Fennessey and Wixon and Ors
[2014] FamCA 677
•22 August 2014
FAMILY COURT OF AUSTRALIA
FENNESSEY & WIXON AND ORS [2014] FamCA 677
FAMILY LAW – CHILDREN – Best Interests – With whom a child lives and spends time– Where the child currently lives with the maternal grandparents – Where the mother seeks that the child live with her and spend time with the father one afternoon a week and on weekends – Where the ICL proposes that the mother, father and maternal grandparents share parental responsibility for the child and that the child live with the maternal grandparents and spends time with the mother and father under separate regimes –Where the ICL proposes that time with the father include overnight time but time with the mother does not – Where the father and maternal grandparents support the proposals of the ICL – Where there has been a finding of family violence – Where the mother’s partner has been convicted of offences falling within the definition of violence – Where the mother’s partner poses a risk of violence to the child both directly and through the risk he poses to others – Where the mother is unable to protect the child and does not recognise the risk that her partner’s dangerous behaviour poses to the child – Where the overwhelming concern is to protect the child from physical or psychological harm from being exposed to the mother’s partner – Where no order for equal or substantial and significant time between the child and each parent is made – Where it is in the best interests of the child that no change in residence is made – Where orders are made in line with the ICL’s proposal for the child to continue living with the grandparents and spend time with the mother and father under separate regimes – Where an order is made that the child cannot be exposed to the mother’s partner.
Family Law Act 1975 (Cth) ss 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAA, 65DAC
Champness & Hanson (2009) FLC 93-407
McCall & Clark (2009) FLC 93-405
APPLICANT FATHER: Mr Fennessey
1st RESPONDENT MOTHER: Mr Wixon 2nd & 3rd RESPONDENTS MATERNAL
GRANDPARENTS:Mr B Wixon
Ms C
INDEPENDENT CHILDREN’S LAWYER: Sarah Bevan Family Lawyers
FILE NUMBER: NCC 2937 of 2012
DATE DELIVERED: 22 August 2014
PLACE DELIVERED: Sydney
PLACE HEARD: Parramatta
JUDGMENT OF: Loughnan J
HEARING DATE: 21 – 24 July 2014 REPRESENTATION
APPLICANT FATHER: Litigant in Person
1ST RESPONDENT MOTHER: Litigant in Person
2ND & 3RD RESPONDENTS MATERNAL
GRANDPARENTS:
Litigants in Person
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms L Sproston
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sarah Bevan Family Lawyers Orders
1)That all previous parenting orders in respect of D born … 2009 (“the child”) be vacated.
Parental Responsibility
2)That the father, mother and the second and third respondents (“the maternal grandparents”) have equal shared parental responsibility for the child.
Living Arrangements
3)That the child live with the maternal grandparents.
Time with the Father
4)That until the child commences school in 2015 he spend time with the father:
a)Each weekend from 4.00 pm on Friday until 3.00 pm on Sunday.
b)On Christmas Day 2014 for a period of three hours as agreed between the father and maternal grandparents, and failing agreement from 12.00 pm until 3.00 pm.
c)At such as other times as may be agreed between the father and the maternal grandparents.
5)That after the child commences school in 2015 the father spend time with the child as follows:
a)During the school term, from the conclusion of school on Friday until 5.00 pm on Sunday each alternate weekend, to commence on the first Friday after the commencement of the school term.
b)During the Christmas school holidays for two one week blocks of time as agreed by the father and the maternal grandparents and if not agreed from 9.00 am on the second and fourth Saturdays of the school holidays to 9.00 am on the following Saturday.
c)During the other school holidays for one week as agreed by the father and the maternal grandparents and if not agreed from 9.00 am on the first Saturday to 9.00 am on the second Saturday of the school holidays.
d)From 9.00 am to 5.00 pm on Father’s Day.
e)For a period of three hours on 25 December, and failing agreement from 12.00pm to 3.00pm;
f)On 12 July from 6.00 pm to 8.00 pm if it is a school day and from 10.00 am until 1.00 pm if it is not a school day.
g)At such other times as may be agreed between the father and maternal grandparents.
6)That the Father’s time with the child be suspended on the following days and times, to enable the child to spend those times with the mother:
a)On Mother’s Day from 9.00 am to 5.00 pm.
b)On 12 July from 4.00 pm to 6.00 pm if it is a school day and from 1.00 pm to 4.00 pm if it is not a school day.
7)That for the purposes of changeover, except when the father is to collect the child from school at the commencement of time and return the child to school at the conclusion of time, changeover is to be agreed between the father and the maternal grandparents or in default of agreement the father shall cause the child to be collected from the maternal grandparents residence at the start of his time and the maternal grandparents shall cause the child to be collected from the father’s residence at the conclusion of the father’s time.
Time with the Mother
8)That until the child commences school in 2015 he spend time with the mother:
a)Each Tuesday and Thursday, except not on 25 December 2014, for a period of eight hours as agreed by the mother and maternal grandparents, and failing agreement from 9.00 am to 5.00 pm.
b)On Christmas Day 2014 for a period of three hours as agreed between the mother and maternal grandparents, and failing agreement from 3.00 pm until 6.00 pm.
c)At such other times as may be agreed by the mother and maternal grandparents in writing (with writing to include email or text message).
9)That after the child commences school in 2015, he spend time with the mother:
a)During the school term, from the conclusion of school to 6.00 pm each Tuesday.
b)During the school term, from 9.00 am to 5.00 pm on Saturday and Sunday each alternate weekend, to commence on the second Saturday after the commencement of the school term.
c)During the Christmas school holidays on each of a total of 14 days (not including Christmas Day) from 9.00 am to 5.00 pm each day, such days as agreed by the mother and the maternal grandparents and if not agreed such days shall consist of two blocks of seven days each commencing the third and fifth Saturday of the school holidays.
d)During the other school holidays on each of seven consecutive days from 9.00 am to 5.00 pm as agreed by the mother and the maternal grandparents and if not agreed commencing from 9.00 am on the second Saturday of the school holidays.
e)From 9.00 am to 5.00 pm on Mother’s Day.
f)For a period of three hours on 25 December, and failing agreement from 3.15 pm to 6.15 pm;
g)On 12 July from 4.00 pm to 6.00 pm if it is a school day and from 1.00 pm to 4.00 pm if it is not a school day.
h)At such other times as may be agreed between the mother and maternal grandparents in writing (with writing to include email or text message).
10)That the mother’s time with the child be suspended on the following days and times, to enable the child to spend those times with the father:
a)On Father’s Day from 9.00 am to 5.00 pm.
b)On 12 July from 6.00 pm to 8.00 pm if it is a school day and from 10.00 am to 1.00 pm if it is not a school day.
11)The mother’s time with the child is conditional upon her not permitting the child to spend time with, communicate with or have any contact with Mr E and not permitting or enabling Mr E to approach the child, the maternal grandparents’ residence, the father’s residence, the child’s preschool or school or any other location where the child may be.
12)That for the purposes of changeover, except where the mother is to collect the child from school at the commencement of her time, and unless otherwise agreed between the mother and maternal grandparents in writing (with such writing to include text message or email), the parties shall effect changeover at Westfield, Suburb F.
General
13)That the time spent by the mother and father with the child shall be suspended during up to two school holiday periods a year when the maternal grandparents arrange to take the child on a holiday, provided that such holidays are of not more than two weeks duration and the maternal grandparents give to the mother and father not less than one month written notice that they intend to take the child on such a holiday.
14)That the mother and father each have reasonable telephone communication with the child when he is in the care of the maternal grandparents as agreed between the mother and the maternal grandparents and the father and the maternal grandparents.
15)That all parties shall keep the others informed of their contact telephone numbers and addresses and shall notify the other parties of any change to those details prior to such changes or as soon as practicable immediately thereafter.
16)That from 2015, unless the mother, father and maternal grandparents otherwise agree, the child shall attend the Suburb G School.
17)That the mother, father and maternal grandparents shall be entitled to attend all events involving the child including:
a)Sporting fixtures;
b)Extra-curricular activities which allow for parental attendance; and
c)School functions and events that allow for parental attendance, including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.
18)That each party is authorised by these Orders to obtain from the pre-school and school that the child attends copies of the child’s pre-school and school or other progress reports, school photographs (at the cost of the party requesting the photos) and examination results, notices of parent/teacher meetings, school assemblies, sport and swimming carnivals and any other school activities to which parents are invited to attend and any other correspondence, newsletters and notices as they fall due.
19)That each party keep the other parties informed of their residential address and notify the other parties of any change to the residential address at least 14 days in advance of any change.
20)Any treating practitioner engaged with the child is hereby authorised to provide the other parties with reports concerning the treatment of the child.
21)That each party inform the other parties as soon as is reasonably practicable if the child is hospitalised at any time or is required to attend upon a medical professional to seek emergency medical treatment.
