Finn & Clacher
[2023] FedCFamC1F 9
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Finn & Clacher [2023] FedCFamC1F 9
File number(s): PAC 4802 of 2019 Judgment of: HANNAM J Date of judgment: 19 January 2023 Catchwords: FAMILY LAW - FINAL PARENTING – Dispute in relation to live with and spend time with arrangement – Where it is contended the mother’s capacity to meet the child’s needs is compromised – Where it is contended the mother’s partner poses a risk to the child but this risk is not unacceptable – Where the father seeks that the child move to live with him – Where the father’s capacity to care for the child is impacted by his health conditions – Where the practical or significant expense involved in spending time with the other parent is a salient consideration – Where neither party holds a driver’s licence – Where the child spends several hours travelling by public transport when changeover occurs – Where it is not reasonably practicable for the child to spend equal time or substantial and significant time with both parents – Where the Court is not required to craft orders to support an optimal relationship – Where orders are made for the child to live with the mother and spend time with the father each four weeks and a little more than half school holiday time. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65D Cases cited: G & C [2006] FamCA 994
Godfrey & Sanders [2007] FamCA 102
Goode & Goode (2006) FLC 93-286
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Division: Division 1 First Instance Number of paragraphs: 282 Date of last submission/s: 13 December 2022 Date of hearing: 10 – 13 October 2022, 8 November 2022 Place: Parramatta Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: Ms Cantrall, Legal Aid NSW Counsel for the Independent Children's Lawyer: Mr Turnbull Solicitor for the Independent Children's Lawyer: Scb Legal Pty Ltd ORDERS
PAC 4802 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FINN
Applicant
AND: MR CLACHER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HANNAM J
DATE OF ORDER:
19 January 2023
THE COURT ORDERS THAT:
Live with/Spend time with
1.The child is to live with the mother.
2.Commencing 10 February 2023 the child is to spend time with the father during the school term time as follows:
(a)Every fourth weekend from afterschool on Friday until 4.00pm on Sunday;
(b)At all other times as agreed between the parents.
3.The child’s time with the father in accordance with order 2 shall be suspended during NSW gazetted school holiday periods and the child instead shall spend time with the father:
(a)In the school holiday periods following terms 1, 2 and 3 from afterschool on the last day of the school term for a period of 10 nights, with changeover to take place at 12.00pm on the 11th day.
(b)In the school holiday period following term 4 from after school or 4:00pm on the last day of the school term, on a week-about basis until 12:00pm on the 8th day and each alternate week thereafter with changeover taking place at 12:00pm on the 8th day.
4.If the child is not otherwise spending time with the father he shall also spend time with the father as follows:
(a)On the June long-weekend from afterschool or 4:00pm on Friday until 4:00pm the Monday immediately following;
(b)On the October long-weekend from afterschool or 4:00pm on the Monday immediately following.
Changeover
5.Unless otherwise agreed, if changeover is taking place on a normal school day changeover shall be at the child’s school at the end of the school day. All other changeovers shall take place at Suburb B Train Station.
Special Occasion Time
6.Unless otherwise agreed, commencing in 2023 if the child is not otherwise spending time with the mother, the child's time with the father shall be suspended on the following occasions of special significance:
(a)On the weekend of Mother's Day from afterschool or 4:00pm Friday until 4:00pm Sunday;
(b)In odd numbered years from 4:00pm on 23 December until 4:00pm on 26 December;
(c)In even numbered years from 4:00pm on Good Friday until 4:00pm on Easter Monday.
7.Unless otherwise agreed commencing in 2023 if the child is not otherwise spending time with the father, the child's time with the mother shall be suspended on the following occasions of special significance:
(a)On the weekend of Father's Day from afterschool or 4:00pm Friday until 4:00pm Sunday;
(b)In even numbered years from 4:00pm on 23 December until 4:00pm on 26 December;
(c)In odd numbered years from 4:00pm on Good Friday until 4:00pm on Easter Monday;
(d)From 4:00pm 12 January to 4:00pm on 15 January.
Parenting courses, psychological treatment and medical treatment
8.Within 14 days of these Orders, the mother shall attend on her usual general practitioner to obtain a mental health plan, and shall comply with any treatment as reasonably advised by that general practitioner or another health practitioner to whom she is referred, for so long as the general practitioner or other health practitioner reasonably advises her to do so.
9.Within 14 days of these Orders, the mother will enrol in the course known as Circle of Security, or some equivalent course. The mother shall complete the course known as Circle of Security at the earliest available opportunity.
10.Within six (6) months from the date of these orders, each of the mother and the father is to enrol and complete a Parenting After Separation Course, and each of them shall provide evidence of the enrolment and completion to the other.
11.The mother shall ensure that the child continues to attend upon speech therapy for as long as the therapist deems necessary and shall follow all recommendations with respect to treatment.
Communication between the child and parents
12.The child shall communicate with the parent that he is not otherwise residing with by video communication:
(a)Each Tuesday and Thursday between 4:00pm and 4:30pm;
(b)On the child's birthday between 4:00pm and 4:30pm;
(c)On the child's siblings’ birthdays between 4:00pm and 4:30pm; and
(d)All other times as agreed between the parents;
And for the purpose of these telephone calls, the parent with the immediate care of the child shall initiate all calls unless otherwise agreed.
13.If either party requires the call to be rescheduled, such party shall to notify the other by email or text message at least one hour before the call takes place.
Parental Communication
14.The parents are to communicate with each other with respect to the child as follows:
(a)By way of email or text message; and
(b)By telephone in relation to an emergency.
15.The parents are to treat each other with respect at all times and throughout all forms of communication and during changeover and each parent will use their best endeavours to ensure that all other members of their families, including their partners, and their agents treat the other parent with civility and respect at all times.
