Fairfield & Daffney
[2023] FedCFamC2F 531
•9 May 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fairfield & Daffney [2023] FedCFamC2F 531
File number(s): PAC 4277 of 2020 Judgment of: JUDGE NEWBRUN Date of judgment: 9 May 2023 Catchwords: FAMILY LAW – CHILDREN – Best interests of child – Orders made. Legislation: Australian Passports Act 2005 (Cth) ss 11(1)–(2)
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 68B
Division: Division 2 Family Law Number of paragraphs: 198 Date of hearing: 26–28 April 2023 Place: Parramatta Counsel for the Applicant: Mr Friedlander Solicitor for the Applicant: Fletch Law Counsel for the Respondent: Ms Stolier Solicitor for the Respondent: Ark Law Lawyers Counsel for the Independent Children's Lawyer: Ms Hayward Solicitor for the Independent Children's Lawyer: Mahony Family Lawyers ORDERS
PAC 4277 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR FAIRFIELD
ApplicantAND: MS DAFFNEY
RespondentINDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE NEWBRUN
DATE OF ORDER:
9 MAY 2023
THE COURT ORDERS THAT:
1.All prior parenting orders shall be discharged.
2.The mother shall have sole parental responsibility for the child X (“X”) born in 2014.
3.X shall live with the mother.
4.The father shall spend no time, and have no contact, with X, save and except for as set out in Order 5 below.
5.The father shall be permitted to send a card and gifts to X each year on his birthday and for Christmas and to facilitate this within 7 days of the date of these orders, the mother shall nominate to the father a postal address for the purpose of receiving these items.
6.Within 14 days of the mother receiving a copy of X’s school report she shall provide a copy of it to the father via post or email.
7.Within 14 days of the mother receiving a Paediatric Report for X she shall provide a copy of it to the father via post or email.
8.In the month of June and December each year the mother shall send to the father by email or post a current photograph of X.
9.Within 7 days of the date of these orders the father shall provide to the mother a nominated postal address and email address for the purpose of receiving the reports and photographs in accordance with Orders 6, 7 and 8.
10.Within 14 days of the date of these orders, the mother shall enrol in and subsequently attend, counselling targeted at improving her psychological function and self-regulation capacity.
11.The mother shall continue to engage X with Dr B (or such other paediatrician or paediatric GP she is referred to in the event that Dr B is no longer available or does not have the requisite expertise to treat X) and shall comply with all recommendations made, including arranging any recommended assessments as soon as practicable and implementing all recommendations in relation to medication and other treatments for X.
12.Leave is granted to the mother to provide a copy of the Single Expert Report of Ms C released 19 May 2022 to her counsellor.
13.Within 14 days of the date of these orders, the mother shall do all things necessary to enrol in the Triple P Parenting course and thereafter complete the course.
14.Leave be granted for all clinicians working with the family to be given a copy of the Single Expert Report of Ms C released 19 May 2022.
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 Fairfield & Daffney has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
A final parenting hearing was held on 26–29 April 2023 in respect to the child, X, born in 2014 and aged 8 years.
Both parties are aged 40 years.
The parties’ relationship was from early 2013 to January 2020.
The father’s last face-to-face time with the child was on the child’s first day at school on 27 February 2020.
On 5 June 2020 the father was charged with having, during the period from 1 September 2019 to 25 December 2019, intentionally sexually touched the mother’s child from a prior relationship, D, born in 2007. He was also charged with an assault occasioning actual bodily harm upon this child during the same period. These charges were heard by the Local Court on 31 March 2021 and 14 April 2021; the father was found not guilty of the sexual touching charges and they were dismissed, however the father was found guilty of the assault charge relating to him having bitten this child. In relation to the assault charge the father was fined and a community correction order of three years was imposed with the father not to have contact with this child.
PROPOSALS
The father seeks final parenting orders in accordance with his Amended Initiating Application filed 3 October 2022; he seeks orders, inter alia, that the parties have equal shared parental responsibility for the child; and that the child spend time with the father, during school terms, each alternate weekend from after school Friday to before school Monday, together with half of each school holiday period.
The ICL seeks final parenting orders as set out in her proposed Minute of Final Orders; she seeks Orders, inter alia, that the mother have sole parental responsibility for the child; and that the child spend no time with and have no contact with the father save for the father being permitted to send a card and gifts to the child each year on his birthday and for Christmas. The ICL’s proposed orders also set out that:
1. All prior parenting orders shall be discharged.
2.The mother shall have sole parental responsibility for the child [X] (“[X]”) born in 2014.
3. [X] shall live with the mother.
4.The father shall spend no time, and have no contact, with [X], save and except for as set out in Order 5 below.
5.The father shall be permitted to send a card and gifts to [X] each year on his birthday and for Christmas and to facilitate this within 7 days of the date of these orders, the mother shall nominate to the father a postal address for the purpose of receiving these items.
6.Within 7 days of the mother receiving a copy of [X]’s school report she shall provide a copy of it to the father via post or email.
7.Within 7 days of the mother receiving a Paediatric Report for [X] she shall provide a copy of it to the father via post or email.
8.In the month of June and December each year the mother shall send to the father by email or post a current photograph of [X].
9.Within 7 days of the date of these orders the father shall provide to the mother a nominated postal address and email address for the purpose of receiving the reports and photographs in accordance with Orders 6, 7 and 8.
10.Within 14 days of the date of these orders, the mother shall enrol in and subsequently attend, counselling targeted at improving her psychological function and self-regulation capacity.
11.The mother shall continue to engage [X] with [Dr B] (or such other paediatrician or paediatric GP she is referred to in the event that [Dr B] is no longer available or does not have the requisite expertise to treat [X]) and shall comply with all recommendations made, including arranging any recommended assessments as soon as practicable and implementing all recommendations in relation to medication and other treatments for [X].
12.Leave is granted to the mother to provide a copy of the Single Expert Report of [Ms C] dated 7 April 2022 to her counsellor.
13.Within 7 days of the date of these orders, the mother shall do all things necessary to enrol in the Triple P Parenting course and thereafter complete the course.
14.Leave be granted for all clinicians working with the family to be given a copy of the Single Expert Report of Ms C dated 7 April 2022.
The mother adopts the ICL’s above proposed final parenting orders.
MATERIAL RELIED UPON
The father relied upon:
(a)His case outline;
(b)His Amended Initiating Application filed 3 October 2022;
(c)His affidavit filed 3 October 2022;
(d)Single Expert Report of Ms C dated 7 April 2022 (Exhibit J).
The mother relied upon:
(a)Her case outline filed 19 April 2023;
(b)Her Amended Response filed 3 November 2020;
(c)Notice of child abuse, family violence or risk filed 3 December 2020;
(d)Her affidavit filed 12 October 2022;
(e)Single Expert Report of Ms C dated 7 April 2022.
The ICL relied upon:
(a)Their case outline filed 21 April 2023;
(b)Single Expert Report of Ms C dated 7 April 2022.
Exhibits
The following documents became exhibits:
(a)Exhibit A: Sentencing remarks dated 14 April 2021 (Pages 30–35 of ICL’s tender bundle);
(b)Exhibit B: Criminal record of Mr Fairfield (Pages 73–75 of ICL’s tender bundle);
(c)Exhibit C: ADVO currently protecting D (Pages 24–27 of ICL’s tender bundle);
(d)Exhibit D: Community Corrections Order dated 14 April 2021 (Pages 28–29 of the ICL’s tender bundle);
(e)Exhibit E: Letter from father’s employer regarding work roster;
(f)Exhibit F: Photos produced by the father taken prior to separation (3 middle photos);
(g)Exhibit G: Clinical notes of Dr B;
(h)Exhibit H:
(i)DCJ Records (Pages 5, 7, 12, 16, 17, 23, 25 of father’s tender bundle);
(ii)Page 27 of father’s tender bundle and complete E Mental Health Services Intake assessment.
(i)Exhibit I: Progress Notes from Dr F dated 8 June 2021;
(j)Exhibit J: Single Expert Report of Ms C dated 7 April 2022.
Evidence
In the determination of this case the Court has had regard to all of the documentary evidence referred to above, together with the oral evidence of the parties, the paternal grandmother, and the Single Expert Report writer. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed. However, those that are relevant to the Court’s determination will be considered either in this section or whilst addressing the section 60CC factors (see below). Evidence referred to under the section 60CC considerations shall, in the event of any conflict with the evidence referred to in this section, take precedence.
Affidavit of the father
The mother has two children from a prior relationship:
·D (“D”). She was born in 2007 and is currently 15 years of age.
·G (“G”). He was born in 2012 and is currently 10 years of age.
The father also has a child from a previous relationship:
·H (“H”). He was born in 2005 and is currently 17 years of age.
The father states at paragraph 10 of his affidavit that:
10.Final Parenting Orders have been in place with respect to [H] since 22 February 2008 and I have spent regular time with him since the date of those Orders. However, I have not seen [H] since in or around April 2022. He likes to “hang out” with his friends on the weekend now as opposed to coming and spending time with me.
The father states at paragraph 21 of his affidavit that:
21.Throughout my relationship with [Ms Daffney], I had various jobs which were flexible with their hours. This enabled me to spend significant amounts of time with [D], [G] and [X]. Such work included assisting a friend with trades work and in 2015 I began working at [Employer J] in [Suburb K].
