father. He denied being physically violent towards the mother during the relationship, although admitted frequent verbal altercations, and he tended to view the mother as equally responsible for the conflict.
When the family report writer asked the father about his other two relationships, the father reported conflicts with both mothers of his other children.
The father told the family report writer, regarding Ms A, that their relationship had been nasty.
The father had agreed with the family report writer that he had been an angry person when much younger, mentioning committing several common assault and driving offences in the past.
The father told the family report writer of the more recent driving offence in July 2015, when the father failed to provide a sample after a traffic accident. The father stated that he had not been drinking, but was on antidepressants and anxiety medication for stress, and he was worried that these drugs would show up in his system. The father was charged and disqualified from driving for three years.
When asked about his mental health, the father reported having stopped all medications except for Seroquel, which he occasionally takes for sleeping. The father told the family report writer that he felt suicidal in 2015, when Ms A suspended his contact with the child A, and attended a psychologist at (omitted), which stopped when he moved locations.
The father told the family report writer that although he feels more stable now, he intends seeking further counselling to deal with ongoing stress associated with the Court matters. Of particular stress appeared to be the requirement of coming to Sydney to see the child and having to get his present partner Ms E to drive him.
The family report writer stated that overall the father’s discussion of parenting seemed appropriate though general.
The father wanted the child to spend the weekend time with him and his present partner Ms E at their place, all changeovers occurring at (omitted).
The father’s present partner Ms E was interviewed by the family report writer. Inter alia, she stated that she had not witnessed the father being angry, “and felt any frustration normal given his situation.”
She confirmed that as the father is unlicensed, all the driving falls to her. The family report writer stated that one was left with the distinct impression that she considered the ongoing driving situation intrusive, particular having to spend Saturday nights with the paternal grandparents.
The child was observed by the family report writer with the father. The child readily greeted the father and offered spontaneous kisses and hugs. At times there was loud laughter between them and the girl displayed trust, maintaining firm eye contact in close physical proximity to the father.
The family report writer provided an evaluation.
The family report writer noted that during the formal observation period, the child displayed acceptance and security in the father’s presence.
The family report writer stated that whilst the father appeared to have experienced substantial impulse control issues with former partners, there seemed no evidence of his acting inappropriately towards children, apart from the issue of them being exposed to the domestic conflict.
The family report writer stated that lingering concern over the anger management issue would appear more justified, on account of the alleged events with Ms A. He stated that although the father attended psychological counselling in 2015, re-attendance could be beneficial, especially in helping to alleviate reported stress over the present Court matters.
Under the heading Recommendations, the family report writer recommended that the father re-engage with psychological counselling with a therapist in his area, specifically to address the anger management issue. On successful completion (usually 10 sessions under the Medicare plan), it was envisaged that the supervision requirement could be discontinued.
The family report writer stated that in the meantime, it was recommended that consideration be given to the father’s present partner, Ms E, taking over the supervision role from the paternal grandparents, thus permitting the child to spend time with the father at his home. It was suggested that the changeover venue be re-examined, bringing it closer to a halfway point, such as (omitted). It also seemed advantageous for the mother to meet Ms E so as to gain confidence in her and lessen the mother’s felt insecurity regarding the child’s time with the father. It was further recommended that some holiday periods be phased in gradually building to half school holidays from the start of next year. Ongoing equal shared responsibility appeared in the child’s future best interests.