16.In the event of a medical emergency, the parent who has care of the child at that time is to do all things necessary to contact the other parent immediately to inform them of the medical emergency and consult with them as to any medical decisions that need to be made but in the event that they are unable to reach the other parent, they are authorised to make such medical decisions on their own as may be required until the other parent is able to be contacted.
Authority
17.These Orders act as authority for both parents to contact the child's educational, medical and extra-curricular service providers, to provide any information to the parents that they may seek in relation to the care, welfare and development of the child.
18.Each parent is permitted to attend all events involving the child including, but not limited to:
(a)Sporting fixtures and events;
(b)Extra-curricular activities that allow for parental attendance or participation; and
(c)School functions and events that allow for parental attendance or participation.
19.The parent with whom the child is living or spending time on the day of any school, sporting or other extra-curricular activities or events will be responsible for the day to day care of the child at that event, including ensuring that the child is transported to and from the event unless otherwise agreed between the parents in writing.
Restraint
20.Pursuant to section 68B of the Family Law Act 1975, each party is restrained by injunction from:
(a)Sending any abusive and/or derogatory texts, emails or other written communications to the other parent or members of the other parent's family or household;
(b)Making any negative, critical, belittling, insulting or derogatory comments about the other parent or members of the other parent's family or household (including, but not limited to, questioning or criticising the parenting decisions and/or parenting capacity of the other parent) to or in the presence or hearing range of the child or via written correspondence which may be viewed or accessed by the child (including via SMS, Email or on social media) or allowing any other person doing so;
(c)Bringing the child into any form of contact with the paternal grandfather, Mr C;
(d)Exposing the child to any form of family violence;
(e)Exposing the child to any conflict or violent behaviour, including physical and verbal abuse (including swearing at the child) while the child is in their presence or respective care; and
(f)Subjecting the child to any physical discipline or allowing any other person to do so.
Independent Children’s Lawyer
21.The Independent Children’s Lawyer is discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Finn & Clacher has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
INTRODUCTION
These proceedings concern a little boy aged five (“the child”). His parents (“the mother” and “the father” or collectively “the parents”) separated shortly before his birth and have been engaged in a dispute concerning his future parenting arrangements for just over three years.
The child has lived predominately with the mother throughout his life and she seeks orders that this continue. The Independent Children’s Lawyer (“ICL”) supports the mother’s case and seeks orders that the child continue to live with the mother and spend defined regular time with the father.
Shortly after separation the father moved to live a significant distance from the mother and at the time of hearing continued to live some distance from her. Although the parents have now agreed to orders that they equally share parental responsibility for the child, it is not reasonably practical for the child to live in an equal shared care arrangement or spend substantial and significant time with the parent he does not live with.
The father contends that the risks present in the mother’s household posed by her partner and the challenges the mother faces in obtaining appropriate support for managing her mental health are such that it is in the child’s best interests to move to live with him in an environment that he contends is “safe and positive”.
Throughout the hearing each parent sought orders that the child live with one parent and spend each alternate weekend and half the school holidays with the other, an arrangement supported by the ICL. At the completion of the evidence (and having regard in particular to evidence concerning the practicalities of either arrangement for both parents and the child) I raised concerns about the appropriateness of both parents’ proposals and gave the parties a further opportunity to formulate an alternative proposal for the child to spend time with the non‑residential parent.
The father’s amended and final proposal is for orders that will see the child spend time with the mother each fourth weekend during school term, 10 days in each short school holiday period, on days of special significance and one half of the December/January school holidays. Although the father seeks orders that would see the child move to live with him, in the event that the Court makes orders for the child to remain living with the mother he proposes mirror orders in respect of the child’s time with him.
While counsel for the ICL continues to press for a parenting arrangement in which the child lives with the mother and spends time with the father each alternate weekend during the school term (and for half the school holidays and on special days), the ICL proposes an alternate regime for the father’s time if the Court does not consider the ICL’s primary proposal in the child’s best interests. The alternate proposed orders, if made, will see the child spend no time with the father during the school term and extended time with him during school holiday periods.
In her final written and oral submissions, the mother, who represented herself, adopted the ICL’s proposals subject to some minor amendments.
The question for me to determine is which of the alternate regimes for the child’s living arrangements and orders to spend time with the other parent is proper having regard to the best interests of the child as the paramount consideration.
BACKGROUND
Each of the parents, who are in their mid-20s, had some difficult life experiences prior to meeting one another in mid-2016. These life experiences and some personal characteristics of the parents are matters to which I return but it is appropriate to set out some details concerning one matter in order to understand the context in which various allegations have been made and differing care arrangements for the child have eventuated. This matter concerns the father’s father (“the paternal grandfather”) and the father’s relationship with him.
The father and his parents and siblings were born in New Zealand. The father moved to live in Australia with his mother and siblings after his parents separated in 2005. In late 2009, after he had finished year seven at high school, the father moved back to New Zealand to live with his father (“the paternal grandfather”) who was then living with a new partner and the partner’s daughter (“the paternal grandfather’s step-daughter”) in a somewhat remote rural location. When the father was about 16 the paternal grandfather and his partner separated but the paternal grandfather’s step-daughter remained living with the father and paternal grandfather for about 12 months.
In 2014, when he was 18, the father travelled to Australia for a holiday to visit his mother. A short time after his arrival he decided to permanently relocate to Australia and has not returned to New Zealand since.
Shortly after returning to Australia the father received a phone call from a detective from New Zealand who then flew to Australia to speak to him. The detective told the father that the paternal grandfather had been charged with offences and that the offending occurred at a time when the father was living in the household.