The father states at paragraph 45 of his affidavit that:
45.During the relationship, [Ms Daffney]and I often had verbal arguments between the two of us. We often had arguments about her yelling at the children and about money. …
The father states at paragraph 55 of his affidavit that:
55.In or around Christmas time 2017, [Ms Daffney] and I had an argument about money which resulted in her throwing a remote towards me. …
56. [Ms Daffney] did not like that I called her lazy, so she stood in front of me and started pushing at my face with her palms. [Ms Daffney] and I then had the following conversation, words to the effect of:
Me: “I am going to go to my mum’s”
[Ms Daffney]: “You’re not going nowhere”
Me: “I’m going because this is going to end in us arguing”
[Ms Daffney] continued to palm me in the face. I grabbed both of her arms and held them above her head so that she would stop. [Ms Daffney] then kneed me in the leg.
...
58.I took [X] to the car and buckled him in when [Ms Daffney] started ripping at my shirt. [Ms Daffney] tried to take [X] out of the car so I locked the door. I then unlocked the driver’s side door, got in the car and went to my mother’s.
After 12 February 2020, the father became aware that a complaint had been made about him to the NSW Police by D. As a result of such complaint, the father was charged with 3 offences, being 2 offences under Section 66DB(a) of the Crimes Act, 1900 (intentionally sexually touch child 10 years or older and under 16 years) and 1 charge of assault occasioning actual bodily harm under Section 59(1) of the Crimes Act, 1900. The father denied the allegations and pleaded not guilty to each of the charges. The father is concerned that the mother coerced D into making false allegations against him to prevent him from seeing any of the children.
In relation to the above charges, the father denies that he has ever been alone in his bedroom with D; he denies that he has ever wrestled alone with D; he states that he would have kissed D on the cheek but only as a way of showing fatherly affection as her stepfather; he denies that on one occasion D wrestled free from him and slapped him across the face and that he then bit her on the upper chest. The father asserts that a picture provided to the Local Court by the police prosecutor allegedly showing a bite mark on D did not look at all like a bite mark, but rather an insect bite that D had scratched.
The father now lives in a rental property at Suburb L being a property owned by the paternal grandmother. It is a four bedroom house. The father’s sister M, aged 12 years, also lives there.
The father works on a casual basis at Employer J in Suburb K.
The father feels as though he is suffering from depression due to his separation from the child and is not currently taking any medication for this.
The father asserts that he has always had a very close relationship with the child and G. The child and H had a very close relationship.
The father asserts that the child always had a very close relationship with the paternal grandmother, and he asserts that the child had a close relationship with his brothers and his sister Ms N.
The father asserts he currently pays about $68 a fortnight in child support for the child.
Affidavit of the mother
The mother states at paragraph 10 of her affidavit that:
10.Although [Mr Fairfield] cooked dinner occasionally, I was primarily responsible for caring for the children and doing the housework, including preparing meals, cleaning the house, taking the children to appointments, and monitoring the children’s progress in school. [Mr Fairfield] preferred to drink alcohol, gamble, or play PlayStation and regularly engaged in these activities alone rather than spend time with the children. …
11.Throughout my relationship with [Mr Fairfield], finances were a constant source of tension and resulted in numerous heated arguments and temporary periods of separation. For the duration of my relationship with [Mr Fairfield], I worked part-time as a contractor for [Employer O], and I continue to engage in this work. [Mr Fairfield] engaged in casual employment for around half the duration of our relationship; however, he kept losing jobs and made only minimal financial contributions towards the household. In addition to being responsible for most household duties, I was responsible for paying all household bills except for the Foxtel bill. …
12. [Mr Fairfield] had an explosive temper which was exacerbated by his drinking, and he was abusive towards me on many occasions. [Mr Fairfield] called me derogatory names such as “bitch, “slut”, “fat”, and “idiot” and accused me of infidelity. [Mr Fairfield] often made threats of violence against me: I can recall him saying, “I’ll throw you down the stairs” numerous times. On one occasion, in 2015 or 2016, [Mr Fairfield] took my mobile phone out of my hands during an argument and, when I tried to take it back, roughly grabbed my left arm and pushed me against a wall, leaving me badly bruised. [Mr Fairfield] then left the house with [X]. I called the police, who found [Mr Fairfield] at his mother’s house and instructed him to bring [X] back to our home.
13. [Mr Fairfield] and I separated on a final basis on 10 January 2020, and he moved out of our family home on 15 January 2020.
The mother states at paragraph 14 of her affidavit under the heading “Risk to children” that:
14.In addition to witnessing [Mr Fairfield] verbally abuse me on many occasions, the children were also subject to frequent verbal and physical abuse from [Mr Fairfield]. There are two occasions upon which [Mr Fairfield] was physically aggressive towards [X], which stand out in my memory.
15.I recall that in 2016 when [X] was between 2 and 3 years old, he woke [Mr Fairfield] up in the morning by asking him to open a packet of chips. [Mr Fairfield] said, “shut up, you fucking cunt” and hit [X] hard on his arms and legs 5 or 6 times, leaving red marks on his skin. My niece, [P], who was staying over at our house at the time, witnessed this incident.
16.On 28 December 2019, I observed [Mr Fairfield] push [X], shouting, “if you don’t move out of the fucking way, I’ll throw you through the fucking window.” I said, “you don’t say that to a five-year-old, don’t talk to him like that,” [Mr Fairfield] responded, “I’ll do what I want.”
The mother denies that she ever slapped D in the face. She states at paragraph 18 of her affidavit that:
18.… I further say that [Mr Fairfield] regularly resorted to physically punishing the children whilst I have always avoided smacking them.
19. [Mr Fairfield] has always been a heavy drinker and becomes markedly more aggressive when under the influence of alcohol. On one occasion in late 2018, [D] told me that [Mr Fairfield] threatened her and [H] – his child from a previous relationship – with a knife whilst drinking and stabbed the [pet’s] cage. I believe [Mr Fairfield] was heavily intoxicated at the time, as he was slurring his words and struggling to walk without stumbling. I also have seen [Mr Fairfield] hit and kick his pet dog whilst intoxicated.
The mother states at paragraph 28 of her affidavit under the heading “D’s allegations of sexual assault” that:
28. [D] continues to be traumatised by [Mr Fairfield]’s conduct, and the events involving the police and the Court have taken a tremendous emotional toll on her. She is currently medicated for anxiety. Further, her academic progress has been negatively affected, and she lacks the motivation to attend school. She is confronted at school mainly by continual taunts from students who are aware of the allegations she made by against [Mr Fairfield].
The mother states at paragraph 29 of her affidavit under the heading “My Fears of Mr Fairfield’s conduct” that:
29.Despite the AVO against [Mr Fairfield] preventing him from stalking, harassing, or intimidating anyone with whom [D] has a domestic relationship, [Mr Fairfield] harassed and intimidated me following the end of our relationship. On one occasion, I heard banging on my front door and looked out the window: I saw [H] and [Mr Fairfield] running through my front garden and across my driveway. …
30.… In October 2020, on numerous occasions, I saw [Mr Fairfield] driving slowly past me while I picked [X] and [G] up from [Q School] after the school day. I feared [Mr Fairfield] would follow us home to discover our address.
…
32.From February 2022, [X] began year two at a new school, [R School]. I did not inform [Mr Fairfield] of the change. Despite this, I have seen [Mr Fairfield] driving his car past [X]’s new school, and I see [Mr Fairfield] driving along the main road to the school at pick-up and drop-off. I am unsure how [Mr Fairfield] discovered [X] was attending his new school. I am constantly frightened that [Mr Fairfield] will go to [X]’s school and take [X] away and I fear [Mr Fairfield] will follow us to discover our address.
The mother states at 33 of her affidavit under the heading “Special Needs of X” that:
33. [X] is diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Oppositional Defiant Disorder (ODD). These disorders manifest as tantrums, hyperactivity, resistance to discipline, and learning difficulties. I have previously struggled to discipline [X] as he was highly defiant and would throw a tantrum if I (sic he) did not get his way; I am better able to discipline [X] now, as I try to avoid raising my voice at him and use a technique taught to me by one of [X]’s teachers: I provide [X] with two options from which he must choose. For example, I will say, “[X], do you want to do the group activity now, or do you want to do it in your own time at lunch?” and [X] will choose to do the activity “now” rather than miss out on playtime with his friends.
34. [Mr Fairfield]’s approach to disciplining [X] always involved shouting at him and hitting him, which tended to exacerbate [X]’s oppositional behaviour. Despite my attempts at establishing a routine for [X], [Mr Fairfield] would disrupt this regularity by coming home late at night, waking the children by slamming doors and shouting, and encouraging [X] to play games on his mobile phone and the PlayStation. Since [Mr Fairfield] moved out of our home, [X] has become more settled and relaxed.
35.Historically, [X] regularly saw [Dr F], a paediatrician at [S Medical Centre], who evaluated his progress and development, prescribed medications and recommended other support services.
36.In February 2022, prior to [X] being put on his current medication when he had just started at his new school, [X] reacted to the direction of his teacher by putting a pair of scissors to his throat in front of the class and saying, “I want to die”. However, since being on medication, [X] has not behaved this way.
37.Because [X]’s prescribed medications by [Dr F] did not have the effect we hoped for, and I sought a second opinion in March 2022, and [X] began seeing [Dr B] at [T Medical Centre] in [Town U]. [X] is currently prescribed anti-depressants. After six months [X] will be reassessed. [X]’s next appointment with [Dr B] is in late October 2022, and I expect [X] will be prescribed other medications to manage his ADHD or ODD.
38.I have worked with [X]’s new school to arrange extra funding to assist [X] with his special needs. [X] has struggled academically and socially. However, he has improved, as shown by comparing his school report in semester one of 2020 from [Q School] and his most recent school report in semester one of 2022.
39.From around July 2022, [X] has attended a psychologist for six sessions, and I have applied for another mental health plan for [X] so he can continue being treated by the psychologist [Dr V] of [W Psychology] in [Suburb Y].
