Fanning and Wilkinson
[2009] FamCA 866
•23 June 2009
FAMILY COURT OF AUSTRALIA
| FANNING & WILKINSON | [2009] FamCA 866 |
| FAMILY LAW – CHILDREN – Whether there is a risk to the child spending time with her father given the father’s past history of violence – Whether there is a risk to the child from the mother’s alleged negligence and abuse of child – Whether the father may spend unsupervised time with the child given the significant obstacle of “handovers” and the inevitable conflict that would arise from such contact between the parties – HELD – Equal shared parental responsibility not possible because of acrimony and antipathy between the parties – Inappropriate for the father to have equal or substantial and significant time because it would not be in the child’s best interests – best interests of the child warrant protection against the antipathetic relationship between the parties and the reduction of possibilities of the child coming into contact with violence and conflict – Proposed that the father, subject to ensuring the necessary pre-conditions for handover, have unsupervised time with the child as set out in the judgment – Injunction imposed against the father from saying “unkind, unpleasant or derogatory things” against the mother – Further submissions required from the parties relating to the issue of handovers – Final Orders to be determined after receipt of further submissions |
| Family Law Act 1975 (Cth) ss 68B(1)(b)(i), 60B, 60CC, 61C, 61DA, 65D, 68B, 91B Children and Young People Act 2008 (ACT) s 22 Evidence Act 1995 (Cth) s 140(1) |
| B & B [Access] (1986) FLC 91-758 B & R & the Separate Representative (1995) FLC 92-636 Briginshaw & Briginshaw (1938) 60 CLR 336 Fennick & Fennick (No. 2) [2008] FamCA 908 Hughes & Hughes (1980) FLC 90-869 Samuels & Newsham (Unreported, 1996, Gee J) |
| APPLICANT: | Ms Fanning |
| RESPONDENT: | Mr Wilkinson |
| INDEPENDENT CHILDREN’S LAWYER: | Darryl Perkins |
| FILE NUMBER: | CAC | 1857 | of | 2007 |
| DATE DELIVERED: | 23 June 2009 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Faulks DCJ |
| HEARING DATE: | 2 - 3 September 2008 Additional Submissions as to the Orders heard on 7 July 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Macpherson |
| SOLICITOR FOR THE APPLICANT: | Mrs Evans |
| COUNSEL FOR THE RESPONDENT: | Self-represented |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Gill |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Perkins |
Orders
IT IS ORDERED THAT:
… (“the child”), born … July 2004, live with her mother Ms Fanning.
Parental Responsibility
The mother have sole parental responsibility for the child.
Notwithstanding the last mentioned order, when the child is with either parent, that parent have responsibility for her day-to-day care and wellbeing.
Notwithstanding order 2 in relation to sole parental responsibility, the child’s mother will notify the father in writing of details of the school or childcare centre which the child attends and each party is hereby authorised to register his or her name and associated details with such school or childcare centre and request that such school or childcare centre provide to each parent copies of all school reports or any other reports on school progress or any other report or notice relating to the welfare and wellbeing of the child.
a. Notwithstanding order 2, each party is hereby authorised to communicate with any treating medical practitioner, counsellor or other medical care professional (including dental professional) involved in the care of the child to speak to the person concerned about the child.
b. Each parent will communicate with the other parent as soon as practicable if the child, in his or her care, suffers from a medical emergency requiring hospitalisation and to the extent that it is necessary each parent will be entitled to attend at the hospital in which the child is then a patient or an out-patient attending the out-patient’s department.
a. If any course of treatment is prescribed by a health professional for the child each parent will ensure the other parent is advised in writing of that course of treatment and if he or she has obtained medication will provide such medication to the other parent during the time that the child is with the other parent and will inform the other parent of any obligations or treatment to be undertaken in accordance with the direction of the health professional.
b.Each parent will use his or her best endeavours to follow the course of treatment as prescribed by the health professional.
To facilitate the last mentioned orders each of the parents will communicate through the communications book details of any medical practitioner or health professional upon whom the child is attending.
Otherwise and except in accordance with the abovementioned orders the father shall not attend upon any childcare centre or school at which the child is attending unless the prior written consent in the communications book of the mother is obtained.
Time for the child to spend with her father
The child will spend time with her father as follows:
a. For a period until 21 November 2009 for two hours on each Saturday between 10.00 am and 12.00 noon.
b. From 21 November 2009 until 19 March 2010, from 5.00 pm on Friday until 5.00 pm on the Saturday evening.
c. From 19 March 2010 from the end of school on the Friday until the commencement of school on the following Monday morning save that where the Monday is a public holiday or a pupil free day then the child will spend time with her father for that period until the school recommences on the Tuesday.
d. In the case of the weekends, commencing at the end of school on the Friday and recommencing on the Monday in accordance with the last order the Father will collect the child from school on the Friday and return her to school on the Monday.
e. Commencing in Term 1 school holidays in 2010, the child will spend one half of the ACT school holidays being with her father commencing at 9.00 am on the middle Saturday of the school holiday period and concluding at 5.00 pm on the last Sunday of the holiday period in years ending in an odd number and for the first half of the school holidays commencing at 9.00 am on the first Saturday of the school holidays and concluding at 9.00 am on the middle Saturday of the school holidays in years ending in an even number or zero.
f. During the longer school holidays at the end of the school year the child will also spend one half of her time with each of her parents. Unless they otherwise agree, her time with her father will commence as above at 9.00 am on the first Saturday of the holiday period and conclude at 9.00 am on the middle Saturday of the holiday period in years ending in an even number or zero and commencing at 9.00 am on the middle Saturday in the holiday period and ending at 6.00 pm on the last Sunday of the holiday period in years ending in an uneven number.
g. By way of clarification, Christmas Day will be spent by the child with the parent with whom she is living in the half of the school holidays designated by the abovementioned orders.
Hand-overs
For all hand-overs other than those occurring at the child’s school in accordance with the abovementioned orders, the father will organise and pay for a professional supervision service to facilitate a supervised hand-over.
The father will advise the mother, through the communications book or through her lawyers (in writing through their General Post Office Box Address), of the arrangements for supervision and will promptly communicate with the mother any change in such arrangements.
Both parties will do all things necessary to ensure that the professional supervision agency is aware of their contact details and will do all things necessary to facilitate the arrangements with that agency in a timely fashion.
Until such arrangements have been put in place, the child will spend no time with her father.
If, for whatever reason, the father is unable or unwilling to organise or pay for the costs of a particular supervised contact service for any time the child is to spend with him and for which such service is required, then the time that the child would otherwise have spent with her father will be foregone and will not be compensated for, unless the parents otherwise agree.
If the father should fail, for whatever reason, to spend time with the child either because he was unable or unwilling to do so (including his being unable or unwilling to organise the appropriate supervised hand-over), then the timetable set out in order 9 above will be adjusted so that the dates mentioned will be the first date upon which a transition to a new period of time for the child to spend with her father will commence. However, this will only occur if the father has, in fact, prior to that time, spent time with the child for 80 per cent of all of the time that he might have spent during the designated period. If the father should have failed to have spent 80 per cent of the time that he would otherwise have spent with the child by the designated date, then the commencement date of the new period will be postponed until he has spent 80 per cent of the time that he might have spent with the child during the period referred to, unless otherwise agreed by the parties.
IT IS FURTHER ORDERED THAT:
For the sake of certainty the following stipulations are made:
The child will spend the day of her birthday with whichever parent she would ordinarily be in accordance with these orders and will not, unless the parents otherwise agree, see the other parent on that day.
The child will spend Mother’s Day with the parent with whom she would ordinarily be in accordance with these orders and if that is not her mother her mother will not see her on that day, unless the parties otherwise agree.
The child will spend Father’s Day with the parent with whom she would ordinarily be in accordance with these orders and if that is not her father her father will not see her on that day, unless the parties otherwise agree.
Telephone communication
a. Each of the parents will provide the child with a mobile telephone to take with her when she is with the other parent.
b. The child may use that telephone to contact the parent with whom she is not then living at any time and the parent with whom she is then living will assist her to facilitate the call, if she asks him or her to do so.
Restraints on the parents
Pursuant to s 68B of the Family Law Act 1975 (Cth), the father be and is hereby restrained from approaching or contacting the mother or her partner, Mr G, except by use of the communications book or through the contact hand-over supervisor and is retrained from sending any text messages, e‑mails or SMS messages to either party and is further restrained from attending at the place of residence or the place of work of either the mother or Mr G.
Pursuant to s 68B of the Family Law Act 1975 (Cth), the mother be and is hereby restrained from approaching or contacting the father except by use of the communications book or through the contact hand-over supervisor and is restrained from sending any text messages, e-mails or SMS messages to the father and is further restrained from attending at the place of residence or the place of work of the father.
