Euclid & Brantley
[2023] FedCFamC2F 1612
•14 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Euclid & Brantley [2023] FedCFamC2F 1612
File number(s): MLC 4236 of 2020 Judgment of: JUDGE GLASS Date of judgment: 14 December 2023 Catchwords: FAMILY LAW – PARENTING - Whether five year old should continue to spend week about time with each of her parents – Where her father continues to consume alcohol in child’s presence despite an injunction not to – Where child has been exposed to family violence – Where the parties are unable to communicate Legislation:
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAC, 69ZV
Cases cited: Carter & Wilson (2023) FLC 94-129
Eastley & Eastley (2022) FLC 94-094
Groth & Banks [2013] FamCA 430
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Jones v Dunkel (1959) 101 CLR 298
Lennon & Lennon [2011] FamCA 571
Manifold & Alderton (2021) FLC 94-015
Oberlin & Infeld (2021) FLC 94-017
Reeves & Grinter [2017] FamCAFC 19
Vigano & Desmond (2012) FLC 93-509
Division: Division 2 Family Law Number of paragraphs: 100 Date of last submission/s: 6 December 2023 Date of hearing: 5-6 December 2023 Counsel for the Applicant: Ms Jardine Solicitor for the Applicant: Pentana Stanton Lawyers Counsel for the Respondent: Mr Peters Solicitor for the Respondent: Warren, Graham & Murphy Solicitor for the Independent Children's Lawyer: Ruffin Lawyers ORDERS
MLC 4236 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS EUCLID
Applicant
AND: MR BRANTLEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
14 DECEMBER 2023
THE COURT ORDERS THAT:
1.All previous parenting Orders be discharged.
2.The Mother have sole parental responsibility for X, born in 2018, on the condition that she notify the Father of all major long-term decisions made within 7 days of making such a decision.
3.X live with the Mother.
4.X spend time with the Father:
(a)during school terms:
(i)each alternate weekend from after school (or 3:30pm if a non-school day) on Friday until 5:00pm Sunday;
(ii)each alternate Wednesday from after school (or 3:30pm if a non-school day) until 7:00pm;
(b)during school term holidays commencing at 3:30pm on the Friday of what would otherwise be the weekend that X is to spend time with the Father, until the following Friday at 3:30pm;
(c)during summer school holidays commencing at 3:30pm on the Friday of what would otherwise be the weekend that X is to spend time with the Father, until the following Friday at 3:30pm, and each alternate week thereafter; and
(d)at such other times as may be agreed between the parties in writing.
5.X spend time with the parent with whom she is not otherwise living at Christmas from 3:00pm on Christmas Day until 12:30pm Boxing Day.
6.Unless otherwise agreed in writing, changeover occur at school or kinder on school or kinder days and otherwise at the Mother’s residence.
7.X communicate with the parent with whom she is not living each Tuesday night from 5:00pm until 5:30pm.
8.The parties communicate by email or SMS text message only with such communication to be polite, respectful and child focused.
9.Each party shall provide the other with their residential address, contact telephone number and email address, and shall keep those details updated including providing at least 21 days' notice of any change to the residential address of X .
10.Each parent be authorised to obtain information in relation to X from any of her treating medical practitioners and allied health professionals and be authorised to attend separate appointments with same.
11.Both parents be involved in relation to any assessments or diagnosis of X, with each parent to not unreasonably disagree with directions and recommendations of X’s treating medical practitioners and allied health professionals, including in relation to any referrals, treatments, and further appointments.
12.Each party must notify the other immediately of any serious illness or injury suffered by X whilst in their care, including the nature of the illness or injury, treatment received and the name and contact details of any treating medical practitioner and shall authorise any treating medical practitioner to provide and discuss such information with the other parent.
13.The Mother do all acts and things to enrol X in primary school at B School to commence in 2024.
14.The Mother ensure the Father is listed on all enrolment documents as the Father.
15.Both parents be at liberty to attend all school events including concerts, sports days, parent's days, working bees, award ceremonies, parent teacher interviews and any other event that parents are normally invited to attend.
16.Both parents receive all bulletins, notices, applications for photos and access to any school portal that parents would normally have access to.
17.The Father be hereby restrained by injunction from:
(a)drinking alcohol 12 hours prior to X coming into his care; and
(b)drinking alcohol whilst X is in his care.
18.Each party be hereby restrained by injunction from:
(a)denigrating the other parent, their family or friends or permitting another to do so in the presence or hearing of X;
(b)exposing X to family violence;
(c)using illicit drugs or being under the effects of illicit drugs while X is in their care; and
(d)bringing X into the presence of persons using or under the effects of illicit drugs.
19.The Independent Children’s Lawyer be discharged.
20.All extant applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
These proceedings concern X, born in 2018. X is now five years old. She currently lives with each of her parents on a week about basis.
X’s mother, Ms Euclid, now proposes that X live with her and spend time with her father, Mr Brantley, each alternate weekend for two nights and each alternate Wednesday afternoon for approximately three hours. She also seeks sole parental responsibility for X.
Mr Brantley proposes that X continue to live with her parents on a week about basis and that they equally share parental responsibility for her. Mr Brantley relies on his Affidavits filed 15 November 2023 and 1 December 2023, and his Amended Response filed 15 November 2023.