Oral evidence of family report writer

The family report writer confirmed having read updating affidavits since the preparation of his family report.
The family report writer was cross examined by the ICL.
The family report writer stated that he was now aware that the father had broken up with Ms E in 2016. He was aware that there was an AVO protecting Ms E. He stated that he was aware of an AVO protecting Ms A from the father. He was now aware of the father’s three short jail terms.
The ICL asked the family report writer to comment on the father’s relationship with Ms J in light of the father’s previous cessation of relationships with Ms A and Ms E. The family report writer stated that given the pattern of the father’s past relationships, he would really need to see a much longer period of stability in the present relationship of the father with Ms J to have any confidence about the prospect of it being a long term arrangement, noting that that relationship was only of some three months duration presently. He stated that three months was too short to state that the relationship was likely to be permanent in light of the father’s history; “we would need to see at least 18 months (in that relationship)”.
The family report writer’s attention was drawn to Exhibit H, the letter from the father psychologist dated 2 May 2017 stating that the father had attended counselling in April 2017 for two sessions. The family report writer stated that:
So my recommendation particularly has in mind that an anger management impulse control program occur over an extended period of time where the father actually takes responsibility and looks at his pattern of anger management and aims to – to ameliorate that with – with psychological therapy. So that was the – the crux of my recommendation.
As to anger management treatment for the father, the family report writer stated, inter alia:
The importance of anger management is to allow the person to make connections between his past behaviour and thinking and to assist the person with strategies when he feel anxious or – or under pressure with strategies which actually won’t be based on impulse – on sudden impulse. You’re – you’re teaching the person relaxation. You’re teaching the person to – to consider and to apply other strategies which are more reasonable for – for him and for other people. So it tends to be a psychological therapy. It tends to be cognitively based.
…the other program for people with anger management which is actually quite a good one is run by Relationship Australia and it’s called Taking Responsibility and that incorporates anger management with past family violence. So, quite often, you see people referred to those programmes from – that are run by that organisation and they – they’re in a group setting and they require a commitment of a number of months. They’re quite extensive, but they – they’re researched to be quite productive programmes.
The family report writer stated that the above programmes are conducted in Sydney, and Parramatta. He believed that one would be able to access such a programme in (omitted). He stated that other organisations such as Unifam and Catholic Care were likely to run similar programmes in some areas for domestic violence and anger management issues. He stated that the Taking Responsibility course is over 12 or 18 sessions, over a number of months.
The family report writer stated that with the further evidence put to him today, and noting past events, one could not assume that his past recommendations remain today.
The family report writer was questioned by the ICL as to whether the prospective supervision of the child’s time with the father should last for 12 to 18 months. The family report writer stated that he would say at least a further 12 months is probably necessary to allow the father to do an anger management program, and to allow time in his relationship with Ms J to blossom.
The family report writer stated that as far as the child was concerned, she needs an environment of stability when spending time with the father. He stated that the child had a secure attachment to the father and the child needed not to be exposed to any altercation that the father may be involved in when she is with him. The family report writer emphasised, as far as he was concerned, that the longevity of the father’s relationship with his new partner was important for him to be comfortable in relation to the child spending time with the father.
As to the child spending time with the father during school holiday periods, the family report writer stated that holiday time would commence after the supervision requirement was lifted, and then only introduced by way of a layered approach.
The family report writer stated that the father had told him that he had taken the child to (omitted). The father had told the family report writer that he would do it again. The family report writer told the father that there was a Court Order (the Court Order of 1 July 2014) that needed to be complied with.
The family report writer stated that the paternal grandparents were appropriate persons to supervise the child’s time with the father. They had had prior involvement with the child. The mother trusted them to supervise. The child was happy and secure going to their home. The family report writer stated that supervision should take place at the home of the paternal grandparents, and the child’s time with the father should be supervised by them; their home was in a known secure and stable environment. He had no problem with overnight time supervised by the paternal grandparents at their home.
The family report writer stated that he was now more inclined to not recommend equal shared parental responsibility. There were a number of potential obstacles to equal shared parental responsibility “given the evidence that has been put to me today”.
The family report writer stated that as he had not met Ms J, he could not comment meaningfully as to her suitability as a prospective supervisor of the child’s time of the father.
The family report writer stated, from what he had heard, that the father did have an anger issue, and had an impulse control problem which needed treatment over a period of time.
The family report writer stated that when the child was spending time with the father, the father should not consume alcohol prior to and during such time.
The family report writer acknowledged that should the paternal grandparents travel on holidays, there was a risk that the child’s time with the father might not occur for at least several weeks. The family report writer stated that one had to balance continuity in the child’s relationship with the father against the possibility of any untoward action happening if she was being supervised by the father.
The family report writer stated that the pattern of instability in the father’s relationships hitherto was the critical issue.
The Court accepts the evidence of the family report writer, including his revised recommendations as stated by him to the Court in his oral evidence.