Each of the parents be and is hereby restrained from saying unkind, unpleasant or derogatory things about the other parent in the presence of the child or permitting any other person to do so in the presence of the child.
Communications Book
a. The parties will exchange a communications book at change-over.
b. The book will be delivered by the contact hand-over supervisor or in the case of a hand-over to occur at the child’s school by placing the book in the child’s bag to be handed to the other party.
c. The book will only contain information relevant to the child’s care, welfare and development and will not contain any abuse or criticism of the other parent.
Miscellaneous Orders
The Independent Children’s Lawyer is discharged from these proceedings.
By consent in the proceedings of 30 January 2009, the Chief Executive of the Department of Disability, Housing and Community Services (DHCS) will engage in providing assistance to the parties and may in fulfilment of this order call upon either parent when the child is with that parent without prior notice. The Chief Executive of DHCS may, in her (or in her delegate’s opinion), terminate any assistance at any time without the permission of the parties or this Court.
All extant applications by either party are either finalised or dismissed.
The matter is removed from the pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Fanning & Wilkinson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC 1857 of 2007
| MS FANNING |
Applicant
And
| MR WILKINSON |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a matter over which I have thought long and hard.
Over the course of the parties’ five year history there have been instances of illicit drug use, violent attacks, criminal offences, the involvement of a professional supervision agency and the Department of Disability, Housing and Community Services (DHCS).
At the centre of this is a nearly five year old girl (“the child”). She has lived principally with her mother for all of her life. She has spent supervised time with her father since February 2008[1] and has spent no time with him since June 2008.[2]
[1] Submissions of Mr Macpherson on behalf of the mother, filed in Court 30 January 2009, 15.
[2] Ibid, 16; Transcript, Day 5, Final Hearing, 30 January 2009, 13 (acknowledgment by the father of this fact).
The principal issues relate to each parent’s capacity to care for the child. Their capacity – or incapacity more appropriately – to communicate civilly or cooperatively is not in doubt.
The mother alleges that there have been around ten instances of violence towards her from the father between late 2003 and late 2006.[3] The mother’s step-father gave evidence of a violent incident with the father threatening the mother and him with a knife.[4] The father has been charged with assaulting the mother’s new partner, Mr G, on two occasions, one being near his place of work and the other in a police station.[5] Criminal proceedings in relation to these incidents are pending in the Supreme Court of the Australian Capital Territory (ACT).[6]
[3] Submissions of Mr Macpherson on behalf of the mother, filed in Court 30 January 2009, 7 – 13.
[4] Affidavit of Mr A, filed 31 July 2008, paras [22] to [51].
[5] Affidavit of Mr G, filed 31 July 2008, para [26], [31].
[6] Affidavit of the father, filed 13 May 2008, para [10]. There is no evidence before me as to the outcome of these proceedings, although I understand that they were to be heard and/or finalised in April 2009.
Other issues in relation to the father include: instability in relation to his employment and housing, whether he has a personality disorder, his past use of illicit drugs, his disregard for Court orders, his obvious antipathy towards the mother and all of those close to her and the involvement of his mother.
The mother has used illicit drugs in the past[7] and is said by the father to have been unstable in her living arrangements, particularly in her late teens. She worked in the sex industry[8] and has some criminal convictions against her for shoplifting.[9]
[7] Affidavit of the mother, filed 31 July 2008, paras [9] – [10].
[8] Ibid, [2].
[9] Exhibit “F1”, Exhibit “F6”.
Towards the end of the proceedings in September 2008, allegations were made against the mother regarding the state of hygiene in her home and her attitude and conduct towards the child, particularly of disregard and neglect of the child and the use of inappropriate language. Evidence was given by Ms N, who had participated in a house exchange through the DHCS. After her evidence, I granted the Independent Children’s Lawyer’s request to invite the Chief Executive of DHCS to intervene.
The primary decisions for my determination are:
i)with whom the child should live;
ii)ongoing safety issues for the child;
iii)what time, if any, the child should spend with each of her parents;
iv)arrangements for handover of the child;
v)whether supervision of either parent with the child is necessary;
vi)the time to be spent with the paternal grandmother;
vii)what the child’s surname should be; and
viii)whether additional support services are necessary to assist either or both parents.
I will consider each of these issues below following a recitation of the background of the parties’ “volatile relationship.”
Background: “A Volatile Relationship”
The parties commenced a relationship in July 2003. The child was born in July 2004. They separated one month later.
The mother characterises the relationship with the father as one of violence and of threats to her. She has moved house several times and explains that the purpose was to avoid the father knowing where she and the child were located. The violent instances are alleged by the mother to be:[10]
[10] These allegations are primarily detailed from the Submissions of Mr Macpherson on behalf of the mother, filed in Court 30 January 2009, 7 – 17 and in the Affidavit of the mother, filed 31 July 2008.
· In early 2003 or 2004, the father grabbed the mother’s neck and tried to push her off a bridge, resulting in the mother falling over (while pregnant);
· In May 2004, the father hit her with a closed fist;
· In August 2004, the father shoved her and hit her on the back of the head;
· The next day in August 2004, the father threatened the mother, saying “I am going to cut your fucking head off”;
· The day after that in August 2004, the mother told the father she was leaving. The father threatened the maternal grandfather with a knife and said “I am going to kill her”. The father was convicted of assault and sentenced to 150 hours of community service;[11]
[11] Exhibit “M4”.
· In January 2006, the father attended the mother’s home and forced entry by ripping the flyscreen off, entering through the door and breaking down the bathroom door in which the mother and child were hiding;
· In February 2006, the mother received an e-mail from the father threatening to take the child to Sydney and that he hoped she would die and that he would get rid of her;
· On 7 February 2006, an interim Domestic Violence Order (DVO) was granted in favour of the mother;
· On two occasions in February 2006 following the DVO, but before the father was served, the father attended the mother’s home and was removed by police;
· Police were called to attend upon a handover of the child when the paternal grandmother took the child in her car and drove away;[12]
· During the period March – May 2006, the mother alleges the father followed her and sent text messages;
· In May 2006, mutual undertakings were made after the mother made an application for a DVO. About one week later, the mother obtained a Personal Protection Order (PPO) against the paternal grandmother, which also named the child as a protected person. The PPO was subsequently withdrawn after an assurance was given by the paternal grandmother’s solicitor;
· Around this time in May 2006, the mother formed the view that the father and paternal grandmother were planning to abscond with the child. She formed this view on the basis of information from a private investigator whom she had hired while the child was in their care, that the father and the paternal grandmother were packing up their belongings. The mother attended upon the campsite where they were staying and called the police. The grandmother drove away and was chased by police and arrested. Also around this time, the father is reported to have told the mother that he would take the child to Sydney and that they would not be found;
· In August 2007, the father arrived at the mother’s partner’s workplace and punched him. He was charged with assault but criminal court proceedings have not (so far as I am aware) been concluded. The mother’s partner obtained a PPO;
· In September 2007, the parties came into contact in a shopping centre. The mother went to the police station where her partner was waiting. The father followed her and punched the mother’s partner. He was charged with assault and breaching the PPO. At the final day of the hearing on 30 January 2009, there were two charges pending against the father in the ACT Supreme Court;
· In July 2008, the parties attended upon the single expert psychiatry witness, Dr W. The father and paternal grandmother were asked to sit in reception, but instead proceeded to the private areas of the office and confronted the mother’s partner. The father and the paternal grandmother were directed to return to the reception area. No further incidents occurred.[13]
[12] Exhibit “F5”.
[13] Exhibit “J1”, Report of Dr W, 1 August 2008, 3.
The father acknowledges that the relationship with the mother has been fraught, indeed he characterised it as a “volatile relationship”.[14] He generally denied each version of events as related by the mother and explained that the incidents were instigated or provoked by the mother or were fabricated or exaggerated by her. He argued in his filed evidence that the mother has been conspiring against him and his mother to deprive them of time with the child. He alleged that she had lied to the police, breached various protection orders and failed to adhere to Court orders regarding the father’s time with the child. In his final submission, he urged me to consider that the violence has been directed both ways and that he is neither the sole culprit, nor the mother the sole victim.
[14] Transcript, Day 1, Final Hearing, 2 September 2008, 35.
Instances of violence or confrontation recounted as alleged by the father include:[15]
· Threats from the mother’s step-father including that he would beat him (the father) up, have him arrested, followed and watched him;
· At a family conference with a court counsellor in October 2006, the mother threw her handbag across the room towards the father and his mother and said “You fucking morons”;
· In August 2007 the child said to her father that the mother’s partner would kill him;
· Around the same time, the mother’s partner said to him that he and the mother had decided never to let the child see her father again;
· In September 2007, the father alleges that during the encounter at the police station, the mother pushed the father up against the counter after the altercation with her partner;
· Shortly afterwards in October 2007, the parties were all present at a nightclub in Canberra. The father alleges that the mother and her partner followed him around and that the mother said “Keep the fuck away from me” and “You’re a disgrace as a father”. The father also alleges that the mother assaulted a friend of his by throwing a drink in her face.