The Independent Children’s Lawyer proposes that X’s parents have equal shared parental responsibility for her, that X spend equal time with her parents during school holidays, but otherwise live primarily with Ms Euclid and spend three nights each alternate weekend with Mr Brantley.
The applications fall to be determined by reference to Part VII of the Family Law Act 1975 (Cth). I am guided by the objects of that Part and the principles underlying those objects.[1] X’s best interests are the paramount consideration.[2] In determining those best interests, I am to consider the matters prescribed by section 60CC of the Act.
PRIMARY CONSIDERATIONS
[1] Family Law Act 1975 (Cth), s 60B.
[2] Family Law Act 1975 (Cth), s 60CA.
The benefit to X of having a meaningful relationship with both of her parents
X’s parents separated in 2019, when she was approximately one year old. She thereafter lived with Ms Euclid and spent liberal time with Mr Brantley. Ms Euclid deposes that she never restricted X’s time with her father. Mr Brantley deposes that X spent time with him for about seven days a fortnight.
In 2019, Ms Euclid travelled to Melbourne. She left X with Mr Brantley and two of her other children, C and D, with a friend across the road. Ms Euclid did not return to Town E as planned two days later after having had car trouble.
Between July 2019 and January 2021, X did not see her mother and resided with Mr Brantley. Ms Euclid acknowledges that she was not in a good place during that period, and that she failed to engage with child protection authorities who were involved with her family.
In January 2021, X commenced spending supervised time with Ms Euclid. In August 2022, she commenced spending two nights each alternate weekend and one overnight each week with her mother.
In May 2023, interim consent Orders were pronounced providing for X to live with each of her parents on a week about basis. Ms Euclid conceded in oral evidence that the current arrangement is working well.
Despite the significant change now proposed by Ms Euclid, Mr Brantley conceded in cross‑examination that if the Court makes the orders sought by her, he will still have a good relationship with X and be able to take her to weekend activities.
A continuation of the existing arrangements would afford X the maximum opportunity to benefit from a meaningful relationship with both of her parents. However, the second primary consideration is to be given greater weight.[3]
The need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
[3] Family Law Act 1975 (Cth), ss 60CC(2A).
Ms Euclid deposes that during the parties’ relationship, Mr Brantley commenced abusing alcohol and illicit substances. She gives evidence that he became aggressive and violent towards her, punching walls and throwing furniture at her. She deposes to him harming her, including when children were present. She gives evidence that in early 2019, when both she and Mr Brantley had been drinking, in the presence of Ms Euclid’s children, Mr Brantley commenced yelling and swearing at Ms Euclid before punching her to the ground, grabbing her neck, lifting her into the air and throwing her to the ground. She deposes to him yelling “I will fucking choke you to death.”[4]
[4] Affidavit of Ms Euclid filed 6 November 2023, paragraph 16.
Mr Brantley admits the parties had “a particularly turbulent relationship”, but disputes “the veracity of [Ms Euclid]’s claims that I abused her and singularly caused her and the children harm.”[5] Nevertheless, he did not challenge Ms Euclid’s evidence in cross-examination.
[5] Affidavit of Mr Brantley filed 15 November 2023, paragraph 16.
In late 2019, he was convicted of offences. Police records suggest the charges relate to the incident in early 2019. I do not accept Mr Brantley’s evidence that is inconsistent with his convictions. I find that Mr Brantley perpetrated the family violence on Ms Euclid to which she deposes.
In April 2023, the Family Report writer, Ms F, opined that, “while currently it appeared that risk of family violence from [Mr Brantley] is low, relapse into alcohol abuse seems a possibility and would raise the risk of family violence to moderate or high.”[6]
[6] Family Report, 18 April 2023 (“Family Report”), paragraph 111.
Pursuant to paragraph 12 of the Orders made 23 May 2023, Mr Brantley was restrained by injunction from drinking alcohol 12 hours prior to, and during any time X is in his care. He deposes that, “[w]hile I do use alcohol, my alcohol use is typically confined to weeks when [X] is not in my care and I don’t believe that my alcohol use negatively impacts on [X].”[7] He thereby does not depose to complying with the injunction restraining him from any alcohol use while X is in his care.
[7] Affidavit of Mr Brantley filed 15 November 2023, paragraph 52.
Ms Euclid deposes that, “3 days after the Interim Orders, [X] told me that [Mr Brantley] had been drinking and fighting with his partner” and that, “[o]n another occasion [X] told me that [Mr Brantley] had been drinking.”[8] Mr Brantley did not respond to the allegations in his affidavit.
[8] Affidavit of Ms Euclid filed 6 November 2023, paragraph 126.
Mr Brantley asked Ms Euclid in cross-examination what specific instances of family violence X had told her about after mid-2023. She gave the following oral evidence, referring to Mr Brantley’s current partner, Ms G:
[MS EUCLID]: There are two significant ones that have been confirmed by the Police history.
….
[MS EUCLID]: [Mr Brantley] and [Ms G] were drinking. [X] counted five cans for dad and five cans for [Ms G]. She showed me distinctively how far apart they were, that they screaming at each other and why they were screaming. Coz [Ms G] was on Dad’s phone. [Ms G] was on Dad’s phone. And then [X] told me she can’t tell me anything anymore because dad will get into trouble. Now that is concerning for me.