22)Each party is restrained from discussing these Court proceedings with the child and from showing the child any documents relating to these Court proceedings and each party must use their reasonable endeavours to ensure that no other person discusses these Court proceedings with the child or shows the child any documents relating to these proceedings.
23)Each party is restrained from denigrating or insulting the other parties, persons with whom the other parties are in a domestic relationship, or members of the other parties’ families in the presence or hearing of the child and each party must do all things reasonably necessary to ensure that no other person denigrates or insults the other parties, persons with whom the other parties are in a domestic relationship or members of the other parties’ families in the presence or hearing of the child.
24)Pursuant to s 62B and s 65DA(2) of the Family Law Act1975 (Cth) (“the Act”), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
25)Leave is granted to the parties to apply within 28 days, on giving at least seven days’ notice to the Court and each other in relation to the phrasing of these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fennessey & Wixon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
FAMILY COURT OF AUSTRALIA AT FILE NUMBER: NCC 2937 of 2012
Mr Fennessey Applicant Father
And
Mr Wixon Respondent Mother
And
Mr B Wixon Second Respondent Maternal Grandfather
And
Ms C Third Respondent Maternal Grandmother
And
Independent Children’s Lawyer REASONS FOR JUDGMENT
Introduction
1.These are parenting proceedings in relation to D (“the child”) who was born in 2009 and at the time of the hearing, was five years of age. The parties to the proceedings are each of his parents and his maternal grandparents. The main issue in the proceedings is whether the child should live mainly with his maternal grandparents or with his mother.
Applications
2.The father set out the orders he sought in his affidavit. He sought that the child continue to live with the maternal grandparents during the week and that he spend time with the child each Wednesday afternoon and on every weekend from after pre-school on Friday afternoon until Sunday afternoon. He sought that the mother spend time with the child as the Court may order. However, at the conclusion of the proceedings the father did not speak against the orders ultimately proposed by the Independent Children’s Lawyer (“ICL”), which orders were also supported by the maternal grandparents.
3.The respondent mother sought orders including the following:
a)That the child live with the mother.
b)That the child spend time with the father:
i)Between 5.00pm Friday to 7.00pm Sunday on each alternate weekend commencing on the first weekend of the school terms for Schools in the state of New South Wales.
ii)Between 6.00pm and 7.00pm on each alternate Wednesday commencing the first weekend of school term.
iii)Between 5.00pm of the first Saturday to 9.00am of the second Saturday of the mid year school vacations.
iv)Between 9.00am 1 January to 9.00am 15 January each year.
v)Between 1.00pm to 7.00pm on Christmas day in even numbered years.
vi)Between 9.00am and 1.00pm on Christmas day in odd numbered years.
vii)Between 4.00pm and 7.00pm on each of the following days:
(i)12 July; and
(ii)14 October.
viii)Other times by arrangement in writing pursuant to orders a(i) and (ii).
c)That regular time be suspended during school vacations and Christmas vacations and recommence on the first weekend of school term.
d)That the child spend the following times with the maternal grandparents:
i)Between 1.00pm and 7.00pm on one Sunday each calendar month when he is not with his father.
ii)Other times by agreement in writing.
e)For the purposes of effecting changeover the First Respondent/Mother is to deliver the child to the McDonalds Family Restaurant at Suburb H to the Applicant Father and he is to return the child there at the conclusion of such times.
f)For the purposes of effecting changeover the Mother is to deliver the child to the Maternal Grandparents at McDonalds Family Restaurant at Suburb I and the Maternal Grandparents shall return the child to the mother at the same venue at the conclusion of such times.
4.The mother’s documents did not address parental responsibility. During submissions she confirmed that she sought that she and the father equally share parental responsibility. She conceded that in the event that the child lived mainly with the maternal grandparents, they too would need parental responsibility.
5.The ICL assisted the maternal grandparents to settle a document[1] reflecting the orders they sought which were to the following effect:
·D to live with the maternal grandparents and spend time with the mother each Tuesday from 3.00 pm – 6.00 pm and every alternate Sunday for six hours.
·The mother’s time would be conditional on her being restrained from permitting contact or communication between Mr E or any member of his family and the child.
·The father to spend time with the child for part of each weekend, including overnight. They sought arrangements for the parents’ time to be suspended in order that they could have holidays with the child. They sought provision for the parents to share special days.
[1] Exhibit 5
6.However, in the course of final submissions the maternal grandparents supported the orders proposed by the ICL, save that they pressed for the continuation in final form, of Order 3 made on 9 September 2013, restraining the mother in respect of the child’s contact with the mother’s fiancé, Mr E and members of his family.
7.The ICL sought orders in the form of a minute of orders provided before final submissions. She proposed that each of the parents and the maternal grandparents equally share parental responsibility for the child, save that there be a default position in relation to the primary school that he will attend from 2015 in favour of Suburb G School. She proposed that the child live with the maternal grandparents and spend time with each parent under separate regimes that will change when the child commences school. She proposed that the time with the father include overnight time but that the time with the mother does not. She sought that the mother’s time be conditional on the mother being restrained from permitting the child to have any contact with Mr E or permitting or enabling Mr E to approach the child or his residence or location from time to time. The ICL also proposed specific orders about communication and general matters.
Written Evidence
8.The applicant father relied on:
·Notice of Abuse, Family Violence or Risk of Family Violence filed 15 November 2012.
·Affidavit of Mr Fennessey filed 7 July 2014.
9.The respondent mother relied on:
·Affidavit of Mr Wixon filed 18 July 2014.
·Affidavit of Mr Wixon filed 7 July 2014.
·Affidavit of Mr E filed 7 July 2014.
·Affidavit of Ms J filed 7 July 2014.
·Affidavit of Mr K filed 7 July 2014.
10.The second and third respondents relied on:
·Affidavit of Ms C filed 30 October 2012.
·Affidavit of Mr B Wixon filed 30 October 2012.
·Affidavit of Ms C filed 23 November 2012.
·Affidavit of Mr B Wixon filed 23 November 2012.
·Affidavit of Ms C filed 6 December 2012.
·Affidavit of Ms C filed 18 December 2013.
·Affidavit of Ms C filed 3 July 2014.
Expert Evidence
11.The following expert evidence was relied on:
·Assessment of Ms L dated 21 February 2013.
·Family Report of Ms L dated 19 August 2013; and
·Report of Dr M dated 8 June 2013 in respect of the maternal grandfather.
The Hearing
12.The hearing commenced on 21 July 2014. At the commencement of the hearing the solicitor for the mother sought leave to file a Notice of Ceasing to Act and without objection, was excused. That meant that save for the ICL, all of the parties were unrepresented. The hearing was listed for five days but occupied only four days. Even then the hearing only took up two hours on the third day and at about 1.00 pm on the fourth day, judgment was reserved. The shortening of the hearing to the equivalent of three days hearing time was caused by the limited roles played by the father and the maternal grandparents. Other than being cross-examined, the father and the maternal grandparents took little active part in the hearing. As would be expected where the other parties were unrepresented, the ICL’s counsel undertook the main running of the trial although the mother cross-examined the other witnesses and albeit very briefly, made oral submissions. I was greatly assisted by the polite cooperation of the parties and witnesses and by the measured and professional preparation and presentation of the ICL’s case.
Short History
13.In 1989 the father was born. As at the date of the hearing he was 24 years of age. In 1990 the mother was born. As at the date of the hearing she was 23 years of age. The parents met in 2007 and separated on a final basis in January 2012. There is one child of their relationship, namely D who was born in 2009 and at the time of the hearing, was five years of age.
14.The maternal grandparents, Ms C born in 1970 and Mr B Wixon born in 1969, are also parties to the proceedings. They are 43 and 44 years of age, respectively.
Credibility and Submissions
15.There was little or no cross-examination by the father or maternal grandparents. Much of the cross-examination by the mother was ineffective. The court was assisted by cross-examination by learned counsel for the ICL.
16.The evidence of the father was not the subject of successful challenge on any important issue.
17.The maternal grandfather was cross-examined by the ICL’s counsel and by the mother. He was not successfully challenged on any important issue.
18.The maternal grandmother was not successfully challenged on any aspect of her evidence. Some of her evidence that was challenged had independent corroboration.
19.The mother was not a credible witness. Learned counsel for the ICL identified a number of areas in which her evidence proved unreliable. Importantly, I accept that:
·The mother’s allegation of a history of violence inflicted on her by the father was not supported by objective evidence or by her prior statements.
·The mother told the Family Consultant in June 2013 that she no longer had any contact with the family of Mr E. The fact is that apart from periods renting her own property and living with her parents, she lived with Mr E’s parents from November 2012 until she and Mr E moved into their Suburb N property, a few weeks before the hearing. There is also extensive evidence that she was transported and accompanied by Mr E’s parents on many occasions since June 2013.
·She told the Family Consultant in February 2013 that Mr E had “given away” his association with the O Club. Mr E was in gaol from October 2012 until January 2014. From January 2014 until April 2015 one of his bail conditions requires him not to associate with the O Club. That said, there is no evidence from Mr E or anyone else to suggest that he does not maintain that affiliation and when he is permitted, that he will not resume his active involvement with the club.