A short time after being interviewed by the detective the father moved to the outskirts of Sydney with his mother and siblings. The father was subsequently contacted by the paternal grandfather who told the father he had pleaded guilty to the offences and had been sentenced. A short time later the father met the mother for the first time. He told her about the paternal grandfather’s offences and understood that the mother’s extended family also knew about this matter.
The parents had a brief relationship which the mother alleges was marked by some violence perpetrated by the father, which the father largely denies.
Some months after the relationship began, the mother, then aged 19, was pregnant. Concerns were raised with the Department then known as Family and Community Services (“the Department”) about the wellbeing of the parents’ unborn child as it was reported that the mother was homeless and had a strained relationship with her parents.
In mid-2017, when the mother was soon due to give birth, the parents separated. The father moved to a town in western New South Wales (“NSW”) with a new partner. This relationship was short lived and after a few weeks the father returned to live with his mother (“the paternal grandmother”) hoping to reconcile with the mother and to support her with the child who at that stage was newborn.
The parents spent some time together and cared for the child in each of their respective homes for a short period following the child’s birth. From around late 2017, the child began spending occasional overnight time with the father and this time subsequently extended to each alternate weekend from Friday night until Sunday night. The child otherwise lived with the mother.
The mother formed a new relationship in 2018 and she and this partner (“the mother’s former partner”) began living together from early 2019.
By late March 2019 the child’s time with the father extended to three overnights, from Thursday night to Sunday night each alternate weekend and took place at the home of the paternal grandmother and her partner where the father was living at the time. Later that year the father moved to the D Region of NSW while the mother has at all times lived in Sydney. As neither parent has ever held a driver’s licence both parents relied upon members of their respective extended families to transport the child between their homes.
It is the father’s case that from late 2018 and increasingly from early 2019 the child presented from the mother’s care with injuries. The father was concerned that these injuries may be evidence of a lack of care and supervision in the mother’s household and felt that the explanations the mother provided were unsatisfactory. The mother takes issue with these allegations and they are a matter to which I will return.
The father at this stage had formed another new relationship with a second former partner.
In mid-2019 the father decided not to facilitate the child’s return to the mother following the child’s regular time with him and sent a message to the mother that the child will be remaining with him. In fact, the father was away from Sydney at the time for work and his second former partner or the paternal grandmother were caring for the child. At this time the mother was heavily pregnant with a child to her former partner.
Two days after sending the message to the mother a report was made to the Department about risks to the child associated with alleged assault and neglect in the mother’s care, the mother’s alleged mental health difficulties and hygiene standards in her home.
The parents are in dispute in relation the father’s ongoing retention of the child from the mother which is a matter to which I will return. There is no dispute however that the child remained in the father’s care from mid-2019 until late 2019 and that during this time the mother gave birth to a child with her former partner (“the mother’s other son”). During this period the mother also took action to invite the father to participate in mediation through Legal Aid in relation to arrangements for the child, but the father, who had not sought legal advice, did not attend.
The mother commenced these parenting proceedings in the Federal Circuit Court as it was then known in September 2019. At the first court event in that Court on 15 October 2019, the parents negotiated a return of the child to the mother’s care that day and for the child to spend time with the father each alternate weekend. Orders were made to give effect to that agreement (“the October 2019 orders”).
There was an incident in which the mother was assaulted by her former partner in late 2019. At this time she arranged for the maternal grandfather and his wife (“the maternal grandparents”) to care for the child and her other son who was then a young infant.
In late 2019 the father formed a new relationship with his current partner (“the father’s partner”) and sometime later moved to live with her in another town in D Region. The father’s partner at that time had three other children from previous relationships, two of whom have significant disabilities. One of these disabled children tragically died shortly before the final hearing.
There were two further incidents in early 2020 (“the early 2020 assaults”) when the mother’s former partner assaulted her. At least one of these incidents was said to have occurred in the presence of the child. On this occasion the maternal grandparents stepped in again to assist the mother by caring for both of her children at the mother’s request for a short period of time.
As a result of the early 2020 assaults the mother ended her relationship with her former partner. She contacted police and a provisional Apprehended Domestic Violence Order (“ADVO”) was made against her former partner for her protection. A final ADVO was subsequently made for a period of two years though it does not appear that the mother’s former partner was charged in relation to these assaults.
The mother’s former partner also formed a new relationship shortly after the early 2020 assaults. The mother and her former partner have subsequently reached agreement which is reflected in court orders for a parenting arrangement in which the mother’s other son spends equal time with each of his parents in a “week about” arrangement.
The parents appear to have experienced some difficulties maintaining a consistent arrangement for the child to spend time with the father pursuant to the October 2019 orders and for the changeover to be facilitated, which at times included discord between the mother and the father’s partner.
By early 2020, the mother had also fallen out with the maternal grandparents as they wished to continue to care for the mother’s children following one of the incidents in which she was assaulted by her former partner but the mother initiated court proceedings and had been successfully able to have the children returned to her care. As a result of the disagreement the maternal grandparents were no longer assisting the mother with transport and the mother was facilitating changeover of the child with the father herself utilising public transport.
Although the October 2019 orders provided for changeover to occur at the parents’ respective homes, such an arrangement generally involved significant practical difficulties or the assistance of other family members given the distance between the parents and as neither parent has ever held a driver’s licence or had regular access to a car. Although the conflict between the parents’ over changeover continued they were able to come to an informal agreement that it could occur at a train station (“the train station changeover location”) approximately mid‑way between their respective homes. Even this arrangement however required that the mother walk or take a bus for the first part of the journey then change trains twice to arrive at the train station changeover location. Whenever the father was unable to arrange the assistance of family members (as was generally the case) he was also arriving at the train station changeover location by walking and utilising public transport for the journey from his home.