….
[MS EUCLID]: Dad kicked [Ms G] out, because they were fighting, and [indistinct] late at night with their door open. He hid [Ms G]’s keys and [Ms G]’s phone. And they were fighting and screaming at each other. [X] came out of her room [indistinct].
She’s just recently told me more. That they’re still fighting and drinking. He’s not showing any regard to not drinking.
Mr Brantley asked Ms Euclid whether X was able to say how much they drink. Ms Euclid gave the following evidence:
Five to six cans, [each]… On one occasion… The last occasion I think she said ten.
Ms Euclid agreed with Mr Brantley’s Counsel that X could have meant five cans. When it was suggested to her that she didn’t know over what period they were consumed, she gave evidence it was “that night”, although subsequently accepted that it could have been that day. She also gave evidence they were consumed by Mr Brantley and Ms G.
Mr Brantley challenged Ms Euclid’s evidence in cross-examination by suggesting that X was only five years old. Ms Euclid gave evidence that X knows how to count cans and that she has seen Ms G crying. Mr Brantley also gave evidence that X can count to about twenty. He also admitted that X has seen Ms G crying during an argument with him. In light of those admissions, I am not satisfied minimal weight should be placed on X’s reports because of her young age.
Ms F reports the following:
[X] spoke about being with her father and [Ms G]. The writer asked [X] if they ever argue while she is with them. [X] then described an occasion of family violence that she witnessed between them. [X]’s description indicated that her father instigated the violence. [X] denied that she was scared but she observed that [Ms G] was crying. [X] was not able to say when this occurred.[9]
[9] Updated Family Report, 26 October 2023 (“Updated Family Report”), paragraph 67.
None of the parties sought to cross-examine Ms F to elaborate on what precisely X had said that lead to those conclusions.
Even if I were to apply the law against hearsay, evidence of X’s representations would not be inadmissible for that reason.[10] I am entitled to give the evidence such weight as I think fit. I determine to give it significant weight, not only in light of Mr Brantley’s own admissions, but also the independent material available from Victoria Police.
[10] Family Law Act 1975 (Cth), s 69ZV.
In mid-2023, the Police recorded the following incident between Mr Brantley and Ms G:
[In late] 2023 Police have been notified by a neighbour, that male and female are having a verbal argument inside […]. On Police arrival, Police members could hear from outside […] a verbal dispute. Police separated both parties and spoke to the male, where he stated that he is going through a difficult time financially, however he is about to start a new job in the coming weeks. He didn’t realise his voice was loud for the neighbours to hear. The female has stated that they just had a verbal about life and the cost of living and there is nothing for Police to worry about. The female was not supportive of any intervention orders and wanted no further Police involvement.
The female stated that her partner had been living away […] and this was putting a strain on the relationship.[11]
[11] Exhibit A2, page 26.
In late 2023, the Police recorded the following:
[In late 2023], [Ms G] was watching [tv] on her phone in her room.
Both [Mr Brantley] and [Ms G] had been drinking all night. [Mr Brantley] entered the room and spoke with [Ms G], taking the phone from her and inviting her to watch [tv] in the loungeroom with him and his daughter [X].
[Ms G] agreed before yelling at [Mr Brantley] for taking her phone. [Ms G] continued to yell and swear at [Mr Brantley] for his past mistakes and told him she was going to leave and drive home.
[Mr Brantley] grabbed her keys, telling her that she has been drinking all night and that she was in no state to drive. [Ms G] continued to yell at [Mr Brantley].
Two of [Mr Brantley]’s neighbours knocked on the door to check on both parties, concerned over the noise and constant yelling.
[Mr Brantley] stepped outside to talk with one of the neighbours, and [Ms G] remained inside.
The second neighbour entered the house and talked with [Ms G].
Police were notified and attended the address [in the evening in late] 2023.
Police spoke with both parties separately.
[Mr Brantley] stated that he had called a taxi for him and [X] wanting to get away for the night to let [Ms G] sleep off the alcohol.
[Mr Brantley] informed Police that [Ms G] had recently lost a family member and had been struggling with the loss.[12]
[12] Exhibit A2, page 24.
Albeit Police had no welfare concerns for the parties and recorded that X was not distressed in any way, it is clear that X was exposed to an alcohol-fuelled episode of family violence between her father and his partner.
Mr Brantley initially gave oral evidence that he had drunk one to two cans of pre-mix alcohol that day. He subsequently gave evidence that he had drunk a few cans. Finally, he gave evidence that he had consumed six cans. In light of those inconsistencies, I do not accept his evidence that he doesn’t believe he was heavily inebriated.
Ms G was present in Court during the proceedings. Mr Brantley did not call her to give evidence. I infer that her evidence would not have assisted him.[13]
[13] Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at [64] per Heydon, Crennan and Bell JJ citing Jones v Dunkel (1959) 101 CLR 298.
Mr Brantley produced a hair sample in mid-2023 which was assessed to reflect excessive consumption of alcohol.[14] Albeit a subsequent Carbohydrate Deficient Transferrin test collected in late 2023 does not suggest recent or ongoing excessive alcohol use, Mr Brantley admitted in oral evidence that he has a problem with alcohol.