…
45.I have attempted to assist [X]’s academic progress by reading with him and doing mathematics activities daily. However, he struggles with focus and attention and would rather play video games. I have attended parenting classes specific to [X]’s age and special needs. I continue to read literature as I am determined to understand better how to support his learning and development. [Mr Fairfield] has never accompanied [X] to his paediatrician appointments and has little to no knowledge of his special needs.
The mother states at 46 of her affidavit under the heading “Time spent with Mr Fairfield” that:
46. [X] has not spent time with his father since 24 January 2020, which I supervised. The last time [X] spoke with [Mr Fairfield] was in November 2020, for [X]’s sixth birthday.
The mother states at 48 of her affidavit under the heading “Current circumstances” that:
48.The children and I reside in a large four-bedroom house where [D] and I have our own bedrooms, and [X] and [G] share a bedroom. There is a study, two loungerooms and a backyard: the children have plenty of space to play.
…
50.I do not want [Mr Fairfield] to be a part of our lives because I am afraid of him and how memories of his conduct and the possibility of future violent behaviour will affect the children. [Mr Fairfield]’s behaviour has had a catastrophic effect on [D], from which I fear she will never recover. [Mr Fairfield]’s conduct toward [D] has also significantly impacted [X]’s life. [X] has sensed [D]’s distress, and this negatively affects him. …
51.I am concerned that [Mr Fairfield] poses a serious risk to [X], given his propensity for physical violence and aggression, heavy drinking, risk-taking behaviours such as drunk driving, his inability to respect boundaries, and because he has been charged with sexually abusing and assaulting [X]’s older sister. …
52.To my knowledge, [Mr Fairfield] does not have his own home and lives with his mother, sister, and brother in his mother’s house at [Suburb L]. If [X] were to stay overnight, there would be nowhere for him to sleep.
53.[Mr Fairfield] and I do not have adequate communication to support equal shared parental responsibility, and we have never co-operated in caring for [X] on an ongoing basis. Other than when [X] was a newborn baby, [Mr Fairfield] has been largely disinterested in his well-being and has had minimal involvement in his care. [Mr Fairfield] is unfamiliar with [X]’s special needs and has never taken him to a doctor’s appointment. Furthermore, as detailed previously, [Mr Fairfield] is subject to an AVO that restrains him from being within 100 metres of where [D] lives and, therefore, cannot approach our home.
54.I am seeking sole parental responsibility for [X] and for him to continue living with me. I believe that this would be in [X]’s best interests as his ODD and ADHD necessitate a stable routine and home environment. Further, [Mr Fairfield] is unaware of [X]’s special needs and any health issues beyond his dermatitis and has never demonstrated a capacity to maintain [X]’s long-term well-being.
55.I believe [Mr Fairfield] poses a danger to [X] given his heavy drinking, aggression, inability to understand and address [X]’s needs, and his sexual abuse of [X]’s older sister [D]. As such, I believe it is in [X]’s best interests to have no contact with his father, as this is the only way to mitigate the risk of physical harm, sexual abuse and psychological harm.
The report of paediatrician Dr F dated 11 August 2020 in relation to the child states, inter alia, that in discussion with the mother he found the child to be an excessively shy boy with aggressive behaviour, tantrums, immature behaviour, he does not play well and does not like to share his toys, he is a fussy eater who prefers to take sweet treats and junk food. He has long-standing sleep difficulties with often interrupted sleep when he wakes up to play on his electronic devices. He goes to bed at about 8:30 PM and wakes around 4 AM to play on his games. The child’s mother did not find any disciplining strategy works with the child. The child has just started kindergarten. His teachers are concerned about his learning as he is far behind his peers. They have already enrolled him in a learning support program. In the doctor’s rooms the child was non-verbal with him, but speaking in short sentences with the mother. He was oppositional and hyperactive. He was playing well with his older brother. He maintained eye to eye contact. As a first-line support, the doctor recommended the family to contact Z Support Services for PPP and behavioural support. The child needs ADOS assessment on one of his follow-up appointments. The doctor provided the family with Suburb AB phone number to help with assessment and link with NDIS funded services. On the follow-up at six years of age, the doctor will consider prescribing the child with a trial of medication for ADHD.
The child’s semester 1, kindergarten, 2020 school report states:
[X] has made measured progress since starting Kindergarten. During the weeks of remote learning there was pleasing evidence of his participation in the home learning tasks. [X] displays highly anxious behaviour which results in unsettled and defiant behaviour in class, although, usually improved throughout the day. He is reluctant to participate in learning activities and requires significant teacher support for most learning tasks. [X] is developing his social skills and strategies to assist him in dealing with a variety of social situations. He is learning to work cooperatively with others. [X] needs to be reminded to look after his belongings.by putting them back in his school bag.
The child’s semester one, 2022 school report from R School states, inter alia, under the heading, “Attitudes to Learning”, that he rarely follow school rules, shows initiative or works cooperatively in group situations. Under the heading “Respectful Learner”, it states that the child sometimes is respectful to the class teacher and sometimes communicates respectfully with peers. It states that he rarely is respectful towards all teachers. Under the heading Active learner, it states that the child rarely willingly participates in all activities or uses feedback to improve his work. It states that sometimes the child asks for help when needed. Under the heading “General Comment”, the report states, inter alia, that the child is an enthusiastic and lively member of the class who enjoys participating in construction, imaginative and sensory experiences. He is developing friendships with his classmates and continues to improve his ability to regulate his emotions and respond appropriately to challenging and new situations. It states that the child has made pleasing progress cooperating in small group situations with his peers. At times, he demonstrates a willingness to engage with Creative Arts learning opportunities including dance and music lessons. Moving forward, the child will continue to be supported in developing positive learning habits and social-emotional skills.
Oral evidence of the father
The Court does not propose to set out the entirety of the father’s oral evidence.
The father stated he works as a factory worker.
The father stated he does not know what Attention Deficit Hyperactivity Disorder is. Nor does he know what Oppositional Defiance Disorder is. He has not previously looked into these disorders and has not made enquiries about them.
The father does not use the Internet although he has Internet access.
The father last spoke with the mother in 2019.
The father left school at the start of Year 9. He stated that between 1996 and the present he has been largely unemployed because he is lazy. He then stated that during that period he has been employed for at least six years. He stated that over the last eight years he has carried out factory work on and off. He currently works in a factory and the work roster provides that in the first week he works 15.5 hours and in the second week 7.5 hours.
The father stated that finances was an issue in the parties’ relationship and that money was tight.
The father stated that he does not read and write well. He stated that he had not previously read the ADVO against him for the protection of D.
The father stated that he was shown the Single Expert Report by his lawyers. He stated that he read it with the paternal grandmother. He stated he understood its contents. He later stated that the paternal grandmother read through the Single Expert Report with him.
The father was asked whether he had ever been told that he had an inability to control his emotions such as anger, to which the father replied in the affirmative.
The father did not accept that if the child was to spend time with him that that might unsettle D or the mother.
The father denied sexually touching or abusing D. He stated that D did not slap him and he did not bite her on the neck. He stated that he had previously wrestled with all three children together, being the child, D, and G.
As to the photo of D tendered in evidence at the hearing of the father’s criminal charges relating to D, the father stated that D’s bite looked like an insect bite.
The father stated he did drink alcohol; he stated he drinks five cans of mixed alcoholic drinks once a fortnight.
The father stated that he had a little temper. He stated he does not like being treated differently or bullied.
The father denied verbally abusing the mother. He stated that the parties used to argue over money and when the mother yelled at him he would yell back.
The father stated that he did previously yell at the children when they were naughty. He denied yelling at the child in December 2019.
The father stated that he believed the mother put D up to her allegations of sexual touching against him so as to stop the father seeing the child.
The father’s attention was drawn to the Single Expert Report writer’s view that should the child spend time with the father in accordance with the father’s proposal that such time would create destabilisation for the child, the mother and maternal siblings, to which the father disagreed.
The parties separated on 10 January 2020.
It was put to the father that the mother alleges that she saw the father and his child H running over her lawn, to which the father replied that that was her opinion.
The father stated that the paternal grandmother used to have a great relationship with the children.
The father agreed that he was unprepared to deal with behaviour by the child that involved a threat to self-harm or kill himself.
The father stated that all three children (the child, D, and G) were all close prior to the separation.
The father did not accept that if the child was to spend time with him that that could be distressing for D. He stated that he thought D would be fine with the child spending time with him.
The father stated that when he is not working in employment, he sits at home watching TV or talking to the paternal grandmother. Presently he has no outside interests.
Oral evidence of the mother
The Court does not propose to set out the entirety of the mother’s oral evidence.
The mother stated that she was now prepared to concede that the child could speak to the father by audio-visual means or speak to the father by telephone. A short time later she stated that the child has ADHD, he is very hyperactive and doesn’t sit still for very long and that he would get bored with speaking to the father through these means.
The mother stated that up to the parties’ separation the child had a good relationship with the father.
The mother stated that she did not recall saying that the father could not have access to the child’s medical records. She stated that she had never said that the father cannot see the child’s school reports.
The mother stated that up until separation the father had a close relationship with the child.
The mother agreed that during the parties’ relationship the father was not an absent parent.
The mother agreed that she had experienced difficulties in caring for both the child and G.
The mother stated that sometimes the father, when he was at home, assisted in caring for the child and G. She stated that she did most of the cooking.
The mother stated the child was now in Year 3. Medication had been trialled for the child over the last three years. The child was now on a trial of Ritalin and it has somewhat helped him.
The mother stated that sometimes she has a temper. She denied hitting D when in temper. She had previously smacked D on the bottom when she was younger and naughty.
The mother agreed that the father did not “often” make threats of violence against her but he did threaten her.
The mother stated that the father would yell at the children every day. She denied yelling at the children frequently.