In early 2020 the father, who suffers from a medical condition, experienced a medical emergency when the child was in his care. He had serious breathing difficulties and was taken by ambulance to hospital. The father’s partner contacted the mother to tell her about these events. There is a dispute between the parents about what followed but it is common ground that the paternal grandmother collected the child from the father’s home and returned him to the mother.
The father experienced a further occurrence of this in mid-2020 and as a result suffered a disorder that has continued to the present. The father has other medical conditions and the state of his health is a matter to which I will return.
In late 2020 the mother met her current partner (“the mother’s partner”) and a few months later was pregnant with this partner’s child.
The parents continued to experience difficulties in relation to arrangements for the child’s time with the father and changeover including practical difficulties arising from the complexities and significant travel required as a result of having to utilise public transport. It was revealed at the final hearing that the child spends several hours travelling from one parent’s home to the other when changeover occurs on a Sunday and a number of hours when changeover occurs on a weekday.
The parents continued also to each have concerns about matters related to the care of the child in the other parent’s household. There were also some difficulties in communication and practical problems arising from the restrictions associated with the Covid-19 pandemic.
In late 2020 the mother sent a message to the father via a social media platform in which she expressed concern about the language used by the child (which the mother alleged was being taught to him by the father and his partner). She also made complaints about the father feeding the child unhealthy and inappropriate food and of the father’s partner “ticking [the child]’s bum”.
A short time later, in 2020 a further report was made to the Department alleging that the mother had physically abused the child, that the child was being psychologically harmed in her care and concerning historical information in relation to neglect by the mother. Concerns were also expressed in this report about the mother’s unborn child.
In early 2021 the mother enrolled the child in a childcare centre near her home but did not provide any details about the father as the other parent and listed the maternal grandparents as the only other people authorised to collect the child.
The father deposes to the paternal grandmother observing the child to be injured when collected from the mother’s care in early 2021 though there is a dispute between the parents about the severity and significance of this injury, to which I will return.
In early 2021 the parents participated in a legally assisted mediation through Legal Aid and reached agreement for the child to spend time with the father from 6pm Thursday to 6pm Sunday each alternate weekend with changeover to occur at the train station changeover location. This agreement was subsequently formalised in orders dated 22 March 2021 (“the March 2021 orders”).
Due to apparent difficulties between the parents in communicating about arrangements for changeover, other members of the extended maternal and paternal families were often involved in these arrangements. It would also appear that the parents’ extended families became involved in disputes that the parents had with one another about the circumstances in the other parent’s home. In the course of one such conversation by an electronic messaging platform, a maternal uncle (using the maternal grandfather’s phone) sent a message to the father in which he referred to “your dad [the paternal grandfather]” adding “you were involved in that” in an apparent suggestion that the father had in some way been involved in the paternal grandfather’s sexual abuse of the paternal grandfather’s step-daughter. Despite having raised this matter, no action was taken by the mother to limit the child’s time with the father and he continued to spend time with the father in accordance with the March 2021 orders.
In mid-2021 the mother and her partner began living together in a new home in the same area in which the mother has resided for some years.
In 2021 the mother gave birth to her third child (“the child’s half-sister”) and at this time the child spent 10 nights in the father’s care by arrangement between the parents.
In mid-2021 when spending time with him, the father says that the child was observed playing with his genitals. When questioned, it is alleged that the child said “poppy and [Mr E]” (the maternal grandfather and a maternal uncle) had touched his private parts but he had not told the mother as “it is a secret”.
Two days later, in mid-2021, the father told the mother about the child’s disclosure over text message. According to police records, in mid-2021 the father reported the child’s conduct and disclosure to police. A detective spoke to the child at the police station in the presence of the father asking the child “where does poppy touch you?” The child pointed to his head and when asked “does poppy touch you anywhere else?” the child responded “no”.
In mid-2021 the father’s solicitor wrote to the mother’s solicitor requesting that she give an undertaking not to allow the child to have any contact with the maternal grandfather and uncle pending police investigation. There is however no evidence that the police have ever investigated the matter.
At around this time the mother claims that the child reported to her that the father recently “touched” him and when asked “where?” the child pointed to his penis. In mid-2021 the mother’s solicitor responded to the letter from the father’s solicitor agreeing that she would not allow the child to come into contact with the maternal grandfather and maternal uncle and also informed the father that the child disclosed that the father helps him in the shower and touches his private parts.
At around the time both parents raised these matters of possible sexual misconduct, there was also a dispute between them concerning difficulties related to changeover of the child from the mother to the father. By this stage (mid-2021) the restrictions imposed as a result of the Covid‑19 pandemic were again in place including a “hard lockdown” of the mother’s local government area and the mother then also had the care of a newborn infant. For the purposes of the child’s time with the father, the mother proposed that changeover in mid-2021 be facilitated by a friend. This proposal caused concern for the father due to the significant health difficulties of himself and two of his partner’s children and the health implications if he or these children were to contract the Covid-19 infection. When the child was made available to the father at the changeover train station location by the mother’s friend, the father refused to take the child into his care.
In mid-2021 the mother reported the alleged disclosure made by the child that the father “touched” him and the difficulties that had occurred at changeover on the same day to police. Subsequently a report was made to the Departmental Helpline about the same matter.
A short time later, in 2021, the mother ceased making the child available to spend time with the father which she claimed at the time related to her concerns about sexual abuse arising from the child’s disclosure. Despite the reports to the Department and police, it appears that no active investigation of the child’s disclosure was undertaken at the time. In mid-2021 the mother’s previous solicitors ceased acting for her.
On 27 August 2021 the family attended at assessment interviews with the Family Consultant (as the Court Child Expert was then known) for the purposes of a Family Report.