[15] These allegations are primarily detailed in the Affidavits of the father, filed 18 July 2008 and 7 August 2008 respectively.
The father also urged me to recognise the shortcomings of the mother’s care of the child. After I invited his intervention, the Chief Executive of DHCS investigated the matter. An unscheduled visit to the mother’s home took place. The Chief Executive reported that he had no concerns about the state of the mother’s home or her care of the child.[16] The Chief Executive declined to further intervene in the matter. The mother’s capacity in other respects, particularly following the evidence of the court appointed expert, will be considered in due course.
[16] Report of DHCS, admitted into evidence 30 January 2009, in accordance with s 69ZW(5) of the Family Law Act 1975 (Cth).
Time spent between the child and her father
Based on the overall evidence presented, I accept the following chronology as the time approximately spent between the child and her father throughout the child’s life:
· During the first month of her life before the parties separated;
· In November 2004, for three days;
· In March 2005, for five days (no overnight time);
· In July 2005, for one week with the father staying at the mother’s home and the parents sharing care of the child;
· In September 2005;
· In October 2005, for four days;
· In December 2005, for approximately one – two weeks;
· In March 2005, for one hour;
· In January 2006, interim orders were made in the Local Court in Sydney for alternate weekend time for the father to spend with the child;
· In March 2006, interim orders were made for the father to spend each Saturday with the child from 9am – 5pm, supervised by the paternal grandmother;
· In April 2006, interim orders were made for the child to spend unsupervised time with the father each Saturday from 9am – 5pm. This was to last until the child’s 2nd birthday, at which point the father would spend time with the child from 9am Saturday until 4pm Sunday on alternate weekends;
· After the incident with the police at the campsite in 2006, orders were made that handover occur at M Centre;
· In September 2007, orders were made that the father would spend time with the child supervised by M Centre;
· The following month, after proceedings were transferred to the Family Court, orders were made for the child to spend time with her father on alternate weekends Saturday – Sunday and for 24 hours on Thursday/Friday in the alternate week with handover at M Centre;
· Over the January 2008 Australia Day long weekend, the father did not return the child to M Centre on the Sunday as per the orders. He had taken her to Newcastle to see his extended family. A recovery order was issued and orders made in February 2008 that the father’s time with the child be supervised time at M Centre (this time being two hours per fortnight). The paternal grandmother and paternal great-grandmother were later permitted to be present;
· M Centre terminated their services in June 2008. I admitted into evidence (Exhibit “ICL1”) a letter from a Team Leader in the M Centre Contact Program, but only insofar as the letter related to the fact that M Centre wrote to the father and indicated that the supervision facility between the father and the child had been withdrawn.[17]
· As a result of this termination, the child could no longer see her father as per the orders. Applications were made in June and July 2008 for him to spend time with the child, unsupervised or supervised by his mother. These were dismissed given that the final hearing was scheduled for September 2008 and more evidence was required before a satisfactory arrangement could be determined.
· Interim orders were made pending final judgment in December 2008 providing supervised time for the father with the child for two hours per fortnight on the condition that a professional supervision agency was available. This was not possible. As such, the child has not spent any time with her father since June 2008, other than at the appointment with the Family Court appointed psychology expert in July 2008.
[17] Transcript, Day 3, Final Hearing, 4 December 2008, 59.
Orders sought by the parties
The mother seeks that she have sole parental responsibility for the child; that the child live with her and that she have no time with her father.
The father seeks equal shared parental responsibility; that the child live with him and that the child spend time with the mother on alternate weekends. In the alternative, he seeks that there be a week about arrangement.
In final submissions, the Independent Children’s Lawyer sought that the child should reside principally with her mother, but that the Chief Executive of DHCS be requested to undertake unannounced assessments in respect of the mother for a period of six months. The Independent Children’s Lawyer also suggested that the Chief Executive would offer “some degree of practical support for the mother.”[18] The Independent Children’s Lawyer also suggested that some time spent between the father and the child would be appropriate in light of the available evidence, albeit he noted that there would need to be a strategy for minimising conflict between the parties at handover and that “the preferred mode of handover would need to be a mode of handover which meant the parties did not in fact come into contact with each other.”[19]
[18] Transcript, Day 5, Final Hearing, 30 January 2009, 3.
[19] Ibid, 4.
Ultimately, the Independent Children’s Lawyer suggested that time spent between the child and her father should be on a weekly basis during the daytime on a Saturday for a period of four months, then fortnightly overnight on Friday through to the following Saturday.
In addition, the Independent Children’s Lawyer sought that I make an order pursuant to s 68B(1)(b)(i) of the Family Law Act 1975 (Cth), being an “injunctive order directed to [the father] for the personal protection of [the mother].”[20] In Mr Gill’s opinion, a s 68B(1)(b)(i) injunction would enable the Court to “[deal] with the matter as a contravention under Division 13A [of the Family Law Act 1975 (Cth)].”[21]
[20] Ibid, 5.
[21] Ibid.
I will discuss my concerns about handovers involving the parents following my determination about parental responsibility and the time each parent should spend with the child.
Credit and findings
The evidence of each of the parties is largely contradicted by the other. The extent and vehemence of the conflict means that I cannot find unqualifiedly in favour of the veracity of each party. The mother called witnesses to support her case, both about violent incidents with the father and the state of her home and treatment of the child. The father, who was self-represented, wished to call additional witnesses (being a friend of his who attended the nightclub, the mother’s public housing manager and a C Childcare Centre staff member). He was unable to arrange for them to file any material by the time of the continuation of the hearing in December 2008. Given the extensive time he had to prepare and the prejudice to the mother by such late material, I did not allow an extension of time for him to make further arrangements. The C Childcare Centre staff corresponded with the Independent Children’s Lawyer and nothing was sought to be put before me as a result of that correspondence.
The father did, however, subpoena a large number of organisations, including the police, various childcare centres and the mother’s health records. Although no additional witnesses were called by him, he tendered the material the subject of eight of those subpoenas for the Court’s consideration.
In general, the father presented – consistently over more than 20 court appearances – as someone articulate and intelligent. He conveyed his points very clearly, notwithstanding that he was self-represented. He was eager to assign blame for violent or destructive actions to anyone other than himself. He was deeply self-centred, harboured serious antipathy for the mother and anyone associated with her, was and is obviously impulsive and unable to control himself (including within a police station, at M Centre and at Dr W’s office). He clearly lacks insight into the effect of his actions on others.
This is supported by a comment made by Dr W in his assessment of the father:[22]
I found [the father] quite evasive, glib and nimble in his prompt but often rather vague responses to my questions. This was quite unsettling and I was left with the uncomfortable feeling that there was a lot more to be said about [the father] and his past and current lifestyle which was relevant to parenting than was divulged to me. From a psychiatric point of view, his unstable personal, educational and occupational trajectory, together with a smattering of criminal offences and his disingenuous appearance left me with the impression that significant personality problems within the antisocial domain were a distinct possibility.
[22] Exhibit “J1”, Report of Dr W, 1 August 2008, 18.
The mother presented as someone who, although having had a very troubled life until the last few years, was attempting to reassemble her life, including undertaking a degree in psychology and becoming engaged to her new partner with whom she is having another child. She was relatively candid in her evidence and admitted her past mistakes and regrets, such as shoplifting. She quite obviously shares a similar strength of antipathy towards the father as he does to her. Her responses were somewhat impulsive and flippant at times. I accept that she uses offensive language more than she says she does.
The evidence of her partner, Mr G, was helpful in assessing claims that the mother is getting her life on track. He presented as very straightforward, calm and reasonable and I accept his evidence regarding his observations of the mother’s home and the love and care that he has observed the mother providing to the child (he described her – and I accept that there may be an understandable tendency to hyperbole in his description – as “the best mother I have seen”).[23]
[23] Transcript, Day 2, Final Hearing, 3 September 2008, 134.
Dr W’s assessment of the mother included that she was not entirely straightforward with him. He commented that:[24]
…there was some possibility that her account is basically accurate, and that she is gradually getting her life on track. If that indeed is the trajectory, then in retrospect I would have thought that from a psychiatric point of view she would have been seen as having a very troubled teenage period arising out of her family life and that she could have been diagnosed with a Dysthymic Disorder, which is a mixture of emerging personality disorder and depression, but that she has gradually been able to stabilise her life since then. If that is the case, then provided she is able to maintain a stable relationship and continue her education, there is in turn a reasonable prospect that emotional and personality problems would not affect her parenting abilities too adversely, although parenting counselling would still be of assistance.