The mother stated that D had told her on 25 December 2019 that she had been bitten on the neck.
In relation to the child spending some time with the father at the AC Shopping Centre on 24 January 2020, the mother stated that the child told her that he did not want the father to go. The mother had then said to the child that if he kept on going on like that he would not see the father for a while; the mother stated that the child, then aged five years, would not have understood what this meant. The mother denied saying to the child that he would not see the father again.
It was put to the mother that her text message response to the father on 27 January 2020, after the father had asked to see the children again, stating that the father could see the children when mediation was organised and he had paid some money, was unreasonable. The mother disagreed. She had stated that as far as mediation was concerned the father needed to do it “by the book”.
The mother agreed that there was no prescription medicines for the child as at separation.
The mother stated the child was presently ingesting Ritalin three times a day. He had been taking such medication for about the last month and there was no real change in his behaviour. A short time later she stated that during the day the child is pretty quiet but at night time he will not go to bed. She later clarified this statement by stating that some nights the child can get to sleep but on other nights he cannot.
The mother was asked to describe the child’s behaviour or conditions which had caused him to take medications. The mother responded by stating that, for example, the child had experienced tantrums, nightmares, bedwetting, behavioural problems, problems at school, anxiety, crying, and not being able to make friends at school.
The mother confirmed that Dr F, paediatrician, and paediatric GP, Dr B, had assessed to the child as having symptoms of ADHD. The child had seen the latter Dr three or four times.
The mother stated she has had no training for parenting children with ADHD or ODD.
The mother stated that the child does play sport at school, soccer.
The mother was questioned as to paragraph 49 of her Affidavit in which she stated that the child has made considerable progress since not spending time with the father. The mother stated, in this context, that the child has not been watching scary movies, his nightmares have died down a lot, he is a lot more relaxed, and he is not being yelled at.
The mother told the Court that yelling at the child or arguing with him is not helpful for the child.
The mother stated the child was still wetting his bed.
The mother stated that the father had previously taken the child to a doctor’s appointment, prior to the parties’ separation.
The mother stated that the child does not have access to electronic devices on school nights but only on weekends. He has a routine.
The mother denied hitting D with a hairbrush. She stated that when the children were little she disciplined them with a wooden spoon on the bottom.
The mother stated that the child has not had an autism assessment. The paediatrician had stated that the child needed a brain scan for an autism assessment. The mother stated that she did not think the child had autism.
The mother was asked how she disciplines the child. In response she stated that she does not shout at the child. She gives the child two options: the child does the requested task now or during his device time on weekends.
The mother stated her belief that the child would not calm down if spending time with the father.
The mother was cross-examined by the ICL. She agreed that in the past there were times when she struggled parenting the children. She stated that there had been an improvement in her parenting of the children within the last six months. In this context, the mother stated that she is calmer with the children, she gives the child and G options, and D is a little bit difficult as a teenager. She stated that she and the children compromise and they get a good rapport going. The mother stated she has not received professional assistance in relation to her parenting of the children, and she has not yet done any parenting courses. She stated that the above strategies she has adopted herself. The mother stated that she would be prepared to undertake professional parenting courses and they would assist her.
The mother stated that she was still studying at the Trade College and that she attends classes two days per week. She stated she had nearly finished the course. She wants to work in the trades industry. She stated that she will obtain a Certificate III in a few months.
The mother stated she was presently working in public relations at different venues and that she works in the days that she was not attending classes. She does not work on weekends.
She stated that the members of her current household are her sister and her daughter, aged 19 years (and that young adult is looking for work), and the children. She stated that her sister works in a carer role but not full-time. The mother stated that prospectively she would like to live in a home with the children and herself. The mother stated that she wants to obtain employment in about six months time.
The mother denied putting D up to make complaints of sexual touching and biting against the father.
The mother stated she had no doubt in her mind relating to D’s complaints against the father of sexual touching and biting. She stated that she did not believe that D made those complaints up or that some third person put her up to it. The mother stated that she believes D.
As to the mother’s proposal that the child spend no time with the father, she stated that her proposal was partly based on her belief relating to D’s complaints against the father but just what was best for the child.
The mother confirmed that should the child spend time with the father she would find her capacity to manage that time difficult. She stated that if the child was to spend time with the father it would create significant instability in the family home. She stated that if the child spent time with the father there would be an impact on the child’s relationship with his siblings.
The mother stated that D does provide some stability and support for the child. She gave examples that D teaches the child things and she was there for the child if he was not feeling well. She stated that D was a sensitive and caring person.
The mother stated that if the child spent time with the father it would be distressing for D. The mother explained this statement by stating that when D told the mother about the father’s alleged sexual touching of her she was very emotional, with crying, and her schooling, mental health and sleep deteriorated. The mother stated that at one stage D was cutting herself and talking to a counsellor. The mother stated that D’s symptoms have been displayed for years although they are now less frequent. The mother stated that D’s sleeping is the main thing. D works at a food shop which she enjoys and she keeps busy. She has friends.
The mother stated that if the court made the father’s proposed Orders she would find it distressing. Explaining, she stated that the child’s routine would be detrimentally affected and there would be a continuous cycle of getting the child back to where he was (after having spent time with the father). She agreed that managing her household would be difficult if the child was spending time with the father. She stated that the improvements that she had made with the child would go backwards if he was spending time with the father. She stated that it was possible that she would be struggling more than she could manage if the child was spending time with the father.
In relation to the mother’s previous oral evidence that the child might have telephone time with the father, the mother stated that she had not really thought about how it would work. She stated that the problems she had identified with the child spending face-to-face time with the father could be seen if having telephone time with the father. In this regard the mother stated that the child has limited ability to sit down and talk, and that the most the child could engage with FaceTime would be for five minutes.
The mother was referred to paragraph 61 of the Single Expert Report and stated that at the time of the Single Expert Report interviews, about one year ago, she had thought that the child might benefit from attending a boarding school because he needs discipline but she is now not of that view. The mother stated that at the time of the Single Expert Report interviews the child’s issues were overwhelming but now they have cooled down.
Affidavit and oral evidence of paternal grandmother
The Court does not propose to set out the entirety of such evidence.
The paternal grandmother stated that she did not believe that the father had bitten D (the subject of the father’s criminal conviction for assault occasioning actual bodily harm).
The paternal grandmother stated that she is presently not employed. She stated she has a back problem having had a spinal fusion about 15 to 20 years ago. She stated she cannot lift in excess of 5 kg. She stated it was very unlikely that she would return to work. She is able to drive. She would be able to assist with changeovers if the child was to spend time with the father.
The paternal grandmother stated that post the parties’ separation she has had no communication with the mother; her relationship with the mother is non-existent.
The Single Expert Report
The Single Expert Report writer was Ms C, forensic and clinical psychologist, and her report is dated 7 April 2022.
The Court does not propose to set out the entirety of the contents of the Single Expert Report.
The Single Expert Report writer stated that she had interviewed the family in March and April 2022. She had certain phone calls with third parties also in April 2022 and had reviewed documents set out in the ICL’s letter of instruction dated 31 January 2022.
The Single Expert Report writer under the heading “Family/Relationship History provided by Ms Daffney and Mr Fairfield” stated:
19.According to [Mr Fairfield], the relationship deteriorated when he “wasn’t earning enough money”. He said the majority of the parties’ arguments were about money. He said [Ms Daffney] worked one day per week and a [venue] and as a [hospitality worker] two days per week. He said that “money was very tight” and it reached a point where he “was afraid to speak if it had something to do with bills, money”. He was worried about arguing in front of the children and said that sometimes [Ms Daffney] was so angry, he left the house with the children. [Mr Fairfield] said when she was angry, [Ms Daffney] said “nasty words” such as that he was “not a man, not a good dad, can’t provide for [his] family”. He denied any physical violence by her, rather that his experience was of her belittling him in front of the children. …
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22.… [Ms Daffney] said she felt she was “walking on eggshells” as she never knew what mood [Mr Fairfield] would be in, or when he would “explode”. She said that when they did argue, he would “just walk out” rather than take steps to attempt to resolve any disagreements. However, she noted that he tended to “walk away, but after he’d already blown up”.
23.According to [Ms Daffney], [Mr Fairfield] would “sometimes blow up at the kids as well”. She said that [G] has described a time that [Mr Fairfield] picked him up from the car and threw them on the lounge (this is referred to in [G]’s police statement, dated 12/03/2020).
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28.… [Ms Daffney] alleged that when [Mr Fairfield] was [X]’s primary carer, she would sometimes return home from work to find that [X] had faeces in his nappy and had not been changed all day. She said that when [Mr Fairfield] left the family home, she had to toilet train [X], which she thought [Mr Fairfield] should have done as [X]’s primary carer. [Ms Daffney] said she was working almost every day at that point.
The Single Expert Report writer under the heading “Allegations of sexual abuse of D” stated:
40.My impression of the transcript of the interview with [D] is that her account was consistent and age-appropriate. She described a number of occasions in which [Mr Fairfield] had allegedly sexually abused her, and while she could not particularise the dates and times of these incidents, each incident that she described followed a particular pattern that she was able to articulate. While I understand His Honour’s reasoning for the not guilty finding in relation to the sexual assault, I am concerned that at the least, [Mr Fairfield]’s conduct represents a clear breach of boundaries in relation to [D]’s personal space, a failure to respect her boundaries as she expressed them to him (telling him that she did not like what he was doing), and that if she had not disclosed to her mother, that he may have progressed his conduct to more intrusive sexual abuse. [Ms Daffney]’s report of [Mr Fairfield] accessing pornography after allegedly abusing [D] heightens my concern. Overall, my impression from the documentation, report by [Ms Daffney], and my interview with [D] (detailed below) is that it is more likely than not that [Mr Fairfield] sexually abused [D].