After the mother was self-represented, the father attempted to have her agree to the child’s time with him resuming and permitting communication with the child but these attempts were unsuccessful. In a conversation with the father’s solicitor about the alleged sexual abuse, the mother also raised the issue of the paternal grandfather being incarcerated which heightened concern in her mind about the child’s alleged disclosure concerning the father’s conduct.
On 15 September 2021 the father filed an application for reinstatement of the child’s time with him and the proceedings were transferred to the Family Court for consideration of the dispute being allocated to the Magellan program.[1] Subsequently, the matter was allocated into the Magellan Program, the ICL was appointed and orders were made for the preparation of a Magellan Report.[2]
[1] The Magellan program is a “fast–track” case management program in the Family Court that deals with serious allegations of physical and sexual child abuse.
[2] A Magellan Report sets out the involvement of the Department with the family.
In late 2021 the father became aware through social media that the mother was taking steps to enrol the child in school to commence in 2022. A dispute ensued between the parents about the child’s readiness for school which they were unable to resolve.
On 16 December 2021 the Family Report dated 9 December 2021 (“the Family Report”) was released to the parties. The Family Report and the Court Child Expert’s evidence is a matter to which I will return. It suffices to record at this stage that each of the parents had raised issues about risks of harm posed by the other parent in their interviews with the Court Child Expert (“the expert”). The expert recommended that if the Court finds that the child is not a risk of serious harm in the care of either of his parents that the parents share parental responsibility, the child live with the mother and spend time with the father from Thursday afternoon to Sunday afternoon each alternate weekend until he commences school and thereafter from Friday after school until Sunday afternoon each alternate weekend and half of the school holidays. If the Court were to find that the child is at risk of serious harm in the care of one or both of his parents then it is recommended that the arrangements as to where he is to live and time with the other parent are dependent on the specific findings of the Court.
The day after the Family Report was released, 17 December 2021, the father filed an application seeking to restrain the mother from enrolling the child in school and to change the interim arrangements so that the child move to live with him. The application for restraint was listed for hearing on 14 January 2022 and the application for a change in the child’s interim arrangements was fixed for hearing on 11 February 2022.
In early 2022 the mother decided to recommence facilitating the child’s time with the father even though the child had not at that stage been interviewed about his disclosures concerning the father’s conduct. The mother resumed facilitating the child’s time with the father in early 2022 and thereafter engaged a new lawyer.
The parents ultimately resolved the issue of the child’s commencement at school by agreement and in early 2022 the mother consented to an order restraining both parents from enrolling the child in primary school for the 2022 school year.
The parents continued to experience some difficulties about changeover and raised concerns about the care of the child with the other parent in early 2022.
In early 2022 the parents attended a mediation and reached agreement for the child to continue living with the mother and for a small increase in his time with the father so that it occur from Wednesday afternoon to Sunday afternoon each alternate weekend and half of the school holiday periods. As agreement was reached between the parents the interim hearing on 11 February 2022 was vacated.
On 3 March 2022 interim orders were made with the consent of the parents (“the March 2022 orders”) reflecting the agreement reached at mediation as to the child’s time with the father and including an order restraining the mother from bringing the child into contact with the maternal grandfather and maternal uncle. This caused significant personal difficulties for the mother as, her relationship with the maternal grandfather had been largely repaired and she relied upon him to assist her in many matters including some care of the child which was prohibited pursuant to this injunction.
The parents were subsequently able to reach agreement between themselves about various other matters in relation to the child including his enrolment at an agreed upon pre-school.
In early 2022 the child was interviewed by police for the first time about the report made by the mother that he had disclosed sexual touching by the father in mid-2021. No further action was taken by police in relation to the matter.
In mid-2022 the five year old daughter of the father’s partner unexpectedly died. The child was not present in the father’s home at the time. The following morning the father contacted the mother to inform her of the events and asked that she not inform the child as the father was due to collect the child that afternoon and wanted to inform him of the events with his partner. The mother complied with the father’s request and also agreed that arrangements for the child’s time with the father in the upcoming school holidays be changed to enable the child to attend the funeral.
Notwithstanding their capacity to reach agreement about some matters, each parent continued to make allegations against the other concerning the care of the child. The father alleged that the mother permitted the child to come into contact with the maternal grandfather in breach of the injunction, a matter which the mother disputes.
In the months preceding the final hearing which commenced on 10 October 2022, the mother experienced personal difficulties including an increase in her anxiety and post-traumatic stress symptoms arising from her previous relationships with violent partners. She sought medical attention on two occasions in mid-2022 for these symptoms.
In 2022 the mother’s partner pleaded guilty to offences he had committed in late 2020, prior to meeting the mother. At the time of the final hearing he was refused bail and yet to be sentenced.
Just prior to final hearing the mother’s lawyer ceased acting for her and she thereafter represented herself.
THE HEARING AND MATTERS IN DISPUTE
At the commencement of the final hearing I had some difficulty clearly understanding the nature of the mother’s case from her Case Outline which she had prepared herself as a self‑represented litigant. Although the mother raised concern about the need to protect the child from harm and in particular harm arising from sexual abuse, she recognised that it is in the child’s best interests to have a meaningful relationship with his father and proposed orders that would see the child spend time with the father on a regular basis. The mother’s main contention appeared to be that given the nature of the child’s relationships and the pattern of care throughout his life, it is likely he would experience significant difficulties if he were to move to live with the father.
The contentions of the father having regard to the orders he sought at the commencement of the hearing and his Outline of Case were also somewhat unclear.