Obviously of course if there is evidence that she continues to lead a disruptive or dysfunctional lifestyle, and particularly if drugs are still a feature of this, then one would expect that she would be an inconsistent and unreliable parent who would probably present a risk of at least emotional abuse and neglect, if not physical abuse and neglect, to her daughter.
[24] Ibid, 17–18.
I make the following findings.
The mother’s standard of care
The father was successful in filing an affidavit from Ms N, the tenant who underwent a home exchange with the mother. She gave evidence in December 2008 indicating that the mother’s house was filthy and that the mother treated the child with neglect, abusive language and as though she was a nuisance. Despite skilful cross-examination, Ms N did not resile from her evidence.
On the other side, the mother and her step-father, sister and friend gave similarly firm evidence, indicating that the mother’s house, while not always neat, was certainly clean. They gave evidence that the mother was very loving towards the child and that she did not use abusive language.
This view was to some extent reinforced by a report to the Court from the Office of Children, Youth and Family Support (OCYFS) (within DHCS) on 29 January 2009 as mentioned above. The OCYFS’s report stated that the child:[25]
…presented as a confident, happy and healthy child… [the child] displayed a positive attachment to her mother and their interactions with each other were appropriate. The [Care and Protection] workers observed that the living areas were untidy and disorganised. Clothes and other household items were spread around the floor of the living areas. While the living areas were disorganised, they were clean and there was nothing that would be of threat to [the child’s] health or safety.
[25] Report of DHCS, admitted into evidence 30 January 2009, in accordance with s 69ZW(5) of the Family Law Act 1975 (Cth). This was a “surprise visit.”
The report notes the mother’s explanation that she had recently moved to a smaller property, that she was pregnant and organising things in the house and that they had just returned from a holiday.
The report concluded that:[26]
whilst [the mother’s] situation may demonstrate the need for ongoing support and assistance from appropriate services (eg [the local] Child & Family Centre), there was no evidence to suggest [the mother] was not providing an appropriate standard of care for [the child].
[26] Ibid.
In addition, counsel for the mother tendered the DHCS inspection report dated 29 May 2007.[27] The report indicated that all areas were in good condition. The comments made were that the fly screen required replacement, the walls, windows, oven and carpets needed to be cleaned. The housing exchange was subsequently approved.
[27] Exhibit “M7”.
While Ms N’s evidence is troubling, the evidence from DHCS (who have an interest in keeping their properties in a reasonable condition and no lack in demand for alternative tenants should a current tenant be in breach of their lease) and the OCYFS is corroborative of the mother’s case.
I find, therefore, that although the mother may not be an exemplar of motherhood, her care of the child is at least adequate and appropriate and does not place the child at risk.
The father’s violence
As outlined above, there are several allegations and instances of the father at least being involved in a violent confrontation. The issue for me is determining whether there is a risk to the child in her spending time with him.
In addition to the charges (with proceedings pending) against the father for the altercations with Mr G, according to the police record tendered into evidence by the mother, the father has the following convictions:[28]
[28] Exhibit “M4”.
· malicious damage (1996, fined);
· assault of police (1997, fined);
· malicious damage (1997, fined);
· offensive language (1997, fined);
· assault of police (1997, fined);
· take and drive without consent of the owner (2003, fined);
· driving unlicensed (2003, fine);
· two convictions for possession of a prohibited drug (2005, fined);
· armed with intent to commit indictable offence (2005, plea of guilty, conviction of common assault accepted and indictment discharged, community service ordered); and
· common assault (2006, community service ordered).
In relation to the most recent alleged assault on Mr G, the father insists that Mr G hit him first. Surveillance tape of the incident in the police station was shown as part of the evidence in these proceedings.[29] The Independent Children’s Lawyer took the Court through the tape in slow motion (“frame by frame”). The tape shows the father from the back and Mr G is facing the camera. It is clear that the father walks very quickly into the police station, directly towards Mr G (rather than towards the front counter of the police station) and is lifting his arm as he walks. Mr G does not move until the father is within striking distance (so to speak) and even then, he moves by raising his hands in front of his torso consistent with defence. (His precise movement of his hands is by that time obscured by the father’s body). It is clear that the father punches Mr G.
[29] Exhibit “M3”.
The father insists that Mr G hit him first and that he responded in self‑defence. Mr G has not been charged. While I would not presume to make a finding according to the criminal standard, I am satisfied on the balance of probabilities[30] that the father did assault Mr G.[31]
[30] I do so conscious of the High Court authority of Briginshaw v Briginshaw (1938) 60 CLR 336 and s 140(1) of the Evidence Act 1995 (Cth).
[31] I am somewhat justified in my finding by the father’s deliberate editing of the tape to eliminate material which might be adverse to him. (He has skills in editing.) He sought to put into evidence his version. His explanation for his editing is both feeble and unbelievable.
The risk to the child from the father’s violence
There are four ways in which the child could be at risk from her father’s violence:
i)by being a direct victim;
ii)as a result of psychological trauma from witnessing violence towards her mother or extended family or any other person;
iii)by taking on his behaviour as it is modelled to her; and
iv)by psychological harm from the conflict (whether physical, verbal or feared) between her parents.
There is no evidence to suggest that the father has in the past inflicted violence upon the child. No one urged me to make that finding. He insists that he loves his daughter very much and the observation from Dr W of their time together would generally support that. In particular, Dr W commented that:[32]
I did not observe any evidence that she had any fear or inhibition around any of the parties, as might have been the case if she has been exposed frequently to quite frightening situations.
[32] Exhibit “J1”, Report of Dr W, 1 August 2008, 16.
However, there seems to be a tendency on the father’s part to respond to situations he does not like with impulsiveness, aggression and violence. The danger inherent in these characteristics is demonstrated in the general observations of Dr W. Referring to the emotional/behavioural state of the parents, including their maturity, lifestyle and background, Dr W said:[33]
This issue may be seen in narrow terms of diagnosable mental illness or personality disorder, the treatment and prognosis of any condition, and whether the presence of the condition has an impact on parenting capacity. A second and broader issue which is also relevant to parenting concerns certain personality attributes which do not constitute a diagnosable disorder. The most important dimensions to this appear to be aggressiveness, impulsiveness, immaturity and self-centredness. People with such aspects to their character are more likely than other parents to put their interests above those of the children, either thoughtlessly or deliberately.
If that is the case, then there is a risk to the child that she would be subjected to violent behaviour if she does something to displease him or her father loses it (and restraint and objectivity) because he has become thwarted in some way. I assess the risk as real based on his past behaviour but not unacceptable. There is no evidence which would make the occurrence of such an incident directed to the child probable. It remains possible.
[33] Ibid, 17.
In the event that DVOs and PPOs were sufficient to prevent any contact between the father and the mother and her family, then the risk of the child witnessing such conduct is minimal. I note that she has in the past been present, such as at the campsite incident on 27 May 2006. There have been no reported instances of violence since the assault in the police station in September 2007, although there was a confrontation in Dr W’s office in July 2008. This incident would suggest that whatever arrangement about the child spending time with her father was ordered, there must be no contact between the mother and her family with the father and his mother. The mother has moved house several times, she says each time as a result of the father finding her and her therefore feeling threatened. The father may not carry out acts of violence in the future but he can hardly blame the mother for taking some of his past threats (which I am satisfied he made) seriously. If he did not mean it, he should not have said it.
The father’s violent and aggressive nature is also an issue in relation to the child’s development. Should she learn that behaviour as the model for conflict resolution, she is in danger of, at least not reaching her full potential, or worse, regarding violence as an acceptable method of resolving conflict. At this stage this is merely speculative and again, I have no evidence upon which to make a direct finding of risk. It is something I will consider further under s 60CC of the Family Law Act 1975 (Cth). On balance, I believe I can reasonably hope that once these proceedings are finished the father may become more settled and less prone to frustration and violence.
Finally, there is the issue of risk to the child from absorbing the parent’s highly acrimonious opinions of each other. This is a risk that many children in this Court face and is an issue I will return to under s 60CC of the Family Law Act 1975 (Cth).
Apart from my finding about the altercation involving Mr G at the police station, I do not make specific findings about each instance of violence or threat the mother has alleged against the father. In this matter, each parent has made a number of serious allegations. Because I am not confident in either parent’s account of events, I am unable to find that either the mother or the father has conducted himself or herself precisely as the other person says. That does not absolve either parent; it in fact makes me more careful in weighing each’s capacity to adequately care for the child.
Adherence to Court orders
This is an issue for each of the parents.