The mother was interviewed.
The Single Expert Report writer under the heading “Presentation at Interview” stated:
42.… My impression was that [Ms Daffney] was overwhelmed but also had limited problem-solving capacity for dealing with issues that arose. Her presentation at the in-person assessment session was consistent with her presentation by telehealth.
The Single Expert Report writer under the heading “Position in relation to the Current Court Proceedings” stated:
43.[Ms Daffney] advised that she wants [X] to reside with her and not spend any time with his father, given [Mr Fairfield]’s alleged sexual abuse of [D]. She further believes that [Mr Fairfield] has no capacity to appropriately manage [X]’s constellation of challenging behaviours and that any time [X] spends with his father would “undo all the work [[Ms Daffney]has] done” with [X]. [Ms Daffney] agreed that supervised time could manage such difficulties, but did not appear to have considered this as a meaningful possibility.
The Single Expert Report writer under the heading “Background Information” stated:
46.[Ms Daffney] described generally stable educational experiences except for a period in high school when she went to live with her aunt for a period. She thought this was due to her minor misbehaviour at home in adolescence, and her mother thought this would be a better environment for her. [Ms Daffney] said that she did not fit in at the new school and was happy to return to her old school. She completed Year 10 and has attained a number of Certificates since leaving school. [Ms Daffney] has a varied employment history and has worked in hospitality and customer service for longer than a decade. She advised that she has consistently worked part-time, other than time off when the children were babies. She currently works three to five days per week. She aims to complete a trades course and run her own business in future.
The Single Expert Report writer under the heading “Parenting assessment” stated:
50.[Ms Daffney] reported no developmental, behavioural, or psychological concerns for [D] or [G] prior to [D]’s alleged experience of sexual abuse. [G] is in Year 4 and reportedly doing well both academically and socially. [D] was reportedly doing well, but since the allegations of abuse, she has had academic difficulties. [Ms Daffney] advised that [D] has also begun vaping, which she reportedly told her mother was “due to the stress of court”. I note that [Ms Daffney] smokes cigarettes, so [D]’s behaviour may be impacted by modelling by her mother in this regard. [D] is currently in Year 9. She misses school days due to anxiety and physical issues associated with her menstrual cycle. [Ms Daffney] advised that [D] began self-harming by cutting after the allegations of abuse. [D] engaged in counselling with [AD Centre] (sexual assault service) for approximately two years. She has recently been approved for “DV counselling”, and has expressed interest in pursuing this, although she has been taking a break from counselling the past few months. [Ms Daffney] does not believe that [AD Centre] remains available to [D]. [G] has never received any therapeutic support.
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52. [Ms Daffney] said that she noticed that [X] had behavioural issues when he was at day care. He was reportedly biting and doing “naughty little things”. However, [Ms Daffney] attributed this to “the terrible twos”. When he started Kindergarten in 2020, however, she noticed that he had learning difficulties. [Ms Daffney] said that [Mr Fairfield] had left the family and she had more responsibility for [X]’s care, whereas [Mr Fairfield] had previously spent more time with him. She said that she noticed it took [X] a long time to do certain tasks, he cried often, his “whinging would turn into a nightmare”. She said she struggled to understand “why it was so hard for him to do a simple thing”. [Ms Daffney] said that she took [X] to a paediatrician and has sought support through the school. She said that [X] had a counsellor who attended his school, but during the Covid lockdown this changed, and she is not sure whether this is still occurring. I asked who organised this and [Ms Daffney] did not know.
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54.According to [Ms Daffney], [X] has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Oppositional Defiant Disorder (ODD), but she has not been provided with documentation confirming this. …
55.The subpoenaed notes from [Dr F], Consultant Paediatrician, contain two reports (dated 11/08/2020 and 10/11/2020) which do not confirm any diagnoses for [X]. At the second appointment, on 10/11/2020, [Dr F] prescribed medication for ADHD, although he indicated the need for ongoing assessment in relation to ADHD. At the third appointment on 5/01/2021, [Dr F] noted that [X] had not been taking medication as prescribed, he had started wearing nappies to manage bedwetting, which was not recommended, and neither [Ms Daffney] nor [X]’s teachers had completed the ADHD assessment questionnaires. The remainder of the notes available refer to medication changes and note limited observed changes in [X]’s behaviour.
56.The [Q School] notes contain a report by a Speech Pathologist, dated 27/07/2020, which indicates that [X] would benefit from some speech pathology support, but the overriding issue appeared to be anxiety. The [Q School] records refer consistently to challenging behaviours by [X] in Kindergarten, along with queries regarding anxiety, ASD, and defiance.
57.[Ms Daffney] described [X] as a “lost little child”, becoming teary when reflecting on his range of difficulties. She noted that he has tried numerous medications to manage ADHD over the past two years, but nothing has been effective. She said that he has high anxiety. …
58.[Ms Daffney] spoke positively about being a parent. She said she loves spending time with her children. She described her role as a parent as to guide and nurture her children. [Ms Daffney] described [D] and [G] positively. She said [D] loves dancing and working in her new job. She said [D] can be “a bit of a drama queen at times, but she does have a very lovely heart, she’s very considerate”. She noted that despite all she has been through, she can still laugh and “see the better side of the world”. She described [G] as quiet on first meeting, but once he is comfortable, he is funny. She described him as thoughtful and loving, and focused on his family. [Ms Daffney]’s description of [X] was less positive. She noted that he is “quite independent”, that he likes to laugh and cuddle with his family sometimes, but paused and said: “I don’t know how to take him at times. I don’t know what’s going on his head sometimes”. She then spoke about the difficulties she has managing his behaviour, and reflected on him being “scared of the smallest things”. He reportedly wets the bed at times. My impression was that [Ms Daffney] feels overwhelmed at present with managing [X]’s behaviour and she agreed with this assessment. It appears that [Ms Daffney]’s focus on [X]’s challenging behaviour is currently precluding her from enjoying her relationship and time with him.
59.[Ms Daffney] said that she has a good bond with each of her children, although each bond is slightly different. She thinks she spends equal time with each of the children and reassures them that she loves them equally. She noted that her bond with [D] is possibly stronger than with the boys, but attributed this to [D] being older, and them having had more time together because of her age. [Ms Daffney] reported no involvement with DCJ and she has not participated in any parenting programs.
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62.[Ms Daffney] outlined appropriate routines for the children. She noted that she has worked hard on routines with her mother and sister so that the children understand the routine and are prepared for the day. [Ms Daffney] said that when [Mr Fairfield] lived with the family, she would often have the children in bed before he got home, but that he came home late from work and woke them, so he would have to resettle them. [Ms Daffney] said that the children do not use devices on school days, but they can watch television after dinner. They also have dessert at times, although she said that she has had to make changes to the dessert to manage [X]’s behaviour. Previously, the children could have chocolate or chips, along with apple juice, cordial or Coke Zero. Now, they can have fruit and water, although [Ms Daffney] tries to limit [X]’s liquid intake after dinner so he does not wet the bed. She noted that she is trying to limit his sugar and sweets in the evenings due to his ADHD, however, her description of his previous evening sugar intake is of concern given his young age and the associated health impacts, regardless of his mental health functioning. [Ms Daffney] said the boys go to bed around 9pm and [D] is normally in bed at 10pm. [Ms Daffney] expressed her concern that if [Mr Fairfield] were to have time with [X], he would negatively impact the routine she has implemented with [X].
63.[Ms Daffney] said that [Mr Fairfield] is important in [X]’s life, as he “needs a father-figure in his life”, but she is concerned that the negative impacts on [X] of having time with his father would outweigh any positive effects. [Ms Daffney] believes that [X] having time with his father would negatively impact [D] in particular, although she suggested that both [D] and [G] would probably ignore the fact that [X] was seeing his father. She noted that neither [D] nor [G] mention [Mr Fairfield], and neither does [X]. However, she added: “I guess I don’t ask him how he’s feeling”. [Ms Daffney] acknowledged that it is “not fair” that [X] has no contact with his extended paternal family, but she added that they have not contacted her to seek time with [X]. She said if they did ask to see [X], she would have to think about this and how to manage it given that she could not take [D] and [G]. She said [X] has not asked about his extended family members, since saying that he did not want to see his paternal grandmother because she is “scary”. [Ms Daffney] said she would not trust [Mr Fairfield]’s mother to spend unsupervised time with [X] as she worries she would take him to see [Mr Fairfield].
The Single Expert Report writer under the heading “Psychological Assessment” stated:
64.[Ms Daffney] denied any concerns about her psychological functioning. She reported periods of significant stress, but her account did not indicate that she developed mood disorders in response to these. She noted that since moving in with her sister, the whole family feels “so much happier, like a weight has lifted”. [Ms Daffney] acknowledged that she tends to “overthink a lot” but she generally hides her emotions “with laughter”. She said her overthinking can be about “the smallest thing of what to have for dinner”, or thinking about what somebody has said and how they said it. She agreed with my suggestion that she presents as somewhat anxious. However, she denied physical symptoms associated with her anxiety, and her report did not suggest that her anxiety is at a clinical level. [Ms Daffney] said she copes with stress and distress by addressing the issue, talking to someone, or listening to music to distract herself.
The father was interviewed.
The Single Expert Report writer under the heading “Presentation at Interview” stated:
66.[Mr Fairfield] attended promptly via videolink. He advised that his mother had set him up on the computer as he has limited technological skills. … His speech and thought processes appeared normative. He was particularly focused on practical issues and his responses tended to be superficial, even with prompting.