Exhibits

The father has an extensive criminal history, and has been arrested on multiple occasions for breaching ADVOs, and was jailed on three separate occasions, for short periods, in late 2015 and during 2016. He also has convictions for, inter alia, common assault in June 2015; July 2015 prevent blood sample – $1,000 fine and disqualified three years; January 2016 use carriage service to menace/harass/offend – section 20 bond; August 2016 at (omitted), prescribed concentration of alcohol – $1,000 fine, 9 months interlock program, drive whilst disqualified, second offence – $1,500 fine and statutory disqualification. The precise details are set out in Exhibit I.

Relevant legal principles

Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
To determine what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3) of section 60CC. Firstly, the Court must consider the primary considerations, being:
(2)(a) The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(2)(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 applying these considerations, as per section 60CC(2A), greater weight must be given to the ‘need to protect’ the child over the benefit to the child of a meaningful relationship with the parents.
When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a) - the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration.

The child has a meaningful relationship with the mother and would benefit from a continuance of that relationship.
The child has a meaningful relationship with the father and would benefit from a continuance of that relationship subject to the child not being exposed to an unacceptable risk of physical or psychological harm when spending time with the father.
Should the child spend time with the father each alternate weekend from 9 AM Saturday to 5 PM Sunday, together with daytime time on Father’s Day, the father’s birthday, and on Christmas Eve, supervised by the paternal grandparents, or either of them, the child’s meaningful relationship with the father should be able to be maintained. In these the child’s meaningful relationship with the mother should not be detrimentally affected.

Subsection (2b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The Court is of the view that there is a need to protect the child from physical or psychological harm from being subjected to, or exposed to, family violence if spending unsupervised time with the father. The child can be appropriately protected from such harm by her time with the father being supervised by the paternal grandparents, or either of them. (The Court has not overlooked in this context that the paternal grandparents may themselves travel on holidays for some weeks resulting in the child not having supervised time with the father, in the absence of agreement between the parties as to another suitable person supervising the child’s time with the father.)
The Court refers to the father’s pattern of instability in his past relationships with women, including the occurrence of family violence during his relationship with the mother, the occurrence of domestic violence during his relationships with other women, and the occurrence of violence perpetrated by one of the father’s former partners towards the child.
The Court refers to the father’s past breaches of AVOs and his incarceration for short periods in 2015 and 2016 in relation to such breaches. It refers to the subpoenaed material in evidence.
There is a significant risk that if the child was to spend unsupervised time with the father, that she would be exposed to domestic violence. There is a significant risk that the child will be exposed to the father’s angry outbursts against other persons.
The Court has significant concerns as to the child spending time with the father during the daytime supervised by his new partner Ms J. This is by reason of the father’s past instability in his relationships with women, including instances of violence between the father and his former partners, and noting the relative infancy of the father’s relationship with Ms J. The evidence of the family report writer is consistent with these concerns.
The Court gives significant weight to this need to protect primary consideration.

Section 60CC(3) - Additional Considerations

(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

The child is too young to express a relevant view.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

The Court refers to the meaningful relationship primary consideration above. The child appears to have a positive relationship with the paternal grandparents.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

The mother has taken such opportunities. The father did not participate in making decisions about major long-term issues in relation to the child. The father has been inconsistent in taking up opportunities to spend time with the child.

(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 fulfilled such obligations. Since 2015 the father’s contributions towards the child’s maintenance has been sporadic, due to his lack of employment, time in jail, and his payment of debts.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

The Court refers to its discussion above under the meaningful relationship primary consideration.