As previously indicated, the father absconded with the child on the Australia Day long weekend in January 2008. He insists that he was planning to return her (that is, to return her later, rather than not at all).
The following extract from the transcript of the final hearing is illustrative of the father’s view about his attitude towards Court orders:[34]
[34] Transcript, Day 3, Final Hearing, 4 December 2008, 50 – 51.
MR MACPHERSON: Do you think that that was – are you comfortable with that decision?
[THE FATHER]: No, it is a breach of his Honour’s orders.
MR MACPHERSON: It was clearly wrong, wasn’t it?
[THE FATHER]: Yes, it was difficult.
MR MACPHERSON: It was?
[THE FATHER]: It was a difficult thing to do.
MR MACPHERSON: It was wrong, is the question.
[THE FATHER]: Morally it was not wrong. Legally it was wrong.
MR MACPHERSON: So again, you have no regrets about your behaviour on the..?
[THE FATHER]: Yes, I do, I breached his Honour’s orders and I regret that.
MR MACPHERSON: Do you regret anything else?
[THE FATHER]: About that weekend, no.
Dr W also made a specific comment about this issue. He said:[35]
Because I thought that [the father] probably has more severe and entrenched personality pathology than does the mother, and bearing in mind his high-handed retention of [the child] over the Australia Day weekend, I would be particularly concerned that he is a person who has little regard for court orders and that the risk of him taking matters into his own hands again is quite high.[emphasis added]
[35] Exhibit “J1”, Report of Dr W, 1 August 2008, 17.
The father asserts that it is the mother that has shown contempt and disregard for Court orders. While he did not file a contravention application,[36] he did file an affidavit,[37] setting out some 13 incidents, including:
· not naming the father on her birth certificate;
· refusing or delaying the time to be spent with the child; and
· bringing additional people to handovers and not providing the father with details about childcare.
[36] The father explained the reason for this being as “a result of receiving advice that the Family Court does not like contravention applications but would rather that the matter is settled privately.”
[37] Affidavit of the father, filed 23 June 2008.
All of these events, he asserts, are a breach of previous orders of the Federal Magistrates Court.
Given the extreme hostility between the parents and that both have shown characteristics of impulsiveness, I have some doubts about either of them properly adhering to Court orders they do not agree with. Orders I make should minimise this possibility if they can by being clear and prescriptive. However no order about children is so certain that a determined parent cannot find a reason to be ‘uncertain’. These are very determined people!
the law
Section 60B of the Family Law Act 1975 (Cth) sets out the objects and principles that underpin the Part VII of the Act relating to children. Section 60B(1) relevantly provides:
The objects of this Part are to ensure that the best interests of the children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring the parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
Section 60B(2) reads:
The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with both of their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60B(3) is irrelevant for these purposes.
In determining what constitutes the best interests of the child, I am obliged to take account of the matters set out under s 60CC. I am obliged to do this because in making any particular parenting order the Court must regard the best interests of the child as the paramount consideration, which is the effect of s 60CA of the Family Law Act 1975 (Cth). Section 60CC(2) and s 60CC(3) relevantly provides:
Primary Considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional Considerations
(3) Additional considerations are:
(a)Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)The nature of the relationship of the child with:
(i)Each of the child’s parents; and
(ii)Other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(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;
(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;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family; if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(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;
(m)any other fact or circumstance that the court thinks is relevant.
I must also go on to consider s 60CC(4) & (4A):
Without limiting [s 60CC(3)(c) and s 60CC(3)(j)], the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(iv) participating in making decisions about major long‑term issues in relation to the child; and
(v)spending time with the child; and
(vi)communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A) If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
APPLICATION OF THE LAW
Parental responsibility
This is not a matter in which equal shared parental responsibility would be possible. The conflict between the parents is palpable. Their ability to communicate with each other is non-existent. In relation to this issue, on the first day of the hearing, the mother made the following illustrative comments:[38]
[38] Transcript, Day 1, Final Hearing, 9 September 2008, 76 – 77.
MR GILL: Now, I am going to ask you about whether or not you think that you will ever be able to speak to [the father]. Disregarding the way that you think [the father] might behave towards you; do you think that you have any personal impediments that would stop you speaking to him?
[THE MOTHER]: Yes.
MR GILL: Are you able to say what they are?
[THE MOTHER]: I have a partner. He is in our life for good. And I can’t talk to him after the incidents that happened. I don’t trust him. Sorry.
MR GILL: Sorry, when you refer to your partner – take a moment?
[THE MOTHER]: Sorry. Sorry, it’s a very long day.
MR GILL: So Ms [Fanning] I was asking you whether or not you had any personal impediments that would stop you speaking to [the father] and you have mentioned your partner.
[THE MOTHER]: Yes.
MR GILL: I don’t quite understand how you are saying that that is a barrier for you in speaking to [the father]. Can you explain that?
[THE MOTHER]: Because there always seems to be a problem. It [sic] can’t seem to get past that even with the ARK [sic] program. We couldn’t get around that because he’s not going anywhere and we have a protection order in place and I have no assurances that he is not going to hit my partner again. And it’s just the old violence but I don’t know that it’s not going to happen again. Sorry, I am probably not making myself very clear.
MR GILL: No, perhaps if I can go through that again. You’ve said that there’s the old violence and you’re not sure if that will happen again. How does that impact upon your ability to speak to [the father]?
[THE MOTHER]: I don’t trust him. I think he would be just as violent and just as angry and take it further than he did in the past couple of years. There’s always been some anger there when we spoke and I just – I don’t know that he wouldn’t lose it again.
MR GILL: So then if I can summarise what you’re saying; you’re saying that there’s some fear there that would stop you speaking to [the father]?
[THE MOTHER]: Yes, sorry.
MR GILL: You’ve spoken about your current partner. I am still, I don’t think, quite grasping what you’re saying about that?
[THE MOTHER]: I don’t see how a helpful or positive relationship could ever be re‑established if I am supposed to ask [the father] and his views in parenting while still having the same partner that he attacked for having around. Like when we were at the ARK [sic] program they were trying to ask the same question, “Could it ever be a stage where [the father] could call the house and it would be okay?” but I don’t see that there would ever be a lack of conflict as long as [Mr G] was involved.
The parties also appear to have different aspirations for their daughter. In her evidence in cross-examination, the mother expressed concerns about what the father planned to do with the child in relation to her schooling, where the child might live with the father, her napping arrangements, toilet training and her daily routine generally.[39]
[39] Transcript, Day 1, Final Hearing, 9 September 2008, 78 – 79.
In summary, the parties have demonstrated no capacity to cooperate with each other, even if each is purporting to put the child’s interests in the forefront of his or her mind.
Accordingly, the person with whom the child is living should have sole responsibility for her long-term care, welfare and development. To the extent that the child spends time with the other parent, that parent of course, should have responsibility for her day-to-day care, welfare and development.
It is appropriate that the parent with sole parental responsibility should be obliged to keep the other parent informed about significant developments in the child’s life. These include (but are not limited to) matters relating to her school, her health and any significant events which occur to her from time to time.
There is significant force to Mr Macpherson’s submissions that the child’s father has had very little time with the child and it would appear to me that perhaps for this reason alone placing the child in his primary care would involve a leap of faith of Olympian proportions. The father is entitled to feel somewhat aggrieved about this because if he had had his way, then the child would have been living with him for a substantial part of her young life. However, irrespective of what the father may see as his rights, my concern must be for the child’s best interests and whatever may have been the reason for the situation there can be no doubt that she has spent by far the majority of her time with her mother (as demonstrated above).
Beyond this consideration of the time that the child has so far spent with her father and, notwithstanding the father’s assertion that he had had no experience before she was born and that therefore lack of experience during the last few years of her life should not constitute a disqualifying factor, in my opinion, there is no reasonable justification for the proposal that the child would live primarily with her father in preference to her mother who has some corroboration for the view that she is becoming a better mother.
Notwithstanding the father’s derisory criticism of the mother’s parenting (his most gentle comment about it would perhaps be “erratic”), the balance of evidence suggests that the mother is capable of caring for the child in an adequate way. That is not to say that she comes before the Court as a beacon of maternal skill and rectitude. In particular, the evidence of Ms N in relation to her experience with the mother is disconcerting.
The evidence of Ms N regarding the mother
In general, I accept the submissions of Mr Macpherson about this matter. The factors which are significant are about Ms N’s evidence are that she was a volunteer and almost became involved in the proceedings on her own initiative. She was vehement in the condemnation of the mother. She resisted any suggestion that she may have in any way exaggerated or misrepresented the matters that she put forward in her evidence. She did not appear to have any discernable axe to grind and what she said was, to say the least, disturbing. It was primarily her evidence I suspect, which prompted the Independent Children’s Lawyer to seek at the end of the hearing, for me to issue an invitation to the Chief Executive of DHCS to intervene in the proceedings even at that very late stage.