The Single Expert Report writer under the heading “Background Information” stated:
70.[Mr Fairfield] attended three primary schools (due to his family’s relocations) and one high school. He reportedly left school in Year 9 because a teacher called him stupid. He said his younger brother had been born and he asked his mother if he could leave school to take care of the baby, so she could work. [Mr Fairfield] explained that this brother was in fact adopted from a family member and not his mother’s biological child. [Mr Fairfield] has worked in a number of unskilled roles, with lengthy periods of unemployment. He is currently employed but has only recently started obtaining shifts again as he had previously refused to be vaccinated against Covid-19, stating: “I didn’t believe I should be forced to take something I didn’t want to take”. While he has started earning an income again, he described his current financial situation as “terrible”, noting that he intends to seek more employment once he has had his second vaccine. [Mr Fairfield] advised he would like to find full-time employment, adding: “I’m 39 years old, I need to get my own place, something for my children to be able to come to, to have their own room”.
71.… [Mr Fairfield] advised that he has previously been prescribed medication to manage high cholesterol, but his prescription expired, and he does not currently have a GP. ...
The Single Expert Report writer under the heading “Parenting assessment” stated:
73.… [Mr Fairfield] is of the view that [D] does not like him, although he has formed this view based on the allegations, not because of any difficulties in their relationship. He thought he had a good relationship with all children. He suggested that if he were to have time with [X], this would be particularly hard on [G].
75.… [Mr Fairfield] identified no developmental concerns for [G]. He described him as a “happy kid, pretty cool, level-headed”. [Mr Fairfield] said the children got along well with each other, including with [H].
76.… He believes [X] has met all of his developmental milestones. [Mr Fairfield] said that [X] was attending daycare when he last resided with him, and that no concerns had been raised regarding [X]’s development. He was aware that they were recommending holding him back a year before starting school, reportedly due to social skills. [Mr Fairfield] is aware that [X] has been diagnosed with ADHD and ASD, but he was not aware of indicators of these disorders when he was living with [X]. He noted that [X] was similar to [G] in terms of behaviour and focus. He said [X] was able to sit and focus on things that he was interested in.
77.… He recalled that [X] was a child who “liked to get right in there, hang out with his brother and sister”. He recalled a positive relationship with [X], describing him as: “like my little Siamese twin, everywhere I went, he was stuck to me”. He said his relationship with [G] was similar.
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79.… [Mr Fairfield] said his primary strength as a parent is that he was “always there for the kids” in terms of practical needs, but also offering emotional support. In terms of weaknesses, he spoke about his inability to provide financial and material stability.
80.… He said he typically removed privileges as discipline, or sent them to their room. [Mr Fairfield] said [X] was sent to his room more often than [G], but that both boys “were pretty good most of the time”. He acknowledged giving [X] “a light tap” when he broke an expensive television, which reflected his own upbringing.
81.[Mr Fairfield] acknowledged that the children had no routine when he was living with the family. He said that there was conflict between him and [Ms Daffney] in relation to “which parent was going to tell the kids they had to go to bed”. He added: “I think we both weren’t capable of yelling at the kids to go to bed”. … [Mr Fairfield] said that if [X] was spending time with him on weekends, they would spend time socialising and engaging in fun activities. He noted that he has not seen [X] in two years, so he would likely “spoil” him. He suggested an appropriate bedtime for [X] is 9:30-10pm on a weekend. …
82.… [Mr Fairfield] suggested that [Ms Daffney] is a good mother overall and he has no significant concerns about her parenting. [Mr Fairfield] believes that [X] is being negatively impacted by his lack of contact with him, but was not sure how. …
The Single Expert Report writer under the heading “Psychological Assessment” stated:
83.… [Mr Fairfield] did not endorse symptoms suggestive of anxiety disorders. He reported coping skills that primarily revolved around distraction, noting that he is not a person who tends to talk about his emotions. This fit with my impression of [Mr Fairfield] in the interview.
The Single Expert Report writer stated:
102.Risk summary: Taking into account [Mr Fairfield]’s risk and protective factors, and on the assumption that the abuse occurred, his overall level of risk of sexual recidivism is currently low. However, this does not take into account the potential psychological harm that may be caused to [D] if [Mr Fairfield] were to have contact with [X], or the impact on the sibling relationship. It is likely that these risks in fact outweigh the risk of sexual harm.
The Single Expert Report writer under the heading “Observation of Contact between X, G and D with their mother” stated:
106.Overall, the time in the observation room was starkly different from what I had observed of [Ms Daffney]’s conduct towards her children when not being formally observed. While it was apparent that [Ms Daffney] was playful and the children enjoyed this, the overriding experience of the family’s attendance at the observation was one in which [Ms Daffney] has difficulty managing her own anxiety such that she speaks harshly towards her children. She did not offer the children direction or appropriate containment during the observation. [Ms Daffney]’s failure to bring any food or supplies for the children was of some concern, as was her expressed frustration towards them such that she held them responsible for not getting away on time. The observation reinforced my impression after my interview with [Ms Daffney], which is that she is overwhelmed with parenting and lacks access to positive parenting strategies.
The Single Expert Report writer under the heading “Interviews with the children” stated:
107.… At interview, [D] impressed as an insightful and open girl. … [D] spoke insightfully about the pressures her mother is currently facing, and has faced throughout [D]’s life. [D] apparently assumes a parental role towards [X] at points, as do her cousin and aunt.
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110.… [G] recalled positive and negative aspects of [Mr Fairfield], describing him as a “kind of fun and sometimes yelling dad”.
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113.Summary: My impression from the interviews with the children is that there is no set routine for the children at home, that [D] assumes a parental role in relation to her younger brothers, and that [Ms Daffney] is currently overwhelmed and struggling to cope. Overall, the bulk of information from my assessment, observations, review of documentation and collateral information suggests that [Ms Daffney] in fact has struggled for a long time to manage her behaviour and becomes dysregulated, resulting in verbally and physically aggressive outbursts towards the children. It appears that [Mr Fairfield] engaged in similarly verbally and physically aggressive conduct towards the children, although he also offered some protection and fun.
The teacher (at the child’s current school) advised the Single Expert Report writer that X presents with a range of complex challenges that vary daily. The Single Expert Report writer stated:
118.… He is socially disengaged and his play is developmentally below his peers. He is oppositional when asked to complete activities, even minor tasks such as “sit with the class to watch a video”. The teacher has trialled some strategies to help manage [X]’s behaviour, but reported that these are inconsistent in their effectiveness. She reported that instructions need to be short and, the task needs to be focused as [X] has a low attention span. He requires a lot of praise. I note that the teacher’s description of how [X] responds best to instructions is consistent with children with ADHD. The teacher advised that [X] leaves the classroom at points and appears to have difficulty understanding the difference between playtime and learning time. She said it is sometimes difficult to ascertain if [X]’s behaviours are a function of a lack of understanding or oppositional behaviour. She expressed significant concern about [X]’s mental health, advising that in the last few weeks he has begun escalating quite quickly, becoming highly distressed, making suicidal comments (“I just want to die”, “I just want to be dead now”, “I want to kill myself”), and engaging in parasuicidal or self-harming behaviour (such as putting his hands around his neck). This is distressing for the other children. However, the Assistant Principal noted that when the school contacted [Ms Daffney] about this behaviour after an incident the day prior to our discussion, [Ms Daffney] became frustrated and said she did not know how to manage him at home. As such, the school made arrangements to keep [X] at school.
119.[X] has had two sessions with his [E Mental Health] clinician, [Ms AE], but the staff were of the understanding that these sessions were due to expire. The school has developed a Behaviour Management Plan that was due to be shared with [Ms Daffney] so she could offer consistency at home, although they were waiting information from [Ms AE] regarding other techniques that may assist. The Assistant Principal noted that [Ms AE] had told her that [X] was not engaging in sessions in a meaningful way. The school has also developed an Individual Education Plan which contains academic and social goals for [X] that are targeted to his capacity. A strong feature of this is a number of staff members working to build supportive relationships with [X].
…
122.… Ms AE (of [E Mental Health Service]) said she is currently attempting to arrange ongoing support for [X] with a paediatrician and a Child Mental Health service, although she had limited information about these referrals. She said she is waiting for [Ms Daffney] to provide signed consent to commence this process. She is also hoping to refer [Ms Daffney] to counselling for DV and a support group for parents of children with ADHD. [Ms AE] advised that her service has had no child protection concerns regarding the family. My impression, however, is that the service’s engagement has been limited and likely ineffective given that [X] is a child with complex needs who is unlikely to make meaningful progress in individual sessions without parental involvement alongside a multidisciplinary treating team.
The Single Expert Report writer, addressing the terms of reference of the Report stated:
123.…
a)The benefits of children having relationships with their parents is largely dependent on those parents being able to offer a meaningful and rewarding relationship to their children. This includes parents being able to prioritise their children’s needs, and to support their children’s developing sense of self and sense of belonging. Broadly speaking, the more loving, protective adults a child has in their life, the greater their chances of developing a stable, positive sense of self, and long-term psychological health.
[Ms Daffney] is currently overwhelmed and under-supported and she is struggling with self-regulation. … [Ms Daffney] has struggled to manage [X]’s challenging behaviours. Despite this, [Ms Daffney] is [X]’s primary caregiver and while I hold concerns about her parenting capacity, these are not at a level that currently outweighs the benefits of [X] having a relationship with his mother. There would be significant risks to [X] of a disruption to his relationship with his mother, particularly in terms of his psychological functioning and sense of self.