It was apparent however that each of the parents contended that some risks for the child were present in the other parent’s household if orders were made for the child to live primarily with that parent. A particular matter of concern for both parents were the mutual allegations that the child may be at risk of sexual abuse in the care of the other parent. For this reason, at the commencement of the hearing the father sought an injunction that the mother be restrained from bringing the child into contact with the maternal grandfather and maternal uncle unless supervised by a person agreed between the parents. This issue ultimately fell away in the course of the final hearing and at the completion of the evidence the injunction restraining the mother from bringing the child into contact with the maternal grandfather and uncle contained in the March 2022 orders was discharged. It was not contended by either parent in final submissions that the child would be exposed to an unacceptable risk of harm arising from possible sexual abuse in the care of the other parent and neither parent nor the ICL sought a finding or any orders in relation to these matters.
As it had become apparent just before final hearing that the mother intended representing herself, there was a court event to assess whether the proceedings were ready for final hearing. It became apparent at that court event for the first time that the mother’s partner was in custody in respect of a serious offence of personal violence but she was not seeking leave to rely upon an updated affidavit in relation to this matter and her current circumstances. At this court event the mother insisted that her partner was soon to be released. It was determined that it was appropriate to obtain accurate information in relation to the circumstances for the mother’s partner through a request of the relevant Local Court for the file in respect of his criminal proceedings, which the mother did not oppose. When the file was obtained and released the following day, it was apparent that there was no basis upon which the mother could assert with certainty that her partner was soon to be released.
At the commencement of the final hearing a few days later, I indicated that I would be assisted by hearing evidence from the mother’s partner given his role in the mother’s life and household and the possibility that his presence may pose a risk to the child. As the mother had not filed an affidavit from her partner, the ICL offered to call him to give oral evidence. An order was made for that evidence to be given by videolink from the prison in which the mother’s partner was incarcerated.
The matters which arise in the proceedings relevant to the child’s best interests have been accurately identified in the written submissions of the ICL and father.[3] These matters are:
·The practical considerations arising from the distance between the parents’ homes and as neither parent holds a licence or has regular access to a car;
·The mother’s capacity to care for the child;
·An assessment of the risks posed to the child by the mother’s partner who at the time of the final hearing was on remand awaiting sentence for an offence of violence;
·The father’s capacity to care for the child in particular having regard to his multiple health issues.
[3] The final written submissions of the mother, a self-represented litigant, consist of a single line in an email about the likely effect upon the child of any change in his parenting arrangements.
Each of these matters entail very limited resolution of competing versions of events. The risks said to be posed by the mother’s partner arise from the undisputed facts in relation to the offence to which he has pleaded guilty. His answers given in oral evidence and conduct and demeanour when giving that evidence are also undisputed and apparent from the transcript.
It is the father’s contention that the risks posed to the child by the mother’s partner together with shortcomings in the mother’s parental capacity and management of her mental health difficulties are such that it is in the best interests of the child to live primarily with him rather than the mother. There is little factual dispute concerning the mother’s mental health difficulties as the limited and unchallenged evidence about that matter largely comes from the mother herself. Evidence in relation to the father’s health is also largely beyond dispute as it also comes from the father himself.
The only factual disputes that require resolution relate to risks contended by the father to be posed by the mother relating to her parenting capacity. The father contends that these risks include the mother’s understanding of the harm experienced by children exposed to family violence, neglect of the child’s needs and management of her mental health difficulties. I will now consider the evidence in relation to each of these matters as submissions made on behalf of the father are based on disputed facts.
The mother’s understanding of harms associated with family violence
It is contended on behalf of the father that in these proceedings the mother significantly minimises the family violence to which the child was exposed when she was in a relationship with her former partner.
The mother’s affidavit evidence in relation to this matter is as follows:
I parented [the child] and [my other son] on my own and sometimes with the assistance of my former partner [name omitted] competently and lovingly until [mid] 2020 when there was a domestic violence incidence and [my former partner] attempted to [harm] me. My [former partner] and I separated after that incident. The police took out an ADVO application on my behalf and an ADVO was granted against [my former partner] for two years.
After that incident my parents looked after my two children for a few weeks whilst I got back on my feet. (as written)
Under cross-examination in relation to another matter (the strained relationship between the mother and maternal grandparents) family violence in the mother’s relationship with her former partner was incidentally raised in an answer to a question asked by the Court. With reference to this matter, the mother confirmed that the maternal grandparents “took the kids just to make sure they were away from us” following a domestic violence incident with the mother’s former partner in late 2019. The mother explained that after the maternal grandfather’s partner cared for the children she didn’t want to return them so the mother initiated proceedings to have her children returned to her care. The mother gave evidence that seeking a recovery order for the children against the maternal grandparents had led to significant strain between them. The mother confirmed that she understood why the maternal grandparents took that action at the time.
Later the mother was cross-examined about matters reported in documents produced by the Department in relation to incidents in which she was assaulted by her former partner on two occasions in early 2020. The mother readily identified that there were two assaults at this time and confirmed that her former partner had dragged her along the floor by her hair and harmed her over the two separate days, though she could not recall whether these assaults occurred over two consecutive days or the actual dates of these events. It became apparent however that the early 2020 assaults were the same incidents the mother deposed had occurred in mid-2020.
The mother initially said that she did not recall “all” the matters that had been reported to the Department including that the child was “present and screaming and banging on a window”. The mother subsequently said this in relation to the early 2020 assaults:
One of the days I remember him pulling me by the hair out of the front – like, out of the house, out the front door. And then when he [harmed] me, yes, he did push me on the lounge and the kids were present, but they went to their room.
The mother gave the following oral evidence in relation to the incident in which she was choked:
When he choked me I remember him pushing me on the lounge, putting his hands around my throat, and I ended up running into another room and calling the police.
The mother said that the child was present in the house during this incident and when asked about the impact of it upon the child she answered [he would have been] “scared, worried”.
The mother also agreed that despite her former partner having perpetrated this violence against her they now got along without difficulties and had reached an equal shared parenting arrangement in relation to their child. She later clarified that she and her former partner only “get along” for the sake of their child and that she doesn’t really speak directly to him but to his partner.