[14] Affidavit of Ms Euclid filed 6 November 2023, annexure -25.
Ms F opines that:
While [Mr Brantley]’s recent significant alcohol use result may represent a setback in his recovery from significant alcohol use, it may also be indicative that [Mr Brantley] can maintain a low to moderate level of alcohol use while being monitored, but return to excessive alcohol use when not expecting to be assessed.[15]
[15] Updated Family Report, paragraph 30.
Mr Brantley has an extensive history of involvement with authorities due to his use of drugs, alcohol and violence. His criminal history reveals multiple instances of offending prior to his convictions in 2019.
In late 2022, he also evaded a breath test whilst intoxicated and lost his license.
Mr Brantley suggests that he is obtaining help with his alcohol misuse. He has attended a single drug and alcohol counselling appointment in the last four years. However, he has not ceased using alcohol. Most significantly, he has repeatedly contravened an Order of this Court made with his consent that restrains him from using alcohol in X’s presence. He has also exposed her to family violence. I do not accept that attending a single drug and alcohol counselling session, in light of Mr Brantley’s extensive history, sufficiently ameliorates the risk to X of continuing to be exposed to alcohol use and family violence in her father’s care.
As Ms F opines:
While it is hoped that [Mr Brantley] will engage with services to support his recovery from alcohol misuse it is likely to take at least 12 months for any form of recovery to be considered somewhat reliable. Having reportedly attended [services] in the past, [Mr Brantley] should have developed reflective capacity and insight about when his alcohol use is becoming problematic and be able act on it. He had reportedly completed relapse prevention counselling in 2019, but did not appear to have been able to implement whatever he learned.[16]
[16] Updated Family Report, paragraph 87.
Mr Brantley sought to suggest that a similar level of risk attends X in her mother’s care. I reject the submission. Ms Euclid accepted in oral evidence that her intimate relationships with each of the three fathers of her children has been violent. She nevertheless gave evidence that she is not intending to pursue any further relationships at this time. There is no evidence she has been involved in a violent relationship since separating from Mr H in late 2019.
Ms Euclid gives evidence that she was addicted to illicit substances from the age of 14. She admits that she abused illicit drugs with Mr H in 2019. She broke up with him in that year and deposes to ceasing the use of illicit drugs around three weeks later. She deposes to ceasing illicit substance use in late 2019. To her credit, all of her drug tests, including three hair follicle tests dated late 2020, mid-2021 and mid-2023 have been negative for illicit substances. Her most recent hair follicle test detected low to moderate alcohol consumption. Ms Euclid’s evidence of her sobriety was not challenged. There is no suggestion that she has contravened the Order restraining her from drinking alcohol to excess whilst X is in her care.
ADDITIONAL CONSIDERATIONS
Any views expressed by X and any factors (such as her maturity or level of understanding) that are relevant to the weight to be given to her views
Ms F reports that:
About any changes to the current arrangements such as who might be upset or not like it if she were to live with her mother mostly and see her father on alternate weekends, [X] did not think she should live with her mother primarily because her father loves her. This was said as a statement but without any affect or sense that [X] was speaking about her own reasons or feelings. There was no body language from [X] that suggested she would be upset herself if she were to live primarily with her mother.[17]
[17] Updated Family Report, paragraph 68.
I accept Ms F’s unchallenged expert opinion that:
While [X] impressed as at or above expected maturity she is not capable of making decisions about with whom she should live or which school she should attend …. [X] did not indicate her wishes at interview. She spoke only about her father’s wishes. There should be little weight placed on [X]’s response because she appeared to be acting as her father’s messenger. [18]
[18] Updated Family Report, paragraph 84.
I accordingly also place very limited weight on X’s views expressed to Ms Euclid that she wants to stay with her.
The nature of X’s relationships with each of her parents and other people, including any grandparent or other relative
Ms Euclid deposes that she has a very strong bond with X and that X is very attached to her. She also gives evidence of X being very attached to her half sibling J, who is now three years old. Whilst living with Ms Euclid, X lives with J, C, aged 12 years, and D, aged 16 years. On Ms Euclid’s evidence, X is delighted to also spend time with her older half siblings, Ms K and Ms L, who are now aged 24 and 18 years respectively. Ms Euclid also gives evidence of X’s strong relationship with her maternal grandparents. Ms Euclid’s evidence was unchallenged and uncontradicted. I accept it.
Mr Brantley deposes that his bond with X is strong. Ms F opined:
[X] is likely to have formed an attachment with her father and/or the paternal grandmother within the context of her early childhood history. However, the quality of the attachment is unknown save to say that [X]’s response with her father when she was transitioning to another family member was likely to be indicative of a trauma response or alternatively some degree of coaching.”[19]
[19] Family Report, paragraph 75.
I accept Ms F’s unchallenged evidence that the quality of the attachment between X and her father is unknown.
I accept Ms Euclid’s oral evidence that X’s connection with her paternal grandmother is strong. I also accept Mr Brantley’s unchallenged evidence that Ms G and her children, M, N and O, are close to X, and share a close bond.