It appears that [Mr Fairfield] has also demonstrated dysregulation in the past as a parent. The allegations of abuse of [D] suggest that [Mr Fairfield] has failed to prioritise [D]’s needs above his own, and this raises concern that he may do the same in his relationship with [X]. While [Mr Fairfield] spoke appropriately about [X] and it is clear that he misses his son, I hold concern that the risks of [Mr Fairfield] having a relationship with [X] currently outweigh the benefits. If [X] were to have time with his father, this would create significant instability in the family home, particularly in relation to (a) [Ms Daffney]’s capacity to manage that time and any associated behavioural changes in [X] and (b) the potential impact on [X]’s relationship with his siblings. …
…
d)My views regarding the abuse allegations have been outlined in the body of this report. It is my impression that [Mr Fairfield] likely did sexually abuse [D]. I have conducted a risk assessment detailed above and note that while [Mr Fairfield] falls within a low-risk category for sexual recidivism, this does not factor in the risk of psychological harm that may be caused to the children if [X] were to have contact with his father. I am particularly concerned about the impact on the sibling relationships if [X] were to be spending time with his father. While [Mr Fairfield]’s alleged sexual abuse of [D] is a relevant factor in this matter, it is not the sole factor that I place weight on in my determination that time with his father is currently not in [X]’s best interests.
e)… I suspect that [X] would like to have a relationship with his father based solely on the information from [D] [G] and [D]. However, for this to occur, [X] and the family will require significant support and this is likely to be a long-term consideration.
f)… [X]’s needs appear to be met by [D] and the other adults in the household as well as by his mother.
The sibling relationship is of particular importance in this matter. Both [G] and [X] view [Mr Fairfield] as their father. [D] has viewed him as a father-figure. Both [Mr Fairfield] and [Ms Daffney] have been inconsistent in their parenting capacity, and it is likely that [D] [D]has offered significant stability to [X] since his birth, and to [G] as well. It is my view that the sibling relationship should be prioritised in this matter in order to support the children’s positive emotional connection with each other, which will provide them with a sense of belonging and associated positive psychological impacts. …
g)[X] has complex needs and while all children require stability and consistency, this is even more important for [X]. A change in his circumstances including separation from his mother would exacerbate his current challenging behaviours and decrease his psychological functioning. A change that included spending time with his father would have significant negative short- and medium-term negative impacts given that his mother does not currently present as able to manage his behaviours. If [X] were to have time with his father, it is expected that his challenging behaviours would become heightened for a period while he experienced a repeated attachment stress in relation to both of his parents. His mother would require a high level of competence in dealing with [X]’s behaviours to support him to cope with such stress. [Ms Daffney] does not have this capacity at present and given [X]’s vulnerabilities, it is not in his best interests to expose him to such increased instability at present. Furthermore, a change of his circumstances to include time with his father would likely impact both [G] and [D], and place additional demands on [Ms Daffney]’s limited resources, as well as potentially negatively impacting the relationship between [X] and his siblings. Again, this would require a high level of competency from [Ms Daffney] to manage any ruptures to the sibling relationship, and she does not currently have this capacity.
h)[X] has complex needs that remain unsupported, despite his schools highlighting the need for appropriate therapeutic support since he commenced Kindergarten in 2020. [Mr Fairfield] has not been exposed to the extent of [X]’s challenging behaviours and so has limited insight into his needs. [Ms Daffney] presents with limited capacity to obtain and maintain appropriate support for X. She has not accessed the support offered by the school. She presents as ineffectual in managing this issue and would benefit from casework support in this regard. Ideally, DCJ would become involved with the family and link them into appropriate supports. I will make recommendations regarding this below.
i)There are no specific cultural considerations in this matter, the more pressing issue is [X]’s psychological functioning and high needs.
j)… [Ms Daffney] is currently overwhelmed and unable to meet [X]’s needs. Her sense of overwhelm appears to be negatively impacting her view of [X] broadly speaking, and as such, she is currently demonstrating a negative attitude towards parenting and the responsibilities of parenthood, particularly as they relate to [X].
k)I hold concerns about (a) the parents’ capacity to communicate respectfully with each other; (b) their capacity to manage their own conduct towards each other and protect the children from this; and (c) the behavioural impacts that spending time with his father would have on [X], and [Ms Daffney]’s capacity to meet the increased demands this would place on her. Regardless of how well [Mr Fairfield] were to manage his time with [X], [X] would likely experience strong emotions in response to seeing his father, and his current behavioural difficulties mean that he has limited resources to manage himself. He would likely demonstrate an increase in dysregulated behaviour in response to either positive or negative emotions. This would impact not only [Ms Daffney], but also [D] and [G], and I suspect would destabilise the family to a point that all three children would be at risk of psychological harm.
l)My impression is that both parents struggle with appropriate self- regulation, which impacts their parenting capacity.
m)[X] has significant emotional, developmental and mental health issues that require addressing. As yet, these have not been appropriately assessed and diagnosed. There are queries in relation to ADHD, ASD, ODD, anxiety, and potentially a developmental or cognitive delay. [X] requires immediate referral to a paediatrician for diagnostic clarification and a treatment plan, which may include (a) medication; (b) psychological intervention; (c) parenting intervention for [Ms Daffney]; (d) holistic family intervention.
…
p)[Mr Fairfield] proposes that [X] spends alternate weekends with him, and blocks of time during school holidays. [Ms Daffney] proposes that [X] spends no time with [Mr Fairfield]. Giving consideration to (a) both parents’ dysregulation and periods of limited parenting capacity; (b) [Mr Fairfield]’s alleged sexual abuse of [D], which I consider likely occurred; and (c) the destabilisation that time with his father would create for [X] and his mother and maternal siblings, it is my view at this point that [Ms Daffney]’s proposal is more likely in [X]’s best interests. …
The father denies biting D. He believes the mother put D up to making untruthful allegations against the father relating to the alleged sexual touching of D.
The father lacks insight into the emotional effects upon D of D believing that the father sexually touched her (in the manner alleged by D to the Local Court). He lacks insight into the emotional effects upon D of having bit her.
In the view of the Court, there is presently an unacceptable risk of physical and emotional harm posed to the child in spending any unsupervised time with the father, for at least the following reasons:
(a)there is a significant risk that the father would be unable to adequately manage the child’s behavioural difficulties including oppositional behaviour. There is a significant risk that the father would use excessive physical discipline and/or verbal abuse including yelling in managing the child’s behavioural difficulties.
The child exhibits symptoms and challenging behaviour consistent with Attention Deficit Hyperactive Disorder (ADHD), Oppositional Defiance Disorder (ODD) and anxiety. These symptoms have been exhibited by the child, inter alia, in the home environment of the mother. The father has no understanding of these disorders including their associated symptoms, with the Court observing that he has not been exposed to the child’s challenging behaviours and so has limited insight into his needs, (whilst the Court recognises that it is possible that the father could, in due course, educate himself in relation to these matters). The child experiences inter alia bed-wetting, and sleep issues.
The father exhibited dysregulated and adverse behaviour during the parties’ relationship, for example, by yelling at the child when the child misbehaved, and biting D, then a child of 12 years, (albeit after D had slapped the father during a wrestling game) and the father has as yet taken no steps to personally address and rehabilitate himself in these respects. The Single Expert Report writer had stated that the father struggled with appropriate self-regulation which impacted his parenting capacity.
(b)there is a significant risk that the mother would be unable to adequately manage parenting the child on the child’s return to her household from having spent time with the father.
The mother’s present capacity to manage the child’s behaviours (who has special and high needs) is presently significantly limited by reason of, inter alia, her own dysregulated behaviour when caring for the child (the Single Expert Report writer had stated that the mother struggled with appropriate self-regulation which impacted her parenting capacity), her present lack of education in relation to parenting skills for a child displaying symptoms of ADHD and ODD, her failure to fully access school support and health professional support for the child’s special needs, the parenting demands placed upon her by D’s own needs, and the mother’s needs to financially support her family.
The mother has struggled post separation in adequately parenting the child by reason of the child’s special and high needs. In this context, the Court notes that over about the past six months the mother has acquired some skills in disciplining the child (e.g. not yelling or arguing with the child, and giving the child options in the context of misbehaviour and complying with household rules) but such acquisition of skills and related health professional support is presently far from complete.
The Single Expert Report writer had stated that the child has significant emotional, developmental and mental health issues that require addressing, and as yet these have not been appropriately assessed and diagnosed. She stated that there are queries in relation to ADHD, ASD, ODD, anxiety, and potentially a developmental or cognitive delay. She stated that the child requires immediate referral to a paediatrician for diagnostic clarification and a treatment plan, which may include medication, psychological intervention, parenting intervention for the mother, and holistic family intervention.
As explained by the Single Expert Report writer, if the child were to have time with the father, on his return to the mother’s household it is expected that his challenging behaviours would become heightened for a period while he experienced a repeated attachment stress in relation to both of his parents. The Single Expert Report writer had stated that the child would likely experience strong emotions in response to seeing the father, and his current behavioural difficulties mean that he has limited resources to manage himself; he would likely demonstrate an increase in dysregulated behaviour in response to either positive or negative emotions. The mother would require a higher level of competence in dealing with the child’s heightened behaviours to support him to cope with such stress including strong emotions, however, the mother’s parenting capacity at present is inadequate in this regard. In these circumstances there is a significant risk the child would experience emotional harm together with adverse emotional impacts upon D and G, with resultant destabilisation of the mother’s family unit.
The child and G view the father as their father. D has viewed the father as a father figure. There is a significant risk that D, believing as she does that the father inappropriately sexually touched her, and observing that she has previously assisted the mother in meeting the needs of the child (and G), would experience adverse emotional reactions in relation to the child spending time with the father. Such adverse reactions may adversely affect the child’s relationship with D, and may adversely affect D assisting the mother in meeting the needs of the child (and G). And further, G may well react adversely to the child spending time with the father and the child’s relationship with G could thereby be adversely affected. With such outcomes, additional demands would be placed on the mother’s present limited parenting capacity (e.g. such demands as the need to manage any ruptures to the child’s relationship with G and D) which she would be unable to meet, with resultant negative impacts upon the child’s emotional state.