·She deliberately set out to minimise the seriousness of certain incidents. For example, in February and June 2013 she told the Family Consultant that the events of 20 October 2012 were blown out of proportion, summarising her injuries as a scratched toe. Her statement to the staff at Suburb P Hospital at the time and the statement of agreed facts that was the basis of Mr E’s plea of guilty to five charges of intimidation, demonstrate that the mother sought to mislead this Court on that issue. Ultimately, the mother agreed that her evidence was inconsistent with the agreed statement of facts.
·The mother’s version of events during gaol visits to Mr E is entirely inconsistent with the Corrective Services record both as to the import of the incidents and the number of them.
·The mother’s statement to the Family Consultant reported at paragraph 24 of the Family Report substantially understated Mr E’s criminal history and his controlling behaviour. It is clear that the understatement was not accidental as she expressed a very different view on 20 October 2012. She told Suburb P Hospital[2] that: “[Mr E] is currently on a suspended sentence ‘for fighting’ and has been in gaol before for violent offences. She is aware of violence in his previous relationship with the mother of his daughter.” And “[Ms Wixon] states that there have been no previous incidents of violence since they have been together but that [Mr E] is controlling and jealous.”
[2] Exhibit 8 - Consult Note Suburb P Hospital.
20.Mr E was not a credible witness. Again, learned counsel for the ICL identified a number of areas in which his evidence had proven unreliable. Importantly, I note:
·Mr E denied that he had been the President of the Q Town Chapter of the O Club. He signed an intake sheet for Corrective Services on which he indicated that he was the President of the club. The mother told the Family Consultant the same thing in February 2013. The most likely reason for those things is that he was the President.
·As with the mother’s evidence, his version of events during gaol visits which lead to those visits being restricted, is entirely inconsistent with the Corrective Services record both as to the import of the incidents and the number of them.
·His evidence about his consumption of alcohol and illicit drugs is inconsistent with official records and prior statements[3].
[3] See exhibits 16 & 17.
21.There was no real challenge to the credit of Ms J or Mr K. The disputes in relation to their evidence relate to matters of perception or characterisation, rather than credibility. The evidence of Ms J and Mr K was challenged in relation to an incident at the car park opposite the Family Law Courts Registry in Newcastle on 23 November 2012. It is the evidence of the maternal grandmother that Ms J and Mr K intimidated her and the maternal grandfather by blocking their exit from the car park and by making certain threats. The sworn statement[4] of a witness to the event supports the contention that the intervention of Mr K & Ms J was intimidating. Whether done deliberately or not it was conceded that the mother’s car (driven by Ms J) was stopped, in a position that blocked the exit of the maternal grandparents’ vehicle. While Ms J said she only said something to the mother, Mr K admitted that he probably intervened in the incident, saying something to the maternal grandmother like “how could you do this to your daughter?” Of course, it is possible that the maternal grandparents felt intimidated but Mr E’s parents did not intend to intimidate them.
[4] See the evidence of Mr U dated 24 November 2012 – Exhibit 6.
22.Ms L gave evidence as an expert and her credibility was not challenged.
Background Facts
23.The mother and father began their relationship in 2007 and soon after commenced co-habitation, living with the maternal grandparents at Suburb R in the NSW Region S.
24.D was born in 2009.
25.From 2009 to 2011 the father, mother and the child lived with the maternal grandparents. In November 2011 the maternal grandparents purchased a four bedroom house in Suburb P.
26.In late 2011 a fight occurred between the father and the maternal grandfather. The mother and father subsequently moved out of the maternal grandparents’ home to rented accommodation at Suburb T.
27.In October 2011 the mother obtained employment, working weekend shifts as a promotional model. The child was cared for by either the maternal grandmother or the father while the mother was at work.
28.In January 2012 the mother and father separated. They agreed that the child would live with the mother and spend time with the father for a few afternoons a week and each alternate weekend.
29.From January to July 2012 the mother and the child lived with the maternal grandparents and the father lived in shared accommodation with friends.
30.In early 2012 the mother and Mr E commenced a relationship. Mr E had a three year old daughter, V who lived mainly with her mother. He was a member of the O Club and had been convicted of two counts of assault and in October 2010 was sentenced to an 18 month bond.
31.On 6 February 2012 Mr E was convicted of possession of a knife in a public place and breach of his bond. He was placed on a 12 month bond.
32.On 23 February 2012 Mr E was convicted of resisting arrest and contravention of a bond order. He was placed on an 18 month bond.
33.In May 2012 the mother and father had a disagreement that resulted in the mother refusing to allow the father to see the child.
34.In July 2012 the mother and Mr E started living together, living with the child at the home of Mr E’s parents in Suburb W.
35.Later in 2012 the mother, the child and Mr E moved to rented premises in Region S.
36.An incident occurred between the mother and Mr E on 20 October 2012. The incident is detailed more fully later in these reasons but in summary:
·The mother and Mr E were arguing in a car while driving from the Suburb P Club. The mother was intoxicated and wanted to go out clubbing.
·The argument continued leading to the mother getting out of the car and later, jumping out of the car while it was moving. Mr E put her back in the car.
·Mr E was arrested and charged by police and the mother was hospitalised.
37.From 20 October 2012 to 4 October 2013 Mr E was held on remand.
38.On 30 October 2012 these proceedings were commenced when the father filed his Initiating Application seeking orders for the child to live with him and to spend time with the mother, supervised by the maternal grandparents.
39.At some point soon after 20 October 2012, the mother moved back to live with Mr E’s parents.
40.On 8 November 2012 the mother was asked to sign a statement by a Detective X in relation to the incident on 20 October 2012. The mother refused and claimed she was both intoxicated and on morphine when she first spoke to the police about the incident. It was asserted, without complaint on behalf of any party, that the hospital records did not bear out the mother’s assertion about morphine. Similarly it was noted that the mother gave different accounts of the amount of alcohol she consumed on the day.
41.On 23 November 2012 interim orders were made in the Federal Circuit Court at Newcastle for the child to live with the father, to be cared for by the maternal grandmother while the father was at work. The mother was required to cause the child to be delivered to Suburb W Police Station by 6.00 pm for collection by the maternal grandmother. The maternal grandmother claimed that on the same day the mother damaged her car and assaulted her, leading her to take out an Apprehended Domestic Violence Order. That incident is discussed more fully later in these reasons.
42.On 10 December 2012 interim orders were made for the mother to spend time with the child at a supervised contact centre.
43.In February 2013 the child and the mother commenced spending time together at the Suburb P Contact Centre for two hours per fortnight.
44.On 22 February 2013 interim orders were made by consent for the mother to spend time with the child each Monday between 10.00 am and 5.00 pm supervised by the maternal great grandmother, Ms Y (“Ms Y”).
45.The mother spent time with the child supervised by Ms Y on two occasions in March 2013, until Ms Y declined to participate further.
46.In mid 2013 an incident occurred at the prison where Mr E was serving time. Mr E and the mother were accused by a prison officer of engaging in sexual behaviour during visits. Mr E argued with the prison officer and visit restrictions were put in place so that Mr E could only see visitors in a non-contact section of the prison.
47.For a period of about three months the mother returned to live with the maternal grandparents.
48.On 9 September 2013 interim orders made by consent for the mother and the child to spend unsupervised time as agreed between the mother and the maternal grandparents. An order was also made restraining the mother from permitting any member of the E family to have any contact with the child or to approach him.
49.In respect of the events on 20 October 2012 Mr E pleaded guilty to five charges of intimidation, two of which involved the use of an offensive weapon – a motor vehicle. On 4 October 2013 Mr E was sentenced to 30 months imprisonment with a non parole period of 15 months. With allowance for time on remand, Mr E was ultimately released on parole on 19 January 2014.
50.The maternal grandmother deposed that on 29 October 2013 the mother called the child a “little bastard” while at the maternal grandmother’s home. The maternal grandmother asked the mother to leave her home which resulted in an argument between the mother and maternal grandmother.
51.On 25 November 2013, Sergeant Z attended the maternal grandparents’ home. He advised the maternal grandparents that the mother had made a complaint that the maternal grandfather had made a threat against Mr E’s life. After interviewing the maternal grandparents, Sergeant Z advised them that he considered the allegations to be false.
52.On 27 November 2013 the mother was sentenced to 250 hours of community service in Suburb AA Local Court for driving while disqualified. On the same day, the maternal grandmother said the mother swore at her and threatened to punch her in the face. She said the mother also threatened to kill herself. The mother rejected that evidence.
53.On 4 December 2013 the mother was at the maternal grandparents’ home and received a call from Corrective Services – presumably from Mr E. The maternal grandmother noticed the mother crying. The mother said to maternal grandmother that she could not take it anymore, that she was sick of it and could easily jump off “[the point]”.
54.On 18 December 2013 interim orders were made for the mother to spend time with the child every Tuesday and Thursday from 2.00 pm to 5.00 pm.