The extent to which each of X’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to her, to spend time with her, and to communicate with her
Mr Brantley is rightly critical of Ms Euclid for absenting herself from X’s life for approximately eighteen months. As Ms F opines, her actions caused disruption to X’s attachment with her. Her actions were clearly not in X’s best interests.
Since 2021, Mr Brantley catalogues a number of occasions where Ms Euclid has not spent time with X as ordered. On all but one of those occasions, the reason advanced was medical. I am not critical of Ms Euclid failing to spend time with X in those circumstances.
The extent to which each of X’s parents has fulfilled or failed to fulfil their obligations to maintain her
During the eighteen months X was in her father’s care, Ms Euclid gave oral evidence that although she had been paying child support from her Centrelink benefits for her other children, she was not doing so for X.
There is no other evidence before the Court in relation to child support arrangements for X.
The likely effect of any changes in X’s circumstances, including the likely effect on her of any separation from either of her parents, or any other child or other person, including grandparent or other relative, with whom she has been living
It is proposed that X would move from equally sharing her time with each of her parents to living primarily with Ms Euclid. So much will clearly be a significant change for her, having lived primarily with Mr Brantley from mid-2019 until mid-2023. Nevertheless, it is a change that is recommended by Ms F in light of X’s ongoing exposure to alcohol abuse and family violence in her father’s household. I consider those aspects of X’s safety to be appropriately prioritised over the disruption attendant upon moving to live primarily with Ms Euclid. I also accept Ms F’s unchallenged opinion that X is likely to settle into her mother’s primary care more easily given she has been living equally with each of her parents.
The practical difficulty and expense of X spending time with and communicating with a parent and whether that difficulty or expense will substantially affect her right to maintain personal relations and direct contact with both parents on a regular basis
The parties live within a short distance of each other in Town E. It is not suggested there are any difficulties or expenses impacting X’s right to maintain personal relations and direct contact with both of her parents.
The capacity of each of X’s parents and any other person, including any grandparent or other relative of X, to provide for her needs, including emotional and intellectual needs
Mr Brantley accrued a $3,000 debt to X’s kindergarten as a result of not lodging his taxation return. To her credit, Ms Euclid proposed that she would pay X’s kindergarten fees during her time with Mr Brantley. Mr Brantley has not responded to the proposal. So much reflects poorly on his capacity to provide for his daughter’s needs. Ms F opines that X appeared to have benefited from regular day-care attendance.
Ms F expresses concern about Mr Brantley’s capacity to provide for his daughter’s emotional needs. She opines that:
[Mr Brantley] impressed overall as determining [X]’s needs based on his own needs. In other words, he appeared to struggle to perceive [X] as a separate being to him. Minor behaviours from [X] such as determining where the doll would sleep are indicative that she will try to assert herself as a separate individual at some point, albeit she is likely to be confused about her identity because of influence from her father about his pre-eminence in her life.[20]
…
[Mr Brantley] appeared to confuse his feelings about not being with [X] with [X]’s feelings and to project and interpret that [X] feels the same as he does. Whether this manipulation is intentional seemed unlikely because [Mr Brantley] spoke about what he says to [X] and he demonstrated what he says and does during the observations and while [X] was transitioning between the parents. [Mr Brantley] seemed oblivious to the writer’s observation that he cues [X] to give him a response he wants to hear from her. It was apparent that [Mr Brantley] has difficulties remaining separate from [X] and therefore in attunement to her as a separate person. [Mr Brantley] did not appear to understand how that degree of fusion he has with [X] will negatively impact her confidence as she develops. It is likely to create in [X] a need to express a wish to be with her father without understanding why and without being able to develop appropriate independence as she matures. At a minimum this would lead to difficulties in relationships for [X] in her adult life. It may prime her to be vulnerable to family violence towards her.[21]
[20] Updated Family Report, paragraph 82.
[21] Updated Family Report, paragraph 49.
It was apparent from Mr Brantley’s evidence in cross-examination that he had not acquired an understanding of the concerns raised by Ms F. Despite accepting the significance of the negative consequences for X from the recorded behaviour, he had done nothing to obtain assistance in understanding the behaviours of concern to Ms F. So much also reflects poorly on his capacity to provide for his daughter’s emotional needs.
Ms F considers that, “[Mr Brantley] appeared to lack reflective parenting and to blame [Ms Euclid] for inconsistencies in relation to her time with [X],”[22] and
seemed to be unable to identify that [X]’s behaviours when transitioning from him to other family members were indicative of possible trauma, are not what would be expected from a child aged 5 with a secure attachment with him, and may be indicative of an attachment likely to have been negatively impacted by having been suddenly removed from her mother’s primary care at the age of 18 months and/or alternatively by having her needs met inconsistently.”[23]
[22] Family Report, paragraph 69.
[23] Family Report, paragraph 70.
Nevertheless, she considers that he has “provided a degree of protective stability for [X].”[24] I again accept Ms F’s unchallenged evidence.
[24] Family Report, paragraph 71.
By contrast, Ms F considers that Ms Euclid “appeared to have a good understanding of [X]’s need for recovery from disrupted attachment with her and her likely lived experience of family violence.”[25] To her credit, Ms Euclid has engaged with a significant number of professionals to obtain support. She continues to benefit from regular integrated family services support. Also to her credit, she has completed the Triple P parenting program and Tuning into Kids programs to assist her meet X’s needs.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of X and of either of her parents, and any other relevant characteristics of X
[25] Family Report, paragraph 66.