(e) The practical difficulty and expense of a child spending time with and communicating with the 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

The father usually resides with the paternal grandparents at (omitted). He wishes to reside in (omitted), being a significant distance from the mother’s residence and that of the paternal grandparents. The Court refers to its discussion above under the need to protect primary consideration, in relation to the child’s time with the father being supervised by the paternal grandparents, or either of them.
The child has previously spent time with the father at the residence of the paternal grandparents, which time has been able to be managed from a practicality perspective. The Court recognises that should the father choose to permanently reside in (omitted), that he will need to travel a not insignificant distance (from (omitted) to (omitted)) to spend time with the child.

(f) The capacity of each of the child’s parents; and 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 such capacities. In relation to the father, the Court refers to its discussion above under the meaningful relationship and need to protect primary considerations. It is apparent that the child’s exposure to the father’s past family violence and domestic violence has not afforded the child emotional well-being and safety.

(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 Court refers to its discussion above under the need to protect primary consideration in relation to the father.

3)(h) If the child is an Aboriginal child or a Torres Strait Islander child: 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 the likely impact any proposed parenting order under this Part will have on that right

Not applicable.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

The mother’s attitude to the child and to the responsibilities of parenthood have been appropriate. As to the father, the Court refers to its discussion above under the need to protect primary consideration.

(j) Any family violence involving the child or a member of the child's family.

The Court refers to its discussion above under the need to protect primary consideration.

(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: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter.

The Court refers to the father having previously been the subject of ADVOs in relation to Ms A and Ms E, the father’s former partners.

(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.

The parenting orders sought by the father, which are not agreed to by the ICL and the mother, in particular the proposed order sought by the father that if the paternal grandparents are not available to supervise the child’s time with the father, then his present partner Ms J should be permitted to act as a supervisor, would carry a significant risk of there being further proceedings in relation to the child.

m) Any other fact or circumstance that the court thinks is relevant.

The ICL sought an order that the father enrol in and complete the anger management course titled “Taking Responsibility” conducted by Relationships Australia, or a similar course. It is apparent that the father has anger management and impulse control issues. In cross examination, the father minimised and conceded little relating to these issues. It will be in the best interests of the child that the father complete such a course. The family report writer’s evidence is consistent with this view.
Whilst the father may have to travel some not inconsiderable distance over a period of some months (for example, by public transport) to attend such a course, in the view of the Court, it is likely practicable (though the Court recognises not without some inconvenience) that he can attend such a course, and it is important that he complete such a course. The ICL’s submissions have force, in the view of the Court, in this context.
Further, it will be in the best interests of the child that the father continue to engage with his psychologist, and attend all appointments with that psychologist, or other professionals to whom the psychologist refers or recommends, and comply with all reasonable requests of that psychologist or professional.
The mother sought parenting orders (proposed order 9 and 10 in her Amended Response filed 7 April 2017), inter alia, that the father notify her no less than 48 hours prior to the commencement of his time with the child if he will not be attending contact. These proposed orders were opposed by the father and the ICL. In the view of the Court, there is no persuasive evidence that the mother has previously been significantly inconvenienced such as to justify making these orders in the best interests of the child.
The Court proposes to make a final parenting order that the child’s time with the father be supervised by the paternal grandparents, or either of them.
Should the father seek to bring a prospective application to, inter alia, vary the Court’s supervision requirement, then he should first complete the “Taking Responsibility” course or similar course, satisfactorily complete counselling with a psychologist relating to management of anger and impulse control, and has had, and is continuing with, a relationship with Ms J for at least 12 months.