55.On 18 December 2013 the maternal grandfather made a report to police that he felt threatened by Mr K while at the Family Court.
56.Mr E was released on 19 January 2014 and the mother and Mr E recommenced cohabitation at the home of Mr E’s parents at Suburb W.
57.On 8 April 2014 the mother did not attend to spend time with the child.
58.The mother and Mr E attended at the father’s home about three weeks before the hearing. The father gave evidence to the effect that another person attended with them and that a threat was made to him to the effect that, if he did not change his application opposing the child being exposed to Mr E, then his house would be burnt down. The mother cross-examined the father about those two assertions. The father did not report the threat to the police or volunteer evidence about the incident in these proceedings. He said that he did not want to involve the police. As is recorded below, the mother and Mr E were not creditworthy witnesses. In any event I am inclined to accept the father’s evidence, because he was not successfully challenged on any other important aspect of his evidence and also because he did not volunteer this part of his evidence. He did not give this evidence in chief and did not take up an earlier opportunity to give it during cross-examination. It only arose because of something apparently reluctantly volunteered by the maternal grandfather and after the father was recalled to the witness box.
59.At present, the child lives with the maternal grandparents and spends weekends and one night in the alternate week with the father. The mother and Mr E live in a leased property at Suburb N in Region S and are expecting a child in October 2014. I am satisfied that Mr E remains a member of the O Club but his bail conditions prevent him associating with the club until April 2015.
The Expert Evidence
60.The single expert family consultant was Ms L. Ms L has a bachelor degree in Psychology and a post graduate diploma in Forensic Psychology.
61.Ms L worked as a Child Protection Caseworker from 2003 to 2005, as an intern psychologist with a welfare house for children from 2005 to 2007, as a Psychologist from 2007 to 2008 and as Child Protection Coordinator from 2008 to 2010. She is a Family Consultant with the Family Law Courts at Parramatta.
62.Ms L prepared a Child and Parents Issues Assessment in these proceedings on 21 February 2013 and a Family Report dated 19 August 2013.
The Legislation
63.The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
64.Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests. Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.
65.The sequence of decision making for identifying appropriate parenting orders starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of the parents having equal shared parental responsibility. The presumption may not apply but if it does apply, it can be rebutted. If an order will be made for parents to have equal shared parental responsibility, s 65DAA requires that the court consider making an order that the parents have equal time and if that is not ordered, for each of them to have substantial and significant time. Findings are made by reference to what is in the child’s best interests.
66.For the purposes of the presentation of these reasons, I will:
a.set out the proposals, including any options not advanced by a party that the parties addressed or could have addressed;
b.where possible and relevant, consider and make findings about matters set out in s 60CC;
c.consider and make findings about parental responsibility, including considering the presumption in s 61DA;
d.apply s 65DAA if relevant and assess the proposals in light of that provision;
e.if s 65DAA is not relevant, assess the proposals against the best interests criterion;
f.consider and make findings about living arrangements; and
g.make orders.
The Parties’ Proposals
67.As is set out above, the ICL proposed that each of the parents and the maternal grandparents equally share parental responsibility for the child, save that there be a default position in relation to the primary school that he will attend from 2015 in favour of Suburb G School. She proposed that the child live with the maternal grandparents and spend time with each parents under separate regimes that will change when the child commences school. She proposed that the time with the father include overnight time but that the time with the mother does not. She sought that the mother’s time be conditional on the mother not permitting the child to have any contact with Mr E or permitting or enabling Mr E to approach the child or his residence or location from time to time. The ICL also proposed specific orders about communication and general matters.
68.The maternal grandparents support the ICL’s proposals save that they also seek an order in accordance with an interim order made on 9 September 2013 in the following terms:
That in relation to the mother’s partner or former partner, Mr E and any member of his immediate family including Mr K, Ms J, Ms BB, the mother is restrained from:
a) Permitting or enabling the child to spend time with, communicate with, or have any contact with the named people;
b) Providing any information to the named people about the child;
c) Communicating with any of the named people while the child is in her presence or hearing;
d) Permitting or enabling any of the named people to approach her, the child, the grandparent’s residence, the father’s residence, the child’s preschool or any other location where the child may be.
69.The father supported the application of the maternal grandparents. However, in the course of final submissions he did not seek to be heard against the orders proposed by the ICL and ultimately agreed to by the maternal grandparents.
70.The mother sought that she and the father have equal shared parental responsibility for the child and that he live with her. I note that in the event that the child is to live predominantly with the maternal grandparents, the mother conceded that they too should have equal shared parental responsibility.
71.The mother sought that the child spend time with the father, in addition to some special days, on alternate weekends, Wednesday evenings and for one week of school vacations. She sought that the child spend time with her parents for six hours on one Sunday each month, being a Sunday when the child is not spending time with his father. Changeover with the father was proposed at Suburb H and with her parents, at Suburb I.
72.The main areas of dispute seem to be:
a)Whether the child lives primarily with the mother or with the maternal grandparents;
b)What times the child spends with the other parties; and
c)Whether any restrictions should apply to the child’s time with any party, particularly in relation to his contact with the mother’s fiancé, Mr E and the members of his family.
Section 60CC Considerations
73.Section 60CC specifies the following considerations:
Primary considerations:
(2)(a) the benefit to the child of having a meaningful relationship with both of the child‘s parents
74.A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.[5] That enquiry is “prospective” which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[5] McCall & Clark (2009) FLC 93-405.
75.The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. The expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.[6]
[6] Champness & Hanson (2009) FLC 93-407.
76.All of the parties seek that the child spend time with each of his parents. There is no application for that time to be supervised. Although it has not consistently been the case in these proceedings, each of the parties has on occasions endorsed the importance of the relationship between the child and each of his parents. Importantly, the mother told Suburb P Hospital in October 2012 that she and the father do not’ talk but they do not’ argue and he (the father) is great with the child. The maternal grandmother had no hesitation in saying that if the mother was not in contact with Mr E then the Court should order that the child live predominantly with her. Until 19 November 2012, the child always lived with his mother. He has lived for a similar period with his maternal grandparents but that is not the focus of this provision. The Family Consultant reported that the child appeared to have strong and positive relationships with all of the parties.[7] That obviously includes the parents.
[7] Paragraph 54 of the Family Report.
77.The Family Consultant recorded loving and appropriate interactions between the child and each of his parents. However, she noted that during the observation of mother and son, the mother sought reassurance from the child. She noted that the child did not seem discomforted by the incident but warned about the risk that such behaviour could be a problem as the child got older. The mother was asked about that issue in cross-examination and explained that she had been kept apart from the child for substantial periods and was upset. The Family Consultant conceded that the mother’s apparent insecurity could be the temporary result of their separation.
78.There is meaning in the relationships between the child and each of his parents.
79.This factor favours the mother’s application.
(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
80.‘Abuse’ and ‘family violence’ are defined terms.
“abuse” , in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
81.Section 4AB provides:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member‘s family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child‘s family towards another member of the child‘s family; or
(b) seeing or hearing an assault of a member of the child‘s family by another member of the child‘s family; or
(c) comforting or providing assistance to a member of the child‘s family who has been assaulted by another member of the child‘s family; or
(d) cleaning up a site after a member of the child‘s family has intentionally damaged property of another member of the child‘s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child‘s family by another member of the child‘s family.
82.Section 60CC (2A) deals with the weight to be given as between the primary considerations:
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
83.The mother alleges that the father was violent to her. She did not refer to that issue in either of her affidavits but in February 2013, she told the Family Consultant that the father “has been abusive towards her over the telephone in the past.” She claimed that the father had “treated [her] worse in the past than [Mr E] ever had” and “had “pushed [her]” numerous times and had been the subject of two interim AVO’s. There was only one interim AVO restraining the father. In cross-examination the mother conceded that fact. The Family Consultant was asked about the accuracy of her report in this respect and could not be certain about accuracy of the reference to more than one AVO.
84.As to the absence of any evidence about alleged violence by the father towards her in her affidavits, although the mother was unrepresented during the trial, I note that the affidavits were drawn when she was represented and by her former solicitor. The most likely reason for the allegations not to be detailed in her affidavits is that, save for March 2011, there were no other incidents.
85.On 8 March 2011 the police were called to the mother’s home. This was a few days after the parents’ separation. The father arrived at about 6.50 am to pick up his work clothes. The mother reported[8] that he banged on the windows and called the mother names. The mother told the police that he had never threatened her with physical harm before and now suddenly had threatened physical harm to her. That casts doubt on the mother’s allegations of a history of violence.
[8] NSW Police records - Exhibit 3.
86.Finally, I note that the mother seeks orders whereby the child would spend time with the father including overnight, each alternate weekend. She does not seek that the father be restrained in any way. I take it that whatever were her past concerns, the mother does not fear for the safety of the child with the father.