X is five years old. She will commence school next year. Mr Brantley submits that it is a significant time in her life and one that should occur without the additional change now proposed by Ms Euclid. Certainly Ms F considered in April 2023 that any significant change for X should occur such that X is well settled prior to commencing school in 2024. However desirable that might have been, I consider the risk of X continuing to be exposed to alcohol abuse and family violence in her father’s household to be a more weighty consideration.
If X is an Aboriginal child or a Torres Strait Islander child, her right to enjoy 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 will have on that right
X identifies as Aboriginal. Mr Brantley is a Heritage P man and Ms Euclid is a Heritage Q woman with ancestry from the Region R area. X will continue to have the opportunity to enjoy her indigenous culture in both of her parents’ care. Both parties give evidence of undertaking cultural activities, reading and other activities with X and intending to involve her in cultural activities in the future.
The attitude to X, and to the responsibilities of parenthood, demonstrated by each of her parents
Mr Brantley gave oral evidence that he teaches his daughter what’s right and what’s wrong. He also gave oral evidence that X knows that he is not permitted to drink whilst caring for her. His ongoing consumption of alcohol in her presence does not model right from wrong for his daughter. It reflects very poorly on his attitude to the responsibilities of parenthood.
Mr Brantley gave oral evidence that he had not read Ms Euclid’s trial affidavit, having only flicked through it. He thereby failed to attend not only to the evidence she adduced in these proceedings, but the specific matters of significance to the mother of his daughter. He also failed to attend closely to the family report prepared by Ms F which provides an expert assessment into his family. So much also reflects poorly on his attitude to the responsibilities of parenthood.
Mr Brantley put to Ms Euclid that the suggestion in her evidence that all of her children would be attending the school proposed by her in 2024 was incorrect. Her evidence made no such suggestion. She deposes that, “I seek [X] attend [B School] as this is where my other children ([X]'s siblings) go, and it is walking distance from our home being one block away.”[26] Her evidence is in the present tense and does not refer to who will be attending the school with X next year.
[26] Affidavit of Ms Euclid filed 6 November 2023, paragraph 51(b).
Any family violence involving X or a member of her family
I have referred already to the family violence perpetrated by Mr Brantley to which X has been exposed.
Ms Euclid gave oral evidence that she attended Mr Brantley’s mother’s home in late 2019 and became agitated when she was not permitted to see X. She gave evidence that she then broke a window in a rage.
Mr Brantley deposes that Ms Euclid “has perpetrated family violence against me including through copious amounts of text messages”.[27] He annexes copies of text messages between the parties, although gives no evidence of the period of time in which the messages were sent. The copies annexed to his affidavit bear the Court’s electronic filing seal both on the date of the current affidavit (15 November 2023), and the date of 28 May 2020. Those messages must accordingly have been sent prior to mid-2020, that is at least three and a half years ago. I do not place any significant weight on them given their historicity.
[27] Affidavit of Mr Brantley filed 15 November 2023, paragraph 15.
I do not accept Mr Brantley’s suggestion that Ms Euclid’s contact with Police for the purpose of seeking a welfare check on X in her father’s care is a form of control of him. To repeat, he has been contravening Orders of this Court not to drink in X’s presence.
If a family violence order applies, or has applied, to X or a member of her family, any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order, and any other relevant matter
An interim Intervention Order to protect Ms Euclid, X, D, C and Ms L from Mr Brantley was made in early 2019 with Mr Brantley’s consent. A final Order was made in mid-2019 in Mr Brantley’s absence. I decline to draw any inferences from the making of those Orders in those circumstances.
In early 2023, an interim Intervention Order was granted for the protection of Ms Euclid, X, C and D from Mr Brantley in Mr Brantley’s absence. It was subsequently varied in late 2023 with Mr Brantley’s agreement. I decline to draw any inferences from the making of the Orders in those circumstances.
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 X
I accept Ms Euclid’s submission that a continuation of the week about arrangement for X is likely to lead to further proceedings in relation to her. Her father has been non-compliant with Orders restraining his alcohol use in X’s presence. A continuation of that behaviour during the seven nights per fortnight he proposes that X live with him, places her at increased risk of further proceedings being necessitated.
Any other relevant fact or circumstance
Not relevant.
PARENTAL RESPONSIBILITY
The presumption that it is in X’s best interests for her parents to have equal shared parental responsibility for her does not apply, because there are reasonable grounds to believe Mr Brantley has engaged in family violence.[28]
[28] Family Law Act 1975 (Cth), s 61DA.
Mr Brantley and the Independent Children’s Lawyer nevertheless seek an order that X’s parents have equal shared parental responsibility for her. Such an order would require the parties to make joint decisions about major long-term issues affecting X, to consult each other in relation to such decisions and make a genuine effort to come to joint decisions about such issues.[29]
[29] Family Law Act 1975 (Cth), s 65DAC.