The Chief Executive declined to intervene, but did arrange what could be referred to as an “unannounced visit” on the mother and provided a report about this matter. In the end, the Chief Executive was unconvinced that the mother was incapable of looking after the child. Moreover, the mother adduced evidence from her step-father,[40] her sister[41] and her new partner Mr G,[42] all persons who might be thought to be allied with her (it must be said) but who clearly and unequivocally rejected any suggestion that the mother was not capable of properly looking after the child and which provided support for the proposition that she was a more than adequate parent.
[40] Affidavit of Mr A, filed 31 July 2008, para [81].
[41] Transcript, Day 2, Final Hearing, 3 September 2008, 150 – 152.
[42] Transcript, Day 2, Final Hearing, 3 September 2008, 134.
This leaves something of a difficulty. Ms N’s demeanour in the witness box was testy – possibly even aggressive. She emphatically rejected any suggestion that she should qualify her observations in any way. There was nothing in her demeanour as such which made her inherently unbelievable.
However, my obligation is to construe the evidence on the balance of probabilities and taking account of the demeanour of the witnesses, the substance of the matters referred to, the limited nature of the observations conducted by Ms N and, importantly, the attitude of the Chief Executive, I find that Ms N’s evidence was formed by her misunderstanding, misconstruing or exaggerating what she observed. I find in this context that Ms N’s evidence cannot be relied upon. This is not to doubt her genuineness. I do not doubt that she, when giving her evidence, believed that what she said was true. However, in the context, I prefer the evidence of the mother’s witnesses in this regard corroborated as they are by the material available from the Chief Executive.
There are a number of other matters which bear upon my determination about where the child should primarily live. The father displays a peculiar trait in that when he becomes intense or excited, he also appears to become oblivious to the consequences of his actions. I accept Mr Macpherson’s suggestion that any person who is prepared within the context of a family law dispute to engage in an assault in full‑view of video cameras in a police station or to create a disturbance in the assessing single expert’s rooms has little, if any, concept of the way in which his actions may reflect on those around him or how he may be seen by others and I might add little concern for the consequences of himself.
The father in each of those circumstances, no doubt, felt aggrieved. He may have been entitled to feel aggrieved. Nevertheless, he was not able to control his actions and to channel them in an appropriate way. This self-centred obliviousness is of deep concern to me. If I had any lingering doubts about this matter, the fact that it is common ground that M Centre terminated their arrangements with him[43] would persuade me that there is a substantial risk that if the child were with her father and if for any reasons he became agitated he may fail adequately to look after her best interests. I do not suggest that he would deliberately do anything to directly harm the child, but his failure even in the context of Court proceedings to recognise that his behaviour in the circumstances referred to above might have an impact on the mother or the child (or for that matter Mr G) suggests that he is seriously without insight into his own behaviour. These are matters which bear upon another part of my decision in due course. In reaching that conclusion, I have balanced a number of aspects of s 60CC of the Family Law Act 1975 (Cth). However, primarily I have relied upon s 60CC(2)(b) which relates to the importance of preserving the child’s safety. This is one of the primary considerations which I must take into account.
[43] Exhibit “ICL1”, Letter from Team Leader, M centre Contact Program, 1 July 2008. I admitted this letter into evidence only insofar as it related to the fact that M Centre wrote to the father and indicated that the supervision facility between the father and the child had been withdrawn (Transcript, Day 3, Final Hearing, 4 December 2008, 59).
One further factor would confirm the view that I have that the mother is properly capable of looking after the child is that the father’s fall-back position from his being the primary carer for the child is that the parents should share the child’s time on a week and week about basis. This explicitly leaves the child with her mother for 50 percent of the time and the father expressed no reservation or qualification about that. If he shared the concerns of Ms N, and if he genuinely believes that the mother is incapable of looking after the child, then it seems beyond reason that he would agree that the child should spend half her time with such a person.
Conclusion about parental responsibility
It is largely agreed that the parties cannot co-operate at all. There is almost zero possibility of their having a “business-like” working relationship to make decisions about the child’s care. The father has criticised the mother for her decisions, such as child-care and the state of the house; the mother says she does not feel safe in his presence and does not trust the father to make decisions at all.
For the child to have her parents forced to decide together issues relating to her care and for them to fail to do so and/or return to Court over and over again would subject her to significant disadvantage, both in terms of stability and in being exposed to conflict.
In accordance with s 61DA(4) of the Family Law Act 1975 (Cth), in light of the overall evidence and on the basis of the child’s best interests, the presumption of equal shared parental responsibility[44] is rebutted.
[44] Family Law Act 1975 (Cth) s 61DA(1) and s 61DA(4) refers.
In that situation, I must determine who ought to have sole parental responsibility for decision-making.[45] The mother has been the child’s primary carer for the majority of her life and, on balance from the evidence, is doing a reasonable job. Both the OCYFS and Dr W commented that the child appears to be well cared for.
[45] Family Law Act 1975 (Cth) s 61C(3) refers.
The father, on the other hand, has not demonstrated an ability to put the child’s needs ahead of his own. Some examples are that: he has assaulted the child’s (soon to be) step-father, he has had supervision facilities withdrawn from him at M Centre, he has had some difficulty in securing stable employment (although he insists he is returning to full-time study) and there are some doubts about his housing arrangements – at least in the past.
Those factors considered, the mother should continue to have sole parental responsibility for the child and I will make an order to this effect.
Equal time or substantial and significant time with each of the parents
Leaving aside the matters set out above which, in my opinion, bear upon the father’s capacity properly to care for the child, the intractable conflict between the parents would mean that any arrangement which involved the parent’s cooperating about a schedule as shared parenting would be doomed to failure. When parents cannot even exchange a civil word with each other, to suggest that they would be able to adequately cooperate and plan to ensure the child’s best interests on a continuing and collaborative basis is patently absurd.
I do not believe this is a matter in which the father should have equal time with the mother in the care of the child, or should have significant and substantial time with the child. For the reasons I have already set out above, in accordance with s 65D(1) of the Family Law Act 1975 (Cth), I determine as such on the basis that it would not be in the child’s best interests. For these reasons, it seems to me that it is inevitable that the child will spend her time primarily with her mother.
What time might the child might spend with her father?
There is some force to the argument advanced on behalf of the mother that the father’s attitude is such that if the child were to spend time with him, there would inevitably be conflict between the parents and that this would adversely affect the child. Moreover, the mother is entitled to assert (although I am not sure that I accept the validity of the assertion) that the child’s spending time with her father would cause such anxiety to the mother that this would operate adversely on the mother’s ability properly to be a parent for the child. I do not, however, consider this anxiety on behalf of the mother to be analogous to the situation before his Honour Gee J in the matter of B & B [Access][46] where (in the context of an allegation of sexual abuse by a father against a child) “access to the father under [the] circumstances would only increase the mother’s anxiety and provide emotional confusion for the [child]”.[47]
[46] B & B [Access] (1986) FLC 91-758.
[47] B & B [Access] (1986) FLC 91-758, 75,545, considered more recently in Fennick & Fennick (No. 2) [2008] FamCA 908, [190] to [192] (Watts J).
I accept that, over the years, the mother has been the subject of overbearing conduct on the part of the father. My observations of him, together with his evidence,[48] confirm unequivocally that the father almost obsessively seeks to control any situation in which he is involved. One aspect of his controlling nature is his total lack of any genuine contrition for his breach of the orders which in fact resulted in his time with the child being supervised.
[48] It is useful to include the following ironic and, indeed hypocritical, extract from the father’s Affidavit, filed 13 May 2008, para [4]: “…The mother expresses her opinion that my comments equate to our never being able to parent [the child] together, an expression of her own attitude that it is an impossible scenario. It is the mothers oppinion [sic] that I show her disdain and show her no respect in relation to her parenting ability or to her as a person. The mothers [sic] comments show that she has no capacity to take critisism [sic], which I would submit are ultimately constructive when considering the long term interests of [the child]. I have made submissions that the mother is a pathological liar, that she acts selfishly and maliciously in her own interests rather than in [the child’s] interests, and that she is lacking in parenting skills. I stand by these submissions and rely upon evidence that is already before the court and upon evidence yet to be brought before the court.”
His removal of the child on the Australia Day weekend in 2008 was because he thought it was in the child’s best interests. The father’s failure to comprehend the consequences this might have or to accept that those who have an interest in the child may be suspicious of him in the future (or indeed should be suspicious of him in the future) are illustrative of this point.