87.The father filed a Notice of Abuse on 16 November 2012. The risk identified related to family violence. The relevant facts in the Notice were:
1.That the mother was allegedly kidnapped and assaulted by Mr E on 20 October 2012;
2.That there was a resultant AVO against Mr E protecting the child, the mother and the maternal grandfather; and
3.Within 2 days of the incident, the mother returned with the child to live with Mr E’s parents.
88.A critical incident in the proceedings was the incident involving the mother and Mr E on 20 October 2012.
89.There is an authoritative version of the events from the perspective of Mr E. He was convicted of five charges of intimidation based on a statement of agreed facts[9]. In summary:
[9] Exhibit 11.
·At about 8.15 pm the mother drove herself to the Suburb P Club to meet Mr E.
·She was dressed in a white dressing gown as she had not yet finished getting ready to go out. She told her friend, Ms CC that she was meeting Mr E in an attempt to ‘make him happy’.
·Ms CC reported that Mr E started yelling at the mother. Ms CC tried to get the mother back into her car when Mr E yelled at Ms CC “You know that I’ll shoot your friend. If you don’t leave I’ll shoot you and [Ms Wixon]”. Security officers at the club witnessed that incident. Mr E drove off with the mother. Ms CC called the police.
·At 8.30pm two witnesses saw the passenger door of Mr E’s car open and heard the mother screaming.
·The witnesses later heard the mother screaming again and saw her walking. Mr E ran after her and the mother was crying, saying: “leave me alone”. The witnesses approached the mother and Mr E said something to them about ‘shooting’ them.
·The witnesses were comforting the mother when Mr E drove at the three women, forcing them to run away. They evaded him trying to hit them with his car. Mr E got out of his car and the three women ran away.
·Mr E came up to them and grabbed the mother. The witnesses pulled her away from him. A male came out of nearby units complaining about the commotion. The mother walked towards Suburb P Railway Station and Mr E returned to his car.
·Mr E drove at one of the witnesses who ducked behind a pole. Mr E swerved out of the way. Mr E then drove at the other witness who was following the mother. The witness ducked out of the way.
·Mr E ran towards the mother at the station. He put his arm around her and lead her back to his car.
·The mother reported that Mr E accused her of having an affair and wanting to leave him.
·Mr E told the mother to ring her parents. She did so and said on the phone: “I’m frightened. Make sure the child is OK. I’m in the car with Mr E”, Mr E then threatened the maternal grandfather. He said: “I am going to blow up your house, I’ll spray your house, I’ll get the noms to come up”. The statement records that “noms” are known to be nominated members of the club.
·Mr E made several more threats to harm the maternal grandfather and his family, causing the maternal grandfather to fear for the safety of himself and his family.
·Shortly afterwards Mr E attended a car park in Suburb H and made a phone call. The mother told the police that she vomited because of the situation. Mr E started to drive again but was soon identified by police travelling north on DD Street. The vehicle was stopped by police and Mr E was arrested. He was taken to Suburb P police station where an ambulance officer attended to a cut above his eye. He declined to be interviewed and was then charged.
90.The mother described the incident in her affidavit as follows:
·On 20 October 2012 the mother woke up. She and Mr E were to spend the day together.
·Mr E had been out all night and she could not rouse him.
·She packed bags for herself and the child and travelled to Suburb P. The maternal grandmother collected them. The father called and collected the child.
·That afternoon the mother visited a friend, Ms CC, at Suburb EE. Mr E rang and they arranged to meet at the Suburb P Club.
·When they met at the bowling club, the mother had “consumed a considerable amount of alcoholic beverages, vodka cruisers”. The mother said she consumed eight cans of vodka cruiser and a couple of glasses of wine at her friend’s house and at her parents’ house before that. She and Mr E gave each other a cuddle.
·The mother and Mr E had a conversation wherein the mother asserted that she intended to go to a night club and Mr E said she was drunk and “you’re not going out in the state that you are. Look at you.” Mr E insisted he would take her back to Sydney and after refusing, ultimately the mother got in his car. They argued in the car. The mother said she got out of the car and started walking to Suburb P Station when a car pulled up with young guys in it. One of the young guys yelled out “because I was in a short dressing gown and I was walking on the streets at night time”.
·Mr E pulled up near her and told her to get back in his car, which she did. They drove around the Region S for a while and she told him to let her out. He refused and she “jumped out of the car like a lunatic.” It was moving at five – 15 kmh. She grazed her toes and hip and there was a tiny mark on her hand. Mr E stopped the car and ran over to her, picked her up and put her back in the car. He put on her seat belt and drove off.
·They drove near the Shopping Centre where the mother noticed a lot of police. They were pulled over, Mr E stuck his hands out of the window, then turned the car off and was asked to lie on the ground. The mother was distressed to see a gun at his head.
·The mother ran to Mr E, the police separated them and the police called an ambulance for her. The ambulance officers gave the mother morphine, she was taken to Suburb P Hospital and given another dose. She was put on a drip because she was intoxicated.
·At around 3.30 am a detective came in and threatened her to the effect: if she didn’t move back to her parents then DOCS would remove the child from her care.
·The mother was released the next day. She called Ms J and attended with Mr E’s family at FF Town Local Court where Mr E was refused bail.
91.The mother was cross-examined about the incident. She agreed that it was her birthday and she planned to spend it with Mr E. In the morning she could not’ wake Mr E so she went to the home of the maternal grandparents. The child was collected by the father. Mr E called her – not 50 times but perhaps 10 times. She had been drinking. She drove somewhere to meet Mr E. She got out of the car. Mr E put her back in. She got out of the car when it was moving at five – 15 km/h. She was grazed. She was probably given morphine by the ambulance officers and again at the hospital. At 3.30 am a detective threatened that the child would be taken if mother did not do something. The mother complained to the Police Commissioner about the detective. The mother spoke to someone at the hospital but she did not’ see her – ‘she was behind me’. The person could have been Ms GG, a nurse or perhaps a social worker.
92.The mother agreed with the hospital notes about her injuries; being multiple abrasions to right thigh; ankle, toes and arm. The mother conceded that the hospital notes suggested that she suffered more damage than the scratched toe that she reported to the Family Consultant. The mother confirmed that she told the Family Consultant that the incident on 20 October 2012 was blown out of proportion. She agreed that she still thinks that is the case. The mother agreed that her evidence about the incident is different to the agreed statement of facts on the basis of which Mr E pleaded guilty and was convicted. I understood that the mother conceded that she had set out to understate the incident to the Family Consultant. In any event I am satisfied that she did set out to understate the events of 20 October 2011.
93.The notes[10] of a hospital social worker Ms GG, taken at Suburb P Hospital on 21 October 2012 are in evidence and put another slant on the mother’s view of the incident. The necessary inference is that the mother provided the information included in Ms GG’s notes. The effect of the notes is as follows:
[10] Exhibit 8
·At 1 am on 21 October 2012 Ms GG was asked to see the mother “re domestic violence”.
·The mother lives at Suburb W with her partner of five months, Mr E (23) and her son the child. Before that she lived in Region S. Her parents live at Suburb HH and are very supportive. I note that the mother gave evidence that her parents had never lived at Suburb HH.
·D’s father lives in Region S. She and the father don’t talk but they don’t argue and he is great with the child.
·Mr E was currently on a suspended sentence ‘for fighting’ and has been in gaol before for violent offences. The mother is aware of violence in his previous relationship with the mother of his daughter ‘(name and age unknown)’.
·Mr E is a member of the O Club.
·Ms Wixon’s (the mother’s) major support is her parents with whom she and the child can stay for as long as she wants. The child attends occasional care in Suburb W, however the centre is owned by Mr E’s mother.
·There have been no previous incidents of violence since the mother and Mr E had been together but that Mr E is controlling and jealous.
·She attempted to get out of his car and he chased her in the car.
·The police asked the mother to provide a statement when she is able and the police will take out an interim AVO which will cover both her and the child.
·Ms Wixon described being fearful of Mr E’s parents who she believes will blame her for the incident. Ms Wixon is especially concerned that Mr E might go to gaol and that it will be her fault. The SW (social worker) also talked with Ms Wixon about the cycle of violence and the likelihood that Mr E will try to persuade her not to pursue the AVO in court.
94.The maternal grandmother gave evidence that on 23 November 2012, after a hearing at the Federal Circuit Court at Newcastle, the mother damaged her car in a car park and that members of the family of Mr E parked her car in. She was cross-examined about the incident at the car park across the road from the Newcastle Court. Upon entering the car park she heard yelling and banging and found the mother banging her motor vehicle. She found the mother, Mr K, Ms J and Ms BB around her car. She said they had parked her in. The maternal grandmother made a police statement and an interim AVO was granted against the mother for the protection of the maternal grandmother.
95.The mother told the Family Consultant in February 2013 that she had sustained a scratch on her arm and had complained to the police who had refused to take action. Mr K said that his daughter Ms BB had called the police.