Equal shared parental responsibility: section 61DA(1) and (2)

The father perpetrated family violence against the mother during the relationship, and the presumption of equal shared parental responsibility does not apply. The parties do not communicate effectively with each other. It is unlikely that the parties could reach agreement in a timely fashion on major decisions affecting the child. The mother has been the primary carer of the child since birth to date. It will be in the best interests of the child that the mother have sole parental responsibility for the child. Even if the presumption of equal shared parental responsibility applied, the Court would still regard it as being in the best interests of the child that the mother have sole parental responsibility for the child, noting the above matters (apart from family violence).
The family report writer’s ultimate views as to parental responsibility was consistent with the mother having sole parental responsibility for the child.

Summary

The Court is of the view that it will be in the best interests of the children to make these final parenting orders as follows:
(1)       The mother shall have sole parental responsibility for the child X born (omitted) 2010 (“X”).
(2)       X shall live with the mother.
(3)       X shall spend time with the father as agreed in writing (by email or text message) or otherwise as follows:
(a)         each alternate weekend from 9am Saturday to 5pm Sunday, commencing 2 December 2017;
(b)         On Father’s Day from 10am to 5pm;
(c)          On the father’s birthday from 3pm to 7pm;
(d)         On Christmas Eve from 10am to 7pm.
(4)       X’s time with the father shall be supervised by the paternal grandparents or either of them, upon each of the grandparents filing an appropriate undertaking and that the father provide to the grandparents a copy of these orders. X’s time with the father may also be supervised by another person agreed to by the parties (such agreement to be confirmed by email).
(5)       For the purpose of X spending time with the father, changeover shall occur as agreed in writing between the parties and failing agreement:
(a)         On the father’s birthday, if a school day, by the paternal grandparents or either of them collecting X from school and returning her to the mother or her nominee at the McDonalds Restaurant at (omitted).
(b)         On non-school days, by the paternal grandparents, or either of them, collecting X from the mother or her nominee at the (omitted) Service Station, corner of (omitted) and (omitted), (omitted) and returning X to the mother or her nominee at the McDonalds Restaurant at (omitted).
(6)       X is to have telephone communication with the father each Monday and Thursday between 7pm and 7.30pm or as otherwise agreed in writing, and for this purpose the father is to telephone the mother’s mobile and the mother is to ensure that X is available at those times.
(7)       Within 21 days of the date of these orders the father must:
(a)         Enrol in an anger management course titled “Taking Responsibility” conducted by Relationships Australia or a similar course, and thereafter complete the course;
(b)         Provide to the mother written evidence of his completion of the course promptly upon completion.
(8)       That the father continue to engage with his psychologist Ms M and attend all appointments with that psychologist, or other professionals to whom the psychologist refers or recommends, and comply with all reasonable requests of that psychologist or professional, with such engagement to address particularly the issues of the father’s anger management and depression, particularly in regard to his relationship with X.
(9)       The father is restrained from consuming alcohol or any illicit substances within 24 hours prior to and during his time with X.
(10)     Both parties must keep the other informed of their residential address and contact phone numbers and provide 30 days’ notice of any proposed relocation of either party the one to the other.
(11)     The mother must authorise and do all things, sign all documents and give all consents necessary to enable any school attended by X to provide to the father, at his expense, copies of school reports, school photographs, newsletters, information or documentation relevant to X’s education.
(12)     The mother is to promptly notify the father in writing (including email) of any long-term decisions regarding X’s education, activities or welfare.
(13)     Both parties must advise the other as soon as practicable of any significant illness or hospitalisation relating to X.
(14)     Both parties must not denigrate the other parent or members of the other parent’s family in the presence or hearing of X and neither parent shall permit any other person to so denigrate the other parent or members of the other parent’s family in the presence or hearing of X.
Notation:
A.        It is noted that the father is not precluded from bringing an Application to vary Orders 3, 4 and/or 5 after he has completed the “Taking Responsibility” course, or similar course, after he has completed satisfactorily counselling with a psychologist, and has had, and is continuing with, a relationship with Ms J for at least 12 months.

I certify that the preceding two hundred and nineteen (219) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 24 November 2017

[2017] FCCA 2904

24 November 2017

Key Legal Topics

Areas of Law

Family Law