(c)by reason of the above matters, should the child spend time with the father, the child’s present stability and consistency would be adversely affected with the significant risk of an exacerbation of his current challenging behaviours and decrease in his psychological functioning.
The Court is of the view that supervised time between the child and the father would not ameliorate the discussed risks in b) and c) above. Furthermore, supervised time on a long-term basis would not enable the child to develop a fulsome and meaningful relationship with the father by reason of its limited nature. And modest unsupervised daytime time between the child and the father would not ameliorate the discussed risks in a)-c) above.
The evidence of the Single Expert Report writer is consistent with the above views of the Court.
The father submitted that it is likely that the child has been missing the father since separation to date and that such fact may well significantly explain the child’s challenging behaviours post separation to date. The father submitted that should the child now begin to spend time with the father it may well transpire that the child’s challenging behaviours will significantly dissipate. In the view of the Court, the evidence before it does not support such a sweeping submission. Whilst it may well be that the child missing the father post separation to date may be a factor related to the child’s challenging behaviours, such factor does not address the gravamen of the medical evidence, the schooling evidence, the mother’s evidence, and the evidence of the Single Expert Report writer, all related to the child post separation having experienced symptomatology consistent with at least ADHD and ODD, and having complex high needs.
The Court recognises that a no time order is a drastic order, and it recognizes the possible grief and other risks posed to the child relating to not re-developing a meaningful relationship with the father, as discussed by the Single Expert Report writer. However the Court refers to its unacceptable risk of harm findings above in relation to the child spending time with the father. The Court is of the view that the risks to the child of redeveloping a relationship with the father currently outweigh the benefits.
The Single Expert Report writer elaborated upon her evidence in the expert report (page 54) as to what needed to occur before she would recommend time between the child and the father giving this evidence:
In the face of the complexities of this family, father and mother and household, you’ve suggested that – well, it has been suggested to you that there could be some therapy, some counselling, and you’ve given evidence just a few minutes ago that it would be unaffordable. But what sort of therapy would be needed in order to address the complex issues that face this family in the mother’s household?---In order for [X] to be able to spend time with his father and for there not to be the – not – for the risks that I’ve articulated to not come to fruition, or to be able to be managed appropriately, we would be talking about a fairly intensive family therapeutic support process whereby [X]’s vulnerabilities were able to be identified, that there would be some diagnostic clarity in terms of what the actual issues are, and that would help in terms of identifying the issue that was previously explored in terms of is medication appropriate or not. That would then give us a guideline in terms of what is needed to help [X] just currently be able to deal on a day to day basis, to offer some guidance for his mother to be able to support him around that. And then once that process – once things had stabilised as much as they could in relation to that process, then it would be looking at either jointly or after a period of time looking at therapeutic support for [D] and [G] as well to explore their relationship with [Mr Fairfield] to be able to offer them an opportunity to identify what their hopes and wishes are for a relationship with him. There would be a process whereby [Ms Daffney] would also engage in a therapeutic process to be able to understand her children’s complex psychological needs, to be able to manage with the competing different needs that each of the children may present with at different points. There would likely be some joint work that would occur between [Ms Daffney] and the three children because one of the primary goals would be around stabilising those relationships before [Mr Fairfield] could then be brought back into the picture. So if everything went along swimmingly, everyone was able to engage, things went well, the relationship between [Ms Daffney] and the children was stable and strong and she was able to deal with all of the things that life throws – throws up in the course of daily living, then consideration will be brought to bringing [Mr Fairfield] into that process. Now, he would also have needed to undergone a process himself beforehand of understanding the children’s needs in terms of the vulnerabilities that [X] particularly presents with and what response is needed in relation to those, but also understanding the psychological impacts for [X], for [D] and for [G] around the separation process, the allegations, the previous criminal proceedings, [D]’s current belief that he sexually abused her and how he’s able to respond to that in a way that’s helpful for her. If he was able to do that, then we would look at bringing everybody together and starting a therapeutic process of reconnection which might involve the children having sessions with him where they could discuss that, where they could look at things they might need to be able to strengthen the relationship and feel safe within that relationship. And I will note that [D] and [G] both spoke to me about points of not feeling safe with [Mr Fairfield], so there – there are significant complex considerations I would be – we would be talking about weekly therapeutic sessions in some variation of individual/group. We would be talking about a number of clinicians needing to be involved, and that could take a process of years to be able to do that in a safe and structured, supported way.
And that’s just not realistic, is it? Not currently unfortunately.
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 its discussion above under the meaningful relationship and need to protect primary considerations. Not only does the child have a meaningful relationship with the mother, but also has a close relationship with D and G. It is important that the child’s relationship with his siblings is not detrimentally affected through potentially spending time with the father and this issue is discussed above by the Single Expert Report writer and by the Court under the need to protect primary consideration.
(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 been making major long-term decisions for the child. Post separation, the father has sought to take such opportunities both prior to and following the commencement of these proceedings.
(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
Both parties maintained the child prior to the separation. The mother has continued to maintain the child post separation to date. The father pays some child support.
(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 discussions above under the need to protect 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
Not applicable.
(f) The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
The Court refers to its discussions above under the need to protect primary consideration in relation to both parents.
The mother is willing to further engage with health professionals in relation to the child’s special needs, and undertake relevant parenting courses. The mother has almost completed a Certificate III Trades course and she intends to obtain employment in this area; this education should be seen in the context of the mother also endeavouring to parent the child and his two siblings.
The father loves the child and would like to redevelop his former relationship with the child and enjoy spending activity time with him.
He has not been exposed to the extent of the child’s challenging behaviours and so has limited insight into his needs. He has so far failed to educate himself in relation to the special needs of the child having had access to the Single Expert Report for about a year and in which the child’s special needs are highlighted. The father’s employment record both during the relationship and post separation to date has been punctuated by significant periods of unemployment with the father informing the Court that laziness was the reason for his unemployment. The father’s high school education was limited having left high school at the beginning of Year 9 and he is not a competent user of the Internet. His spare time is spent watching television and speaking with the paternal grandmother, and presently having no external activities outside his part-time employment as a factory worker in a store.
(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 discussions above under the primary considerations and additional considerations and under section 60CC(3) above. As stated by the Single Expert Report writer, the pressing issue is the child’s psychological functioning and high needs.
(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 Court refers to its discussions above, in particular under the need to protect primary consideration and additional considerations under section 60CC(3) above.
(j) Any family violence involving the child or a member of the child's family
The Court refers to its discussions 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
A provisional ADVO was made against the father on 5 June 2020 protecting D. Following the father having been convicted on 14 April 2021 by the Local Court of an assault occasioning actual bodily harm upon D (biting her on the upper chest near the neck), the Local Court made an ADVO for three years against the father for the protection of D.
(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 Court is of the view that the ICL’s proposed orders would be least likely to lead to the institution of further proceedings in relation to the child, as compared to the father’s proposed orders. In this context, the Court refers to its discussions above under the primary considerations.
m) Any other fact or circumstance that the Court thinks is relevant
Not applicable.
Parental Responsibility
It will be in the best interests of the child that the mother have sole parental responsibility for him.
The Court refers to its discussions above under the meaningful relationship primary consideration. The child’s primary attachment is to the mother; the mother has been his primary carer for at least significant periods during the parties’ relationship and his sole carer since the parties’ separation to date.
Since about February 2020 the child has not spent any time with the father.
The parties have no co-parenting relationship. The prospect of the parties ever developing a positive communicative co-parenting relationship is unlikely, and in this regard the Court refers to the parties’ difficulties in their relationship discussed to some extent above under the need to protect primary consideration.
As discussed above under the need to protect primary consideration, there is an unacceptable risk of harm posed to the child in spending time with the father.
SUMMARY
Evaluating the above discussed relevant considerations under section 60CC of the Act, it will be in the best interests of the Child to make the following final parenting Orders, that:
1.All prior parenting orders shall be discharged.
2.The mother shall have sole parental responsibility for the child X (“X”) born in 2014.
3.X shall live with the mother.
4.The father shall spend no time, and have no contact, with X, save and except for as set out in Order 5 below.
5.The father shall be permitted to send a card and gifts to X each year on his birthday and for Christmas and to facilitate this within 7 days of the date of these orders, the mother shall nominate to the father a postal address for the purpose of receiving these items.
6.Within 7 days of the mother receiving a copy of X’s school report she shall provide a copy of it to the father via post or email.
7.Within 7 days of the mother receiving a Paediatric Report for X she shall provide a copy of it to the father via post or email.
8.In the month of June and December each year the mother shall send to the father by email or post a current photograph of X.
9.Within 7 days of the date of these orders the father shall provide to the mother a nominated postal address and email address for the purpose of receiving the reports and photographs in accordance with Orders 6, 7 and 8.
10.Within 14 days of the date of these orders, the mother shall enrol in and subsequently attend, counselling targeted at improving her psychological function and self-regulation capacity.
11.The mother shall continue to engage X with Dr B (or such other paediatrician or paediatric GP she is referred to in the event that Dr B is no longer available or does not have the requisite expertise to treat X) and shall comply with all recommendations made, including arranging any recommended assessments as soon as practicable and implementing all recommendations in relation to medication and other treatments for X.
12.Leave is granted to the mother to provide a copy of the Single Expert Report of Ms C dated 7 April 2022 to her counsellor.
13.Within 7 days of the date of these orders, the mother shall do all things necessary to enrol in the Triple P Parenting course and thereafter complete the course.
14.Leave be granted for all clinicians working with the family to be given a copy of the Single Expert Report of Ms C dated 7 April 2022.
I certify that the preceding one hundred and ninety-eight (198) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 9 May 2023
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