96.Both Ms J and Mr K were cross-examined about the incident. They confirmed that there was a verbal argument between the mother and maternal grandmother. They did not dispute that the mother’s car, then driven by Ms J was stopped in the car park in a way that blocked the maternal grandmother’s car. However, they both said that they did not know at the time that they had blocked the maternal grandmother’s car and that they did not know which car belonged to the maternal grandmother. Ms J said that she simply stopped the car near the site of the argument between the mother and maternal grandmother. They were asked if they said anything during the incident. Ms J recalled saying something to the mother to draw her away from the argument. Mr K could not recall but then said he might have said something to the maternal grandparents like: “how could you do this to your daughter?” Neither Ms J nor Mr K thought that the maternal grandparents had a reason to be intimidated by their intervention in the incident although Mr K said that he had a loud voice.
97.The various versions of the event are equivocal. Putting the best possible light on it from the point of view of the mother’s case: the mother was devastated by losing custody of the child and sought out her mother in the car park. They came into physical contact and the maternal grandmother and possibly the mother suffered a scratched arm. Ms J was driving the mother’s car out of the car park and came to the site of the argument between mother and daughter. Ms J unintentionally blocked the exit of maternal grandparents’ car. Ms J tried to encourage the mother away but Mr K engaged in the dispute by saying something to the maternal grandmother.
98.There was one other witness. The barrister who represented the maternal grandmother that day gave a witness statement[11] in which he corroborated the evidence of the maternal grandmother. He noted a scratch on her arm, that her car was parked in by a red car occupied by the mother and opined that the mother and those with her had attempted to intimidate the maternal grandparents in relation to the dispute about the child.
[11] Exhibit 6
99.The following findings are available in relation to the incident on 20 October 2012:
·It is an agreed fact that Mr E pleaded guilty to and was convicted of offences falling within the definition of violence.
·In addition to strangers to these proceedings, the mother and the maternal grandparents were the victims of his violence.
100.I am satisfied that whatever their intention Mr E’s parents have intimidated the maternal grandparents.
101.I am satisfied that the mother and/or Mr E set out to threaten and intimidate the father in connection with these proceedings.
102.This factor strongly favours the proposals of the ICL.
Additional considerations
(3) (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;
103.The child is five years of age and there is no probative evidence of his views. It is appropriate that the parties have not pressed him to express his views as they would neither be determinative nor influential in these proceedings. He is simply too young to express a view that would be given weight in respect of a decision about parental responsibility for him or about his living arrangements.
(3)(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);
104.I have referred to the evidence about the relationships between the parents and the child.
105.As I have noted, the Family Consultant reported that the child appeared to have strong and positive relationships with all of the parties. In fact the wording in the report was “with all of the adults in his life”. Lest that be thought to extend beyond the parties, there is no indication that the Family Consultant observed the child with any person, other than the parties.
106.For most of his life, in addition to mainly living with his mother, for all but the period from late 2011 to January 2012 (when the mother and father moved out to rented premises) and from July 2012 to November 2012 (when the mother and Mr E lived at Suburb W or in Region S), the child has always lived with the maternal grandparents.
107.The evidence suggests that the child is doing well in the care of his maternal grandparents.
108.This factor does not favour one proposal or the other.
(3)(c) the extent to which each of the child’s parents 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;
109.There are allegations that at different times, the father and the mother did not take up opportunities to spend time with the child. Those allegations are not linked to the orders sought by any party. In my view, the parents have maintained an interest in the child and in spending time and communicating with him.
110.This factor is of no assistance in distinguishing between the proposals.
(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
111.Currently the maternal grandparents bear the main financial load for the child. The father pays $50 per week into a trust account which is used by the maternal grandparents for the child. He also pays for sport and other activities.
112.The mother provides no financial support to the maternal grandparents for the child. The mother said that she buys the child clothes and gifts. There was some reference to the position as far as Centrelink went, about the child’s support. It is an agreed fact that there has been no application for a child support assessment.
113.Without knowing about the financial circumstances of the parents it is difficult to make a definitive finding about this issue. For more than 12 months the mother has not had paid employment and Mr E was in gaol or working to repay his father. It is doubtful that the mother had much capacity to maintain the child. The father’s financial support for the child seems modest but that may be a function of his financial circumstances.
114.This factor favours the proposals of the ICL but may be affected by the potential for an additional income tested benefit for the mother.
(3)(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;
115.D lives with his grandparents and spends time with his parents. The only change in prospect would have him living mostly with his mother. That is likely to have benefits in that he would resume a more intimate and consistent relationship with his mother. It also has potential detriments in that he would be exposed, both directly and indirectly to the potential for violent, controlling and jealous behaviour from Mr E.
116.There are a number of imponderables including the possibility that Mr E might change; the impact the birth in October of the child of the mother and Mr E might have on the safety and dynamics of the mother’s household and perhaps the need for and availability of Ms J and Mr K to provide a protective presence for the mother and the child.
117.The overarching problem is that in their presentations to this Court, the mother, Mr E and Mr E’s parents do not recognise any danger for the child presented by Mr E’s behaviour. Indeed, the mother said that she could not wish for a better father figure than Mr E. In those circumstances, there is little hope for an improvement in the level of safety for the child in the household that his mother shares with Mr E.
118.This factor strongly favours the proposals of the ICL.
(3)(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;
119.The parties now all live in Region S. The mother is disqualified from driving and that makes the handover arrangements with her, more difficult. If the mother was to ensure that Mr E and his parents are kept away from the child, that would exclude them from helping with some transport arrangements.
120.During cross-examination the mother was asked how she would manage if Mr E could not come into contact with the child. The mother seemed nonplussed but said she would see the child in her home and Mr E would need to be elsewhere. It must be acknowledged that with a new baby to arrive soon, the arrangements proposed by the ICL and supported by the maternal grandmother and the father will be very difficult for the mother.
121.This factor does not favour one proposal over the other.
(3)(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;
122.It is an agreed fact that the mother is a loving parent. Despite some criticism of her parenting, but for her association with Mr E, it is likely that there would be no parenting controversy. It was the evidence of the maternal grandmother that but for that relationship, the maternal grandparents would agree to the child living predominantly with the mother. In cross-examination the father agreed that the mother is a good mother. He agreed that the problem is Mr E.
123.As to the mother’s capacity, there are two main issues. First, Mr E is capable of exhibiting intimidating and aggressive behaviour and the mother today shows no appreciation of the seriousness of that behaviour. Mr E pleaded guilty to five charges of intimidation on an agreed statement of facts including very serious criminal conduct, resulting in him being sentenced to a total of 30 months imprisonment of which he was required to spend 15 months in gaol before being released on parole. The mother told the Family Consultant and continues to believe that that the incident was blown out of proportion. That is not what she told the hospital or the police on the night. She told Suburb P Hospital[12] that: “Mr E is currently on a suspended sentence ‘for fighting’ and has been in gaol before for violent offences. She is aware of violence in his previous relationship with the mother of his daughter.” and “Ms Wixon states that there have been no previous incidents of violence since they have been together but that Mr E is controlling and jealous.”
[12] Exhibit 8 - Consult Note Suburb P Hospital.
124.Sensibly, Mr E did not tell the NSW District Court or this Court that the incident had been blown out of proportion. The sentencing remarks[13] put into evidence at the mother’s request, reveal that the District Court did not consider that the incident had been blown out of proportion. The sentence that included a further period in custody after Mr E had spent nearly 12 months on remand, confirms the seriousness of the offences.
[13] Exhibit 19.
125.The concern is that if the mother does not recognise dangerous behaviour, how can she be relied on to protect the child from direct or indirect exposure to that behaviour? The Suburb P Hospital notes of 21 October 2012[14] include the following:
[Ms Wixon] described being fearful of [Mr E’s] parents who she believes will blame her for the incident. [Ms Wixon] is especially concerned that [Mr E] might go to jail and that it will be her fault. SW (social worker) talked with [Ms Wixon] about patterns in DV relationships and emphasised that she cannot be responsible for [Mr E’s] behaviour. SW also talked with [Ms Wixon] about the cycle of violence and the likelihood that [Mr E] will try to persuade her not to pursue the AVO at court. SW gave [Ms Wixon] DV booklet.
[14] Exhibit 8.
126.In cross-examination the mother said that she could not ask for a better father figure for the child, than Mr E.
127.Second, the mother has little regard for the law. She has had six convictions for driving while disqualified[15]. She dismissively referred to them as ‘driving offences’. Indeed, on 20 October 2012 the mother drove (while disqualified from driving) to the Suburb P Club. The mother sought to explain that incident by saying that she had been drinking. Did she think it was better to be driving disqualified if she was under the influence of alcohol? Apparently in breach of order 3 made on 9 September 2013, the mother and Mr E had attended at the father’s home about three weeks before this trial, to ask him to change his application to the Court. If, as the father alleges, they threatened him then that was a further intimidation, if not contempt of Court.
[15] NSW Police Court history convictions – exhibit 12.
128.Albeit not of the seriousness of the other matters, the mother has not been able to protect the child from displays of her own distress. In October 2012 at Suburb P Police Station and November 2012 at Suburb W Police Station the mother was extremely distressed in the presence of the child and no doubt added to his distress on those occasions.