In answer to further questions by the Court, the mother confirmed that she maintained her allegations that the father had been violent towards her but agreed that he was not as violent as her former partner. She accepted that her former partner’s conduct amounted to “serious violence” and that “choking is probably about as bad a thing as can happen”. The mother maintained that her current partner does not have a record in relation to domestic violence nor had she experienced violence at his hands.
The mother later confirmed that one of the significant ongoing issues in relation to difficulties with her mental health arises from her experience of domestic violence in previous relationships. In this context she agreed that in mid-2022 she described her relationship with her former partner as “a very dv relationship” when consulting with a doctor adding that because of her past experience she finds it “hard to trust males”. The mother later agreed that one of the “big events” in her life was the significant violence perpetrated by her former partner.
The mother was later cross-examined about the behaviour of her other son as she was seeking assistance to have this child assessed for attention deficit hyperactivity disorder (“ADHD”). She agreed that it had been suggested to her that children’s behaviour can be badly affected by exposure to family violence and while she was not sure whether that was occurring with respect to her other son she agreed it “could be a factor”.
The mother said that her former partner’s violence had not caused her to change her attitude about the parenting arrangement for her other son and orders for that child’s time with his father, her former partner. The mother said that she is able to get along sufficiently well with her former partner and spoke of a “father’s right” to spend time with a child. She also said that she had a lawyer at the time who assisted her in formulating orders about a parenting arrangement for her other son which resulted in orders made by the Court with the consent of herself and her former partner. The mother later said that at the time her former partner had assaulted her she did not think that he had a right as a father to see his child and later agreed that she subsequently understood that the law supports a child’s right to have a relationship with both parents so long as it is in the child’s best interests.
Discussion and findings
I am not satisfied that in these proceedings the mother minimises the extent of the family violence perpetrated against her to which the child and her other son were exposed or that she does not now have an understanding of the harms to children through such exposure for the following reasons.
The father correctly identifies in his submissions that the mother provided limited information in her affidavit about the assaults perpetrated against her by her former partner. In her affidavit the mother refers to only one incident of violence (and it was subsequently revealed that there had been three such incidents), does not set out complete details of those incidents and in particular does not depose to her children being exposed to this violence. However, when a party is legally represented (as the mother was at the time the affidavit was filed) there is a limit to the extent to which that party can be held responsible for deficiencies in an affidavit. This is especially so when, as in this case, the mother was dissatisfied with the professional services of the lawyer who prepared and filed her affidavit. In the final hearing the mother expressed her dissatisfaction with her former lawyer, identifying basic errors in her trial affidavit (such as her name being incorrectly recorded) and at the hearing was representing herself.
In any event, even though the mother’s affidavit account of the incidents of family violence is incomplete she openly explained to the Court under cross-examination that there were two occasions when her former partner perpetrated violence against her. The first of these incidents was in late 2019 and the second occurred over two days in early 2020 (though the mother had deposed in her affidavit to the early assaults as a single event which occurred in mid-2020). It is of significance in my view, that the mother did not resile from the gravity of the early 2020 assaults and has at all times, including in her affidavit, deposed to serious details such as her former partner attempting to harm her. She also readily agreed that her former partner had dragged her by the hair on the other occasion in early 2020 and that her children were present in the home at the time.
In relation to the mother’s understanding of the seriousness of family violence I note that she has always maintained, including in her affidavit, that the most serious incident of family violence (the early 2020 assaults) caused her to separate from her former partner. I also attach weight to the undisputed fact that she reported this incident to police who sought and successfully obtained an ADVO for her protection and that at the time of each of the incidents she placed both of her children into the care of the maternal grandparents.
The mother was clear under cross-examination that placing her children in the care of the maternal grandparents had caused difficulties in her relationships with them as a result but maintained that it was the right thing to do. The maternal grandparents’ desire to continue to care for her children caused the mother to seek and obtain a Recovery Order for the return of these children which had led to significant strain between herself and the maternal grandparents (though it is noted that in the course of these proceedings that strain appeared to have eased somewhat). Despite wanting to care for her children herself, the mother openly confirmed that she understood why the maternal grandparents had sought to retain her children in their care at the time.
The father also appears to attach weight to the fact that the mother subsequently reached agreement with her former partner for equal shared care of their child (the mother’s other son) notwithstanding her former partner’s violence. It appears to be suggested that coming to this arrangement may indicate that the mother lacks understanding about the potential risks posed by a perpetrator of family violence. In assessing this suggestion I consider it significant that in these proceedings the mother did not at any time seek to excuse the conduct of her former partner or resile from her allegations against him. The evidence is to the contrary, particularly as the mother maintained that difficulties with her mental health that were still present in mid‑2022 (only months before the final hearing) related to her experience of violence at the hands of her former partners, being the father himself and more particularly her former partner.
Although the agreement reached between the mother and her former partner for a shared care arrangement for their child may be less than ideal, I consider that the mother was attempting to be child-focused, recognising the importance of a child’s relationship with each of his parents, which I note has also been her approach in these proceedings. The mother as a victim of family violence was in the invidious position of not wishing to deny her other son the right to a relationship with his father even though the child’s father had perpetrated serious violence against her. In this regard I also attach weight to the fact that the mother was legally represented in respect to her application for parenting orders for her other son and that the orders were made by a Court, which it may be inferred was satisfied that the orders were in the best interest of that child.
In all of the foregoing circumstances, I am satisfied that this Court was informed through the mother’s evidence of the serious nature of the violence to which she was subjected in past relationships and to which the child was exposed. I am also satisfied that the mother understands the impacts of family violence upon children exposed to it, and has taken reasonable steps in the circumstances to protect her children from those consequences.