Ms F reports that:
The parents agree they have been unable to communicate about [X]’s needs. [Ms Euclid] reported that she tries to contact and speak with [Mr Brantley] but he refuses to communicate.[30]
[30] Updated Family Report, paragraph 25.
Ms Euclid gave oral evidence that the parties don’t communicate. She deposes that Mr Brantley excludes her from decisions regarding X. Mr Brantley did not challenge that evidence and I accept it.
The parties were in dispute about the school X is to attend in 2024. X spoke to Ms F in October 2023 as if she would be attending Mr Brantley’s preferred school. Ms F opined that to be “concerning because the parenting decision about her school has not yet been made”.[31]
[31] Updated Family Report, paragraph 65.
Ms Euclid gave unchallenged and uncontradicted evidence that the first she had heard of Mr Brantley agreeing to her proposed school was when she read his affidavit filed 15 November 2023. He had not communicated with Ms Euclid about his decision directly.
The evidence does not satisfy me that X’s parents have the capacity necessary to communicate and reach joint decisions about major long-term issues affecting her. The parties have been involved in extensive litigation in this Court in relation to X since their separation. In light of the intractable and probably enduring conflict, I am not satisfied they have the necessary capacity to comply with the obligations imposed by section 65DAC of the Act.[32] Their aspirations to improve their communication in the future does not establish the necessary capacity to my satisfaction.
[32] Manifold & Alderton (2021) FLC 94-015 at [109] per Austin J.
I conclude that it is not in X’s best interests for her parents to have equal shared parental responsibility for her.
Whilst it is a significant step to deprive Mr Brantley of parental responsibility with which he is invested by law,[33] I am satisfied that X’s best interests are served by Ms Euclid being solely responsible for the exercise of parental responsibility. Mr Brantley has not demonstrated a capacity to communicate appropriately with Ms Euclid in relation to major long-term decision making. He has embroiled X in the dispute about her school enrolment. He has demonstrated an inability to comply with injunctive orders made to ensure X’s safety.
[33] Lennon & Lennon [2011] FamCA 571 at [108]; Groth & Banks [2013] FamCA 430 at [179].
I also agree with Ms Euclid that X’s best interests are served by Mr Brantley being advised of any major long-term decisions she makes.
CONCLUSIONS
Ms F opines that:
The current risks of concern to [X] are currently her father’s reportedly high-level use of alcohol and reported family violence with [Ms G]. If accepted these reports add support to [Ms Euclid]’s allegations of a pattern of family violence instigated by [Mr Brantley] towards her. There are concerns that [X] did not express fear about the family violence she reportedly witnessed and that she may be normalised to family violence.[34]
[34] Updated Family Report, paragraph 85.
She recommends a continuation of the week about arrangement only if “the Court accepts the father’s narrative and that he poses no risk of alcohol abuse and family violence to [X].”[35] As the Independent Children’s Lawyer emphasises, the recommendation is contingent upon a finding that Mr Brantley poses no relevant risk. Such a finding is unsustainable on the evidence before the Court. Mr Brantley has continued to abuse alcohol during X’s time with him. He has also continued to expose her to family violence.
[35] Updated Family Report, paragraphs 101-109.
Mr Brantley accepts that Ms F’s recommendation, in light of the evidence now before the Court, is for X to live with Ms Euclid and spend time with her father for two nights each alternate weekend. Of course, the weight to be given to Ms F’s evidence is within my discretion.[36] Nevertheless, were I not to follow those recommendations, some explanation and demonstration that I have properly taken into account the matters raised is required.[37]
[36] Carter & Wilson (2023) FLC 94-129 at [50] per Bennett J, quoting Reeves & Grinter [2017] FamCAFC 19 at [15].
[37] Vigano & Desmond (2012) FLC 93-509 at [87].
Mr Brantley submits that I should prioritise the status quo in circumstances where X lived primarily with him from the age of eighteen months. He submits that both parties present an equivalent level of risk to X as a result of their histories of drug and alcohol abuse, and exposure of X to family violence. I do not accept that those matters outweigh the immediate risk to X in her father’s care. Despite Orders of the Court, he has continued to abuse alcohol in her presence and expose her to family violence. I do not find an equivalency in the risk Ms Euclid currently poses to X.
Ms F considers that reducing X’s time with her father “would also make it less likely that [X] would be exposed to family violence and alcohol abuse in [Mr Brantley]’s home if that is occurring. It is easier to refrain from alcohol abuse for 2 or 3 nights than it is for 7 nights.”[38]
[38] Updated Family Report, paragraph 58.
Balancing X’s relationship with her father and his historical care for her, with his continued exposure of her to alcohol abuse and family violence, I find Ms F’s recommendations to now be in X’s best interests.
Ms Euclid proposes that X spend time with her father for two nights each alternate weekend. So much is consistent with Ms F’s recommendation. The Independent Children’s Lawyer proposes that the alternate weekend time comprise three nights. Whilst the difference between a changeover at 5:00pm on Sunday and one before school on Monday is modest, I find no reason to depart from Ms F’s recommendation and find Ms Euclid’s proposal to be in X’s best interests.
Ms F recommends that X spend time with her father on a weekday in alternate weeks from after school until 7:00pm. That position is adopted by the Independent Children’s Lawyer. Ms Euclid contends for a return time of 6:30pm. She advanced no submissions in support of her position. I accept Ms F’s recommendation which will afford X a greater opportunity to benefit from the time with her father.