129.The affidavits of the maternal grandmother contain evidence of many occasions when the child has been exposed to poor behaviour from his mother, particularly foul language. Like the other parties, the mother was unrepresented during the trial but there was not a concerted challenge to the evidence of the maternal grandmother about those occasions.
130.During her cross-examination, the maternal grandmother was asked about paragraph 18 of her affidavit of 28 October 2012. There she referred to something the child said about four weeks before (presumably around the end of September 2012) but she did not set out what it was. The maternal grandmother said that the child told her that he was scared of Mr E; that he (D) runs and hides; that Mr E yells and screams all the time; there was broken glass; that he saw the mother sucking Mr E “down there” and Mr E running about with no underpants on. The maternal grandmother was asked what she did next and she said she was in shock. She told the child it was OK and that he would not need to see those things again. She told the mother what the child had said and the mother denied that there was any domestic violence. The mother agreed about the yelling. When the maternal grandmother mentioned the broken glass the mother said that they had left the house. The maternal grandmother said she did not put that detail in her affidavit because she had safety concerns, she was worried about repercussions from the E family.
131.It was the mother’s submission that Mr E has expressed remorse for his behaviour on 20 October 2010. The remorse found little expression in the evidence in chief before me. The references to the event in his affidavit include the word ‘regrettably’[16] but the regret apparently related to the event, rather than his conduct. He deposed that after he and the mother met at the Suburb P Club on 20 October 2012, when she was wearing a short nightie and they had an argument:
Regrettably, things got out of hand after that. I acted in a way that I realise what threatening and no way to handle such a situation.
[16] Paragraph 37 of the affidavit of Mr E dated 7 July 2014.
132.Later in his affidavit Mr E acknowledged that the maternal grandparents have fears for their safety and for the safety of the child;[17] and said that he could understand that the maternal grandparents are not forgiving.[18] However, when Mr E was asked during cross-examination if he understood why the maternal grandparents and the father might be scared of him, rather than the statement in his affidavit, he responded to the opposite effect, with:
There is no reason for that. I did say the wrong things. I’m remorseful for that. I said stupid things. I didn’t carry out any threats. I haven’t put anyone’s life in danger. I haven’t hurt anyone. I’m remorseful for what I did. I’ve done my time. I’m out to get on with my life. I’m not here to hurt no-one.
[17] Paragraph 47 of the affidavit of Mr E dated 7 July 2014.
[18] Paragraph 53 of the affidavit of Mr E dated 7 July 2014.
133.When it was put to him that the maternal grandparents might not believe his assurance[19] that they are not at risk or at harm from him or any member of his family or associates, Mr E responded to the effect:
We’ll I can see why you’re saying they might not believe me but if I had any reason to hurt these people, it’s been two years. Why would I consider doing anything to them now if I had not considered doing it before?
[19] Paragraph 54 of the affidavit of Mr E dated 7 July 2014.
134.All of that was a far cry from the case put to the District Court on behalf of Mr E on sentencing. Among other things his barrister’s submissions included:[20]
As at October of last year .. he was a stupid man who was a legend in his own mind .. he thought he was bullet proof, he thought he could carry on … that can be seen in the types of remarks he made to these people on this occasion.. a big man proud of his ability to frighten and terrorise people.
[20] Exhibit 19.
135.Mr E came to official attention during his time in gaol. His visits were restricted due to what was observed to be sexual interaction with mother, on more than one occasion. Mr E reacted aggressively to prison officers. Mr E was convicted of possession of a mobile telephone while in gaol and came to attention for the possession of prescription medication.
136.The maternal grandfather gave evidence that he had heard of some threats from Mr E through his other daughter. He was concerned to hear that Mr E turned up at the father’s home three weeks before the hearing. He agreed in cross-examination that no threats against him had been carried out, although adding “not yet”.
137.It is an agreed fact that the child will spend time with the father, including overnight and on an unsupervised basis. I note however, that the father was the subject of an interim AVO for the protection of the mother in 2011 and lost his license for six months for driving under the influence in 2011. In relation to the interim AVO the mother told the police that there had been no domestic violence incidents reported to the police between the parties, no AVO’s sought and no previous charges. The mother told the police that the father had never threatened the mother with “physical harm before and now suddenly he has threatened to punch her and calling her names”.
138.The mother attached photographs of a Ms II to her affidavit. I understood that she copied them from Instagram, a social media site associated with the father. I take it that the mother intended to criticise the father in some way about his relationship with Ms II but it is not clear why. As is referred to above, the mother seeks orders whereby the child would spend time with the father including overnight, each alternate weekend. She does not seek that the father be restrained from bringing the child into contact with Ms II, his Facebook page or in any other way.
·On 23 October 2013 the maternal grandmother said to the mother that Mr E is a criminal. The mother defended Mr E and said that he did not have a long rap sheet. The maternal grandmother replied “probably because he hasn’t been caught” and records that the mother agreed. The mother said to her “[Mr E] lives by the gun die by the gun.” The mother said that this is a game and what comes around goes around. The mother said to the maternal grandmother that she could have the father (made) a vegetable not to be able to drive a car or play football.
·The maternal grandmother deposed that despite her assurances to her parents and to the Family Consultant, the mother never completely moved away from the E family, that she turned up at her parents’ home with one bag and continued to move back and forth to Sydney. “The communication on the phone is constant with the [E] clan it starts at 7 AM and goes through to 9 PM daily.” The mother often left the room and went out the back or front of the house to talk on the phone however it was a major disruption. The child kept worrying and becoming anxious about where the mother was going and the maternal grandmother constantly had to step in for the child and keep him occupied. The maternal grandmother felt that the control (of the mother) was too much for the mother to bear. The mother’s mood would change after each conversation and on one occasion the maternal grandmother witnessed the mother with tears rolling down her face.
·On 27 November 2013 the mother threatened to punch the maternal grandmother in the face and called her a “cunt” in the presence of the child and then threatened to kill herself. The mother threatened to throw herself under a train and said that she doesn’t want to live anymore and wished she was dead. On 4 December 2013 the mother apparently had a telephone conversation with Mr E. When she hung up she said “I can’t take it any more… I’m sick of it, I can’t live this life any more I could easily jump off [the point]”. This was apparently said in the presence of the child.
·It is the evidence of the maternal grandmother that Mr E called on 241 occasions while the mother was visiting the child.
·On 17 May 2014 the mother told the maternal grandmother she was going to leave when Mr E was at work. The maternal grandmother records that the mother did not arrive.
·On 10 June 2014 the maternal grandmother’s niece contacted her and asked her to contact the mother immediately. The mother was crying and told her that Mr E was crazy. Because she refused to pick up some catalogues off the seat of the car he started abusing her, yelling at her and chasing her down the street talking to himself at the same time. The mother said that he was saying “don’t do it [Mr E] don’t do it” the maternal grandmother told the mother that she felt he was showing the traits of a psychopath. The mother responded to the effect that Mr E sees a psychologist once a month but that he had only three visits left. The mother said that he always tried to call the father all the time. The mother said that Mr E followed her everywhere she goes even to the toilet. She said that when they pull up in the driveway Mr E rips her undies off and checks to see if she is cheating on him.
163.Suffice it to say, that evidence suggests that there is the potential for real danger to the mother, in any contact with Mr E. Whether through her or directly, that means there is a risk of danger to the child in such contact.
164.This factor strongly favours the proposal of the ICL.
(3)(j) any family violence involving the child or a member of the child’s family;
165.I have dealt with the evidence about this issue under other criteria.
166.This factor strongly favours the proposal of the ICL.
(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
167.There is no existing order that is relevant to the controversy before the Court.
(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;
168.Nothing additional comes to attention here.
(3)(m) any other fact or circumstance that the court thinks is relevant.
169.Some of the provisions of s 60CC relate only to parents. Given that the parents seek orders that the child live with or spend time with the maternal grandparents, it is relevant to address the import of some of those provisions insofar as they apply to persons who are not the child’s parents.
170.The Family Consultant reported that the child appeared to have strong and positive relationships with all of the parties.[25] As with the observations with his parents, the Family Consultant observed a loving and relaxed interaction between the child and his maternal grandparents. He ran into the room and smiled at them. He hugged them. They both engaged with him in play and he sought and obtained their approval. There is clearly a good relationship between the child and his maternal grandparents. Of course it is a relationship sponsored and promoted by the mother until relatively recently. The mother elected to live with the child, at the home of her parents until 2012.
[25] Paragraph 54 of the Family Report.
171.The Family Consultant did not observe the child with Mr E or with his parents.
172.This factor favours supports the proposal of the ICL.