Although the mother was keen during the course of the proceedings and in her affidavits to present herself as an overborne and repressed person, in her oral evidence particularly, the mother’s much more robust personality emerged. I do not accept the father’s summary that the violence in the course of their relationship was in some way reciprocal. Notwithstanding that, I do not doubt that the mother, (to use a colloquial term,) knows and knew exactly which buttons to push to obtain an appropriate reaction from the father. Moreover, I am satisfied that there are occasions on which she did push such buttons, knowing full well that the father would behave in some essentially irrational way.
The father’s obliviousness to the consequences of his actions, his vehemence, if not ferocity, on some occasions and his apparent inability to control or restrain himself could reasonably give rise to a deep sense of apprehension on the part of the mother. This bears in part on my decision, but not, in my opinion, at this point, to the extent of saying that any possible reaction that the mother may have to the time that the child would spend with her father must necessarily and inevitably generate such anxiety on her part as to preclude her from being able to parent adequately.
Notwithstanding the incident on Australia Day 2008, I am also satisfied concurrently with the evidence put forward in the proceedings and, in particular, as a result of the submissions by the Independent Children’s Lawyer, that the risk of the father’s absconding with the child is relatively small. The Australia Day long weekend 2008 incident was not an attempt to take the child away from her mother permanently but rather an attempt the teach the mother a lesson. There is no evidence before me which would allow me to conclude that there has ever been an intended expression on the part of the father that he would remove the child and, in effect, abscond with her. Moreover the father’s personality is such that, if that were his intention, it is difficult to imagine that he would not have expressed it at some point.
It follows that I accept the submission of the Independent Children’s Lawyer that any time that the child spent with her father need not be supervised to prevent his removing her from the care of her mother.
I further accept that if it were feasible for the child to spend time with her father without there being any interchange between her parents, then there is evidence that the child could have a rewarding and enjoyable time with her father. In relation to this issue, Dr W stated that:[49]
[The child] seems to have quite a close attachment to her mother and also to her father and grandmother, although the relationship with her father and grandmother has probably become somewhat attenuated this year with the reduction in time…I did not observe any evidence that she had any fear or inhibition around any of the parties, as might have been the case is she had been exposed frequently to quite frightening situations.
I also note that she seemed to be able to have quite lengthy cycles of play with both of her parents, suggesting that she is used to both of them being able to sustain their focus on her.
[49] Exhibit “J1”, Report of Dr W, 1 August 2008, 16.
I note that Dr S (prior to the further incidents of violence against Mr G had occurred) stated that:[50]
[both parties] appear to have a positive relationship with [the child] and she has clearly benefited from the care she has received to date….There seem goods reasons for [the father] to spend increased time with [the child], particularly during the period before she starts school.
[50] Exhibit “J4”, Report of Dr S, 10 May 2007, 5.
Whether he is able to put aside his sense of grievance and look upon his time with the child as a time for joy and happiness is perhaps another matter, but one for which he should have the benefit of the doubt at this point. This is consistent with the Independent Children’s Lawyer’s recommendation and in line with the report from Dr W.
Of some concern in this regard, however, is the suggestion from the Independent Children’s Lawyer that there should be a graduated program for the development of the father’s time with the child which, in the Independent Children’s Lawyer’s opinion, should result in about four months time in overnight time from the Friday through until presumably the Saturday evening. In many cases it may be assumed that the parties would, after a successful period of transition such as this, agree on more extensive time as the child involved grows older and as their relationship steadily improves through the reconstruction of mutual trust over time.
Such an expectation is not justified in this matter. There is absolutely no suggestion on the evidence before me that the relationship between the parents will ever improve, even to the point of their being able to conduct a civil conversation with each other. To put it bluntly, the parents despise each other and they want nothing to do with each other. They see nothing good about each other and each would be happier if the other parent were never part of the child’s life.
This gives rise to a consideration of s 60CC(3)(l) of the Family Law Act 1975 (Cth) that I should consider whether it would be appropriate to make orders which would be less likely to lead to further litigation. I have no confidence that anyone would be able to construct such an order in this matter. It is inappropriate to have the transitional arrangements conducted in effect under the delegated authority of the Independent Children’s Lawyer. Ultimately, further determinations will need to be judicially made.
Conclusion about the time to be spent between the father and the child
In summary, in my opinion, there is no reason because of a likelihood that he might abscond with the child to prevent the child from spending time with father. I am also unsatisfied that her spending time with her father would produce in the mother such a state of anxiety as would prevent the mother from being able to parent adequately.
The father’s persistence in the face of significant opposition in seeking to care for the child, together with the relatively positive responses reported by those who have seen them together (and I accept his mother’s evidence in this regard as well) are all factors that lead me to conclude that there could be benefit for the child in spending time with her father unsupervised.
The extent of that time is a more difficult in the face of any suggestions from the father about the sort of time he would be prepared to accept in circumstances when he did not get his way (ie sole parental responsibility and care or equal shared parental responsibility and care). This difficultly must have significant weight in my decision‑making. If I were to implement the program suggested by the Independent Children’s Lawyer it may give rise to further proceedings in due course. So be it. I am unable to foresee the future and cannot tell whether the parties might be prepared to negotiate further after the first six months. If I were being put on the spot I would say that it is totally unlikely that they would, however, it is probably sensible to give them an opportunity to demonstrate that they love their daughter more than they hate each other. Sadly, I doubt that such is the case.
The challenge of handovers: insurmountable obstacle?
Notwithstanding such a determination on my part, there remains what may constitute an ostensibly insurmountable obstacle to the child’s spending regular time with her father.
It is inconceivable that there could be a time between these parties where the child might move from one to the other, after having been delivered by one and collected by the other. All recent interchanges between the parties have been volatile and, to some extent, potentially violent. This is particularly evident in the footage I reviewed in Court of the father hitting Mr G in the presence of the mother in a police station; the altercation that Dr W described that occurred in his rooms between the parties and the incident that occurred at the Caravan Park in May 2006. I consider that any flexibility in arrangements would result almost inevitably in each party misconstruing the arrangements to his or her advantage. The parties are each unable to sublimate his or her sense of grievance for the best interests of the child.
The Independent Children’s Lawyer indicated that he appreciated the practical difficulties associated with hand-over and offered for his appointment to remain open for a period of six months on the basis that the transitional hand-over regime would be approved by the Independent Children’s Lawyer.
Mr Tandy, on behalf of the Chief Executive of DHCS, had indicated that the Chief Executive was not contemplating that any care proceedings should be undertaken. Mr Tandy said that the Chief Executive:[51]
may be able to assist the Court…in relation to handover of the child were particular contact arrangements be in place, and also if the Court were minded to – or held a view that there may need to be some further monitoring of the matter over a certain period of time and (indistinct) would be prepared to do that...
[51] Transcript, Day 5, Final Hearing, 30 January 2009, 1.
Mr Tandy affirmed that the Chief Executive would consent to orders in those terms, if necessary. I interpret the offer for monitoring to be for the purposes of DHCS officers making unannounced visits to the mother’s home and to provide some monitoring of the care she is providing for the child.[52] There is also a basis, in my opinion, for such monitoring to occur of the father.
[52] Indeed, following an application from the Independent Children’s Lawyer on 5 December 2008 pursuant to s 91B of the Family Law Act 1975 (Cth), I requested the intervention of the Chief Executive of DHCS for the “purpose of…[permitting] the Chief Executive to exercise her functions pursuant to section 22 of the Children and Young People Act 2008 (ACT) in respect of…[the child].” (Order 1 and Order 2 of Deputy Chief Justice Faulks, 5 December 2008).
Mr Macpherson opposed the proposition that the nature and arrangements for supervision or handover could be delegated to the Independent Children’s Lawyer. Mr McPherson referred me to the decision in Samuels & Newsham[53] where his Honour, Gee J said as follows about separate representatives (now Independent Children’s Lawyers):[54]
I accept that a choice of supervisors should be left to the separate representative. I am content to leave the choice to the separate representative for, as I have said, it is part of the separate representative's duty as analogous to that of counsel assisting a royal commission to assist the carrying out of orders of the court and act unfetteredly and independently for [the child’s] welfare. I refer in this connection to B v R and the Separate Representative (1995) FLC 92-636 at page 82,418.
[53] Samuels & Newsham (Unreported) (1996) (Gee J).
[54] Ibid.
I consider, however, that his Honour’s description of Independent Children’s Lawyers being empowered to “act unfetteredly and independently for [the child’s] welfare” is subject to the power granted to and inherent in the Court to make parenting orders under s 65D(1) of the Family Law Act 1975 (Cth). I accept that it is both possible and desirable for an Independent Children’s Lawyer to make submissions about appropriate handover and supervision if the circumstances of the matter warrant it. (This is consistent with the Full Court’s identification of the role of Independent Children’s Lawyers to “act in an independent and unfettered way in the best interests of the child”).[55] It is, however, a “bridge too far” to suggest that there could be some sort of delegated authority given to an Independent Children’s Lawyer to make a decision about what supervision or handover would be appropriate in lieu of decision by the Court. This is so notwithstanding any conclusion that an Independent Children’s Lawyer and the Court might come to about such arrangements could very well be the same.