The Independent Children’s Lawyer proposes that X spend time with Mr Brantley for half of school holiday periods. Ms Euclid made no such proposal, but conceded in submissions that additional time in holidays is appropriate. I consider the Independent Children’s Lawyer’s proposal to be in X’s best interests, it is essentially consistent with Ms F’s recommendation. Even if Mr Brantley is working, it will afford X the opportunity to spend time with extended paternal family members.
Ms Euclid proposes that X spend time with her father on Christmas Day. Mr Brantley makes no proposal for X to spend time with her parents on special occasions. The Independent Children’s Lawyer makes proposals for X to spend specific time with her parents on her birthday, Mother’s Day, Father’s Day, and at Christmas. Whilst I consider it desirable for X to have the opportunity to spend days of special significance with each of her parents, absent either of her parents adopting the detailed proposal of the Independent Children’s Lawyer, I will make provision only for Christmas as is proposed by Ms Euclid. I will provide for X to spend time with the parent with whom she is not otherwise living that day. The parties will also be able to make alternative arrangements by agreement.
Mr Brantley proposes changeovers occur at Town E McDonald’s. Ms Euclid and the Independent Children’s Lawyer propose that changeovers that do not occur at school occur at Ms Euclid’s residence. Mr Brantley made no submissions in support of the relief he seeks. Although the Independent Children’s Lawyer proposes restraints on the parties approaching each other at changeover, I am not satisfied such restraints are necessary. Mr Brantley gave evidence that the parties communicated with each other at a recent changeover, which communication I do not consider should be impeded by the relief sought by the Independent Children’s Lawyer. I also consider X’s best interests would be served by changeover occurring at home rather than a McDonald’s, so as to normalise the interactions between her parents to the extent that can be achieved.
Ms Euclid alone proposes that X communicate with her father during the time she lives with her. Given X will live primarily with her mother, I am satisfied that proposal is in X’s best interests. I will provide for such communication to also occur during the holiday weeks when X will be in her father’s care.
The parents agree on orders being made regulating their communication with each other, the provision of information to each other, and obtaining medical and school information for X. They also agree on X’s school enrolment. I consider the agreed relief to be in X’s best interests. Given the conclusion I have reached in relation to the allocation of parental responsibility, I will require Ms Euclid to facilitate that enrolment, as she proposes.
The Independent Children’s Lawyer and Ms Euclid propose that Mr Brantley be restrained from consuming alcohol while X is in his care. Mr Brantley opposes the relief sought but made no submissions in support of his position. He previously consented to such an Order being in X’s best interests. In light of the risks identified by Ms F attending Mr Brantley’s alcohol abuse, and his own admission of having an alcohol problem, I consider X’s best interests are served by her father being restrained from consuming alcohol whilst caring for her.
Whilst it was previously also agreed for Ms Euclid not to consume alcohol to excess whilst caring for X, I am not satisfied that the evidence supports the continuation of the injunction as is sought by the Independent Children’s Lawyer. There is certainly no evidence of Ms Euclid abusing alcohol in recent years.
All parties seek restraints on the parents denigrating each other in X’s presence, exposing her to family violence, or using illicit substances in X’s care. I prefer the Independent Children’s Lawyer’s formulation which also restrains X being exposed to other adults under the influence of illicit drugs. There is no evidentiary foundation for the restraint proposed by the parents against physical chastisement.
Ms Euclid proposes that she be at liberty to request Mr Brantley to undertake ongoing alcohol testing, with the consequence that if such testing shows excessive alcohol use, X’s time with her father be suspended until he provides a nil or low alcohol use screen. I am not satisfied the relief sought is in X’s best interests. Mr Brantley has been abusing alcohol in recent times, and it has nevertheless been the position that X can continue to spend extended time with him. To completely sever X’s relationship with her father is a significant step that is not warranted on the evidence now before the Court. I also consider the relief sought likely to lead to further proceedings, given the disputes that may arise about the interpretation of testing results.
Ms Euclid also proposes that Mr Brantley enrol in and complete a variety of courses and programs. The relief sought is in the form of a self-standing order untethered and disconnected from any particular order. I am not satisfied I am empowered to grant the relief sought,[39] and for that reason decline to do so.
[39] Oberlin & Infeld (2021) FLC 94-017 at [51], [52] and the cases there cited; Eastley & Eastley (2022) FLC 94-094 at [58].
Mr Brantley proposes that X not be introduced to any new partner of Ms Euclid until the relationship has subsisted for six months. He also proposes that both parties be prohibited from relocating beyond Region S with X without the other party’s consent. He made no submissions in support of either proposal. The evidence does not support the making of either injunction, which I accordingly do not consider appropriate for X’s welfare.
Whilst the intent of the order proposed by the Independent Children’s Lawyer for the parties to encourage and not undermine X’s relationship with the other parent is laudable, I am not satisfied it is in X’s best interests. It is aspirational rather than enforceable. There is also no need for the order proposed by the Independent Children’s Lawyer permitting Ms Euclid to involve X with counselling support. She has the necessary parental authority to make such arrangements.
I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 14 December 2023
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