173.Something needs to be said about the fact of the maternal grandparents’ involvement in the proceedings. I gather that the mother’s opinion is that her parents are seeking to take her son for themselves. That is not a view I share. It was the father and not the maternal grandparents who commenced there proceedings. An objective observer would see two grandparents offering a safe haven for their grandson and being very reluctantly involved in litigation about him. As I have noted, but for the mother’s relationship with Mr E, there would likely be no proceedings, let alone an application that the child live with his grandparents. The grandparents have been threatened and abused and it is very clear that once he mistreated their daughter, they wanted to have nothing to do with Mr E or his family.
174.The maternal grandparents have risked their health and well-being to provide a safe and loving home for their grandson. Whereas it would no doubt have been easier for them to stay silent, they have made real sacrifices for the child and for their daughter and have been attacked for their trouble. The cost of their involvement in the child’s life is only too starkly reflected in the obviously painful position announced by them, that they will have no role with the baby due to the mother and Mr E in October. Although they are young for grandparents, the plight of their daughter and grandson has clearly taken a significant toll on each of the maternal grandparents and they feel that they can do no more.
175.In my view, the child and the mother are lucky to have the maternal grandparents.
176.Finally, the observation must be made – if it is not safe for a five year old child to be exposed to the risks associated with the household of the mother and Mr E, what fate awaits their newborn baby? Unless real change is effected in Mr E’s behaviour and in the relationship of the mother and Mr E, that baby is at risk. Lest his parents think otherwise, the younger a child the greater the risk of harm from exposure to neglect or violence whether direct or indirect, by word or deed. Babies are not capable of self protection beyond making physiological changes that could have lasting detrimental effects on their development.
177.If his parents cannot protect him, it will be left to compellable notifiers to bring the baby’s situation to attention.
Parental Responsibility
178.Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
179.An order for shared parental responsibility has the following effect:
SECT 65DAC
Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
180.Presumably that must also apply to equal shared parental responsibility.
Discussion
181.In the context of this case, s 61DA requires that I apply a presumption that it is in the child’s best interests for his parents to have equal shared parental responsibility for him unless there are reasonable grounds to believe that the father or the mother have abused him or engaged in family violence. There has been family violence and therefore the presumption does not apply.
182.Where the presumption does not apply, s 65D(1) requires the Court to make such order with respect to parental responsibility, and/or time to be spent with each of the parties as it “thinks proper”. What is proper is what is in the best interest of the child - determined by reference to s 60CC of the Act.
183.It is common ground that the parents will have equal shared parental responsibility. The controversy is whether that responsibility will be shared by the maternal grandparents. As will be discussed below, I will order that the child live mainly with his grandparents. As the mother seemed to accept, it is logical that the adults with whom the child mostly lives should have parental responsibility.
184.There are real problems with communication between the parties and I take it that is in part the reason for the ICL’s proposal that there be a default position in relation to the child’s upcoming primary schooling. Nevertheless, I will make the order sought by the ICL and supported by the maternal grandparents and the father. As I have recorded, the mother seemed to accept that the parties should equally share parental responsibility.
Conclusion
185.The presumption that the parents having equal shared parental responsibility would be in the child’s best interests, does not apply. However the proper order is one that has parental responsibility shared equally by all parties.
Living Arrangements
186.As the Court will make an order that, albeit also shared with the maternal grandparents, the parents have equal shared parental responsibility, it is necessary to consider equal time and if that is not ordered, substantial and significant time with each parent. Section 65DAA requires that in considering equal time the Court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
187.There is no proposal from any party or the ICL that the child live for equal time with his parents. Nor is there such a recommendation from the expert. It would be unusual for the Court to impose a pattern of living arrangements for a child that was not pressed in the first instance by any party or the expert. Perhaps more starkly, the father does not seek an order that the child live for half the time with him. It would be neither in the child’s best interests nor practicable to make such an order in those circumstances. It follows from the findings made earlier in these reasons that it would neither be safe nor practicable for the child to live for half the time with the mother.
188.As to substantial and significant time, such an arrangement has the following features:
S 65DAA
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child‘s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
189.Only the mother’s proposal would achieve substantial and significant time between the child and each parent. As to whether such an arrangement would be in the child’s best interests, it follows from the above findings in relation to s 60CC that it would not. The primary considerations favour the rejection of the mother’s proposal.[26] Although some factors favour the mother’s proposals, the preponderance of the additional factors favour the proposals of the ICL which have the support of the maternal grandparents and the father. Therefore it would not be in the child’s best interests to order that the parents have substantial and significant time with him.
[26] S 60CC (2A) requires that greater weight be given to subparagraph 60CC(2)(b).
190.It is not necessary to consider whether substantial and significant time with the parents would be reasonably practicable, but for completeness:
191.S 65DAA(5) provides:
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child‘s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note: Paragraph (c) reference to future capacity--the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
192.Here the parents both live in Region S. They have a poor relationship and although in the past they have cooperated, I doubt that they currently have the capacity to implement substantial and significant time. The parents have little or no direct communication and I am satisfied that their most recent communication apart from in the course of the hearing was intended to threaten and intimidate the father. Because of the risks associated with Mr E, living for substantial and significant time with the mother would expose the child to danger.
193.On that basis, I find that substantial and significant time with both parents would not be reasonably practicable.
194.Given that the child should not live equally between his parents or for substantial and significant times with each of them, I am to consider what living arrangements would be in his best interests.
195.In my view the proposals of the ICL which are supported by the maternal grandparents and the father, would meet the child’s needs. The proposals are not controversial in relation to time with the father. As between the maternal grandparents and the mother, the proposals prioritise the child’s safety while ensuring that he has regular and meaningful opportunities to maintain and develop his relationship with his mother. The evidence and submissions focussed on one proposal versus the other and did not seek to distinguish particular aspects of the proposals. If there is something in the precise wording of the ICL’s proposals that requires amendment to improve the workability of the arrangements then, if the parties cannot agree about the necessary change, that issue could be brought back shortly after judgment for amendment.
196.As to handover arrangements, there is no controversy between the maternal grandparents and the father. Where there is a controversy between the grandparents and the mother, given the extent of the commitment for which the grandparents have volunteered, in my view, their preferences and convenience should be given greatest weight.
197.The remaining controversy relates to the application of the maternal grandparents to have the injunction granted on 9 September 2013, continued on a final basis. This was only raised by the maternal grandparents late in the hearing but was the subject of the orders originally sought by them. The ICL proposes an order in the following terms:
11)The Mother’s time with [the child] is conditional upon her being restrained from permitting [the child] to spend time with, communicate with or have any contact with [Mr E] and permitting or enabling [Mr E] to approach the child, the Maternal Grandparents residence, the Father’s residence, the child’s preschool or school or any other location where [the child] may be.
198.As I read that proposed order, the mother’s time is to be conditional on an injunction that will not be in place. Without the injunction in question the mother would not be able to spend any time with the child. I am reasonably confident that what the ICL sought to achieve was:
The Mother’s time with [the child] is conditional upon her not permitting the child to spend time with, communicate with or have any contact with [Mr E] and not permitting or enabling [Mr E] to approach [the child], the Maternal Grandparents’ residence, the Father’s residence, the child’s preschool or school or any other location where the child may be.
199.The difference between the orders pressed by the maternal grandparents and those sought by the ICL is the extension of the restraint on the mother in respect of Mr E, to the members of Mr E’s immediate family and to prevent the mother from:
(b) Providing any information about the child to Mr E and his mother, father and sister; and
(c) Communicating with any of those persons while the child is in her presence or hearing.
200.The need for orders of this type is highlighted by the fact that the mother breached the orders of 9 September 2013 only three weeks before the hearing. I can also understand the particular impetus for the additional orders. The maternal grandparents are seeking to avoid members of Mr E’s family having the information that would allow them to breach the letter or spirit of orders that isolate the child from them. However, in my view, the additional orders will make impossible, what is already going to be a very difficult situation for the mother. If the past is any guide the mother may not be permitted to drive a motor vehicle for a considerable period. She must be aware that it would not be appropriate for the child that Mr E or the members of his family come into contact with the maternal grandparents. However, from time to time she will need assistance with transport. The mother will soon give birth to her second child. It would not be practicable, for example, to limit into the indefinite future, all communication between her and that child about the child, to occasions when neither Mr E nor any member of his family is present.
201.I will make an order based on what I have identified as the intent of the order framed by the ICL.
Conclusion
202.The contest before the Court relates to whether the child, aged five, should live mainly with his mother or his maternal grandparents. The mother’s partner has been convicted and gaoled for intimidating a number of persons, including the mother and the maternal grandfather. Because of the risk of violence from him to the child both directly and through the risk he poses to others, the living arrangements cannot directly expose the child to the mother’s partner. Therefore the child will live mainly with his maternal grandparents. His mother’s time with him will be conditional on her not exposing him to her partner. The child will also spend time with his father on weekends.
203.Leave will be granted to the parties to bring the matter back before me within 28 days, or such further time on which the parties may agree, in relation to the phrasing of the orders.
I certify that the preceding two hundred and three (203) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 22 August 2014.
Associate:
Date: 22 August 2014
Key Legal Topics
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Family Law
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Jurisdiction
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