[55] B & R & the Separate Representative (1995) FLC 92-636, 82,418 – 82,419 (Fogarty, Kay and O’Ryan JJ).
I accept the Independent Children’s Lawyer’s recommendation that any hand‑over should be the subject of professional supervision. I note the generous offer on behalf of the Chief Executive of DHCS to either provide or assist in the provision of such support initially. However, the situation between the parties may continue for a long time into the future. I cannot at present on the evidence before me conceive of circumstances in which the requirement for a professional hand-over arrangement would not be necessary. It would be unreasonable to request, far less to require, the Chief Executive to provide such an arrangement at the Chief Executive’s cost until the child turns 18.
Accordingly, after whatever introductory arrangement the Chief Executive may be prepared to finance, it will be necessary for the father to arrange for and to pay for the services of a change-over person. Moreover, such a change-over person could not be a member of his family or one of his friends. Dr W has clearly stated “it is not [his] view that [the paternal grandmother] should be relied on as a support person for her son.”[56] In some cases, using a parent to help is the most appropriate course of action. In this case, I am satisfied it could only lead to further dispute between the parties.
[56] Exhibit “J1”, Report of Dr W, 1 August 2008, 18.
Additional submissions required following delivery of judgment
I propose, therefore, when I have delivered this judgment to give the parties a little time to consider their positions before I make final orders. In particular, I believe it would be necessary for the father and the mother and the Independent Children’s Lawyer to address me about the issue of change-over. If the father is able to make arrangements for a professional hand-over person and if he is prepared to agree to fund such an arrangement into the future as a pre-condition to each period of the time that the child would spend with him, then for the reasons I have set out above, it seems to me that a balanced consideration of various factors constituting the child’s best interests would suggest that there should be an order for some time for her to spend with her father.
If, on the other hand, the father is unable to give assurances about that matter, I would have to consider very carefully whether allowing even a transitional period such as is proposed by the Chief Executive would be in the child’s best interests. This is primarily because, if the process is started, it seems to me wrong to terminate it shortly afterwards because of the father’s inability to provide the means for the hand-over. This cannot be in the child’s best interests.
It might be argued by the father that the cost of such supervision should be borne equally between them. I am not prepared to make an order of that sort. It is principally the father’s actions that generate the friction between the parties.[57] I accept that is the weight and thrust of all the evidence before me. In such circumstances, it is he who should be the facilitator and if he is unable or unwilling to do so it would probably not be in the child’s best interests to spend time with him.
[57] The situation is undoubtedly exacerbated by the mother from time to time as I suggested above but the father has provided in my judgement to be the parent most likely to be “volatile” (to borrow his word).
I acknowledge this is a really unpleasant, difficult and unkind choice for the father to have to make. Nevertheless, it seems to me that the fact that he has to make the decision may prompt in the father to a consideration of what value he can add and what benefit (to adopt the words of s 60CC(2)(b) of the Family Law Act 1975 (Cth)) he can bring to the child’s life.
Moreover, I will not accept any submission by the parties that hand-over might be facilitated in a police station. I have strong views about handovers at police stations and the entirely negative message it sends to children. The suggestion is completely impractical in this case as the father has demonstrated in his actions against Mr G in September 2007 that there would be no guarantee that he would act in a controlled or sensible way in such a place.
In light of further submissions: time that might be spent between the father and the child
It may be of assistance to the parties if I were to indicate the sort of time that I have in mind that the child should spend with her father. In my opinion, in conformity with the recommendations of the Independent Children’s Lawyer for the next four months should be on a weekly basis of time during day light hours on a Saturday. In practical terms, it is probably about two hours.
It is appropriate that she should then spend fortnightly time overnight on Friday through to the following Saturday evening with her father for a further period of four months which would take her through to about the time at which she will commence school.
Once she has started to attend school and has settled down for about a month it is appropriate that the time that she spends with her father should start to recommence on each fortnight after school on the Friday and end when she has returned to school on the following Monday morning.
It is also appropriate that at about that time she should commence to spend one half of the school holidays with her father if he is able to accommodate such an arrangement.
Unlike the handovers in relation to term time which would occur at school, handovers required during school holidays would have to occur directly between the parties and these should also have to be the subject of professional supervision paid for by the father.
Again I reiterate that if the father is unable to unwilling to provide for the cost of the professional supervision of the handovers between him and the mother for the child then, in my opinion, the balance of what constitutes the best interests for the child would dictate that there should be no time with her father.
Injunction against the father from saying “unpleasant, unkind or derogatory things” about the mother
One further matter raised by Mr Macpherson on behalf of the mother in this matter was that in accordance with the principles enunciated in Hughes & Hughes[58] I should consider whether it was probable that the conduct of the father during periods of time that he might have with his daughter would involve his undermining the stability of the relationship between her and her mother. There was a probability of this and that he submitted that therefore I should in the words of his Honour Baker J, either suspend time between the parties or that this would be an appropriate case for “refusing access”.[59]
[58] Hughes & Hughes (1980) FLC 90-869 (Baker J).
[59] Hughes & Hughes (1980) FLC 90-869, 75,507 – 75,508 (Baker J).
I accept that there is a risk of this sort of conduct occurring given the father’s almost inexplicable inability to control his impulsive and anti-mother behaviour. However, to deal with such risk, I propose to impose an injunction upon the father from saying unpleasant, unkind or derogatory things about the mother during the time that the child is with him. I have no doubt that either I or any other judicial officer who should have to deal with any breach of such an injunction would treat the matter very seriously and then look to the proposal in Hughes & Hughes that there should be a suspending or refusing of the time that the child spends with her father.
I accept that this may encourage the mother to bring such an application before the Court. I, however, consider that the benefits to the child in being about to have effective time with her father outweighs the potential risk of further litigation in this matter. As I warned the father, so I warn the mother, frivolous or vexatious applications to this Court based on a purported breach of an injunction of this sort will lead to consequences which the mother may find affects her relationship with the child.
CONCLUSION
To enable consideration of this to be undertaken I will adjourn the proceedings to 7 July 2009 at 9am and we will hear further submissions from the father and from the Independent Children’s Lawyer and on behalf of the mother on that day about whether the father is able to be involved in and to finance the arrangements for the future. Nothing in this judgment, however, precludes the parties from reaching agreement about some other arrangement if they believe it to be appropriate and in the child’s best interests, but I will reserve judgment on that issue to the next time the matter is before me.
SUPPLEMENTARY REASONS FOR THE FORM OF ORDERS MADE (delivered 15 July 2009)
Having listened to the submissions of the parties and considered the minutes of orders proposed by them I have set out the orders that I make in this matter. In essence, these orders comply with the indications I gave in paragraphs 115-120 of my judgment above.
I have considered the difficult question of what would happen to the timetable proposed if for whatever reason the father was unable or unwilling to facilitate the supervised hand-overs required. In the end, I have devised a formula which is far from elegant but which I hope conveys clearly to the parties my intention. It is only when the father has facilitated and been involved in 80 per cent of the time that he might spend in any one phase of the time stipulated in the orders that the timetable will move forward.
It is with significant regret that I made orders which would have the effect of excluding special days from any shared arrangement between the parents. I cannot see for the reasons I have indicated in my judgment that such an arrangement is likely to be conflict free. That is very sad.
I have, in consultation with the parties, provided for some degree of limited telephone contact between the child and the parent with whom she is not staying. This will, however, require that parent to provide a mobile phone for the child to take with her to the other parent.
I have provided, as I indicated I would in my judgment, that the mother would have sole parental responsibility for the child but provided some variations to that in relation to the information to be supplied to the father. The father is, however, required not to attend on the school or childcare centre for the child except for the purposes of collecting her to spend time with her in accordance with these orders.
I have previously indicated the mother would have sole parental responsibility and I have also indicated and provided reasons for why I believe the father should be responsible for the payment of the supervised hand-over.
Finally, I turn to the draft orders provided by the father relating to the child’s names. Although I mentioned in my judgment these were issues before me, they were not matters that were in any way advanced by argument or submission during the course of the case and particularly in final submissions and in such circumstances I have no basis upon which to come to a determination in accordance with what the father asks. Accordingly, I declined to make those orders.
I certify that the preceding one hundred and thirty one (131) paragraphs are a true copy of the reasons for judgment of the honourable Deputy Chief Justice Faulks.
Legal Associate:
Date: 15 July 2009
Key Legal Topics
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Family Law
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