Risk of harm posed by the mother arising from alleged injuries when in the mother’s care
As noted when setting out the background to this dispute, the father in his affidavit deposes to a number of occasions on which he says the child was injured in the mother’s care and that in his opinion the mother had not provided an adequate explanation for the injuries. It is his case that the mother’s neglect in failing to adequately supervise the child has led to the child being injured. The mother denies that any shortcomings in her care have resulted in the child being injured and that any injuries the child may have received at times are as may ordinarily be expected to occur having regard to the child’s age and stage of development.
In his trial affidavit the father deposes that he started to become concerned from about 2018 about the mother’s parenting and the child’s presentation. He says that on around late 2018 he noticed the child had a “black eye” when the child came into his care. He deposes to contacting the mother and asking about the black eye and that the mother gave the explanation that the child had fallen “as boys do”. The father does not depose to seeking medical attention for the child on this occasion or making any notification to the Department about it.
The father next deposes to observing the child to have a sore on his fingers that “looked like a burn” in early 2019 and to contacting the mother and questioning her about it. He says that the mother explained that the child had “picked up ash and burnt his fingers” when with the maternal grandfather’s partner. The father did not himself seek medical attention for the child’s injury at the time and there is no record of this matter being reported to the Department. Under cross-examination the mother said that she could recall the occasion when the child burnt his fingers in the care of the maternal grandfather’s partner who reported she had treated the burn by “putting it under cold water”.
The father also deposes to observing a mark on the child’s right arm in early 2019 which he thought looked like a “lighter burn” and to speaking to the mother who could not shed any light on the matter.
In his affidavit the father says that there was another occasion in mid-2019 where he saw a red mark on the child’s wrist and the mother’s explanation was that oil “spat” on the child in the kitchen. The mother confirmed this explanation under cross-examination.
The father suggests in his affidavit that each of the last three burn injuries were not insubstantial as he refers to applying cream and to the injuries “eventually” healing. He does not however depose that he sought medical attention in relation to any of these injuries and none of these matters were reported to the Department at the time.
The father further deposes that in mid-2019 he observed that the child’s nose had a scratch and was bruised when the child came into his care. When he contacted the mother asking her what had happened, the mother said that a cat had scratched the child and that the bruise was caused by a fall.
The father annexes to his affidavit photographs he took between late 2018 and mid-2019 of the child’s injuries just described. I am unable to draw any conclusions about the alleged severity of the injuries except to observe that they appear consistent with the father’s descriptions in his affidavit.
Although the father does not depose to any particular incident that gave rise to concerns about the child being injured in the mother’s care, it is recorded in the Magellan Report that in mid-2019 a report was made about physical abuse and neglect at that time. The Magellan Report records that it was reported the child had sustained bruises and nappy rash and looked untidy and often sick when in the mother’s care. It was also reported that the mother’s home was a “disgusting mess”, that she was smoking an illegal substance, had two mental health disorders for which she was not medicated and was in a new relationship and pregnant. This single report was closed by the Department without further assessment.
There is no dispute between the parents that the last-mentioned notification was made two days after the father sent a message through a social media application utilising the phone of his then partner informing the mother that the child was “staying with” him and that he thereafter retained the child in his care until late 2019.
According to the father’s affidavit, in mid-2019, the day the notification was made, he received a telephone call from the mother’s lawyer requesting that the child be returned to the mother. The father was away from his home at the time, working in a regional location and his second former partner was then caring for the child.
The father does not provide any reason in his affidavit why he retained the child (aged two at the time) in his care for four months and in particular does not depose to any concerns he then held about risks posed by the mother in caring for the child. There is also no dispute that agreement was reached after the mother initiated proceedings for the child to be returned to her.
Under cross-examination the father was asked about the incidents between early and mid-2019 in which he complains about burns and bruises the child received when in the care of the mother. The father agreed that these events occurred prior to his retention of the child from mid-2019 but confirmed that when he took that action he had concerns about the care the child was receiving from the mother and that the mother was not coping with looking after her children. When the father was asked whether he had reached out to the mother to provide her with some support given his view at the time was that she was struggling, the father said he could not recall but agreed that he did not communicate with the mother after retaining the child in his care. Although the father initially claimed that he was “blocked” from communicating with the mother on her social media platform, he agreed that there would have been many other ways he could have made contact with her.
There is one other matter referred to in submissions made on the father’s behalf about concerns in relation to the mother’s care of the child and possible neglect giving rise to injuries. This is a notification made to the Department (recorded in the Magellan Report) in late 2019 when it was reported the child had bruises and burns while in the mother’s care and that she struggled with the care of her two children. The father does not depose that he had particular concerns of this nature at that time and the focus of his affidavit concerning this period relates to difficulties in communication between him and the mother and in making arrangements for changeover for the child. According to the Magellan Report, the notification made in late 2019 was forwarded to the local office of the Department and closed without further assessment.
The last matter in relation to the father’s concerns about the mother’s care and suggestions of neglect and lack of supervision relates to an incident in early 2021. The father deposes to the paternal grandmother collecting the child from the mother and observing that he had “severely burned fingers” which had been covered by band aids which had fallen off when the child had a bath. The child was taken to a hospital close to the paternal grandmother’s home at the father’s request. He deposes to the child’s burns being “dressed properly” and that the doctors reported the injuries to the Department. The father also deposes that the following day the paternal grandmother took the child to the “burns centre” at a larger hospital on the advice of doctors at the first hospital where the injuries were re-dressed and a plan for management was given.
According to the Magellan Report, in early 2021 it was reported to the Department that the child burnt three fingers getting a hot chip out of the oven while in the mother’s care and that the mother applied band aids but did not take the child to the hospital. It is recorded that the reporter had concerns that the mother would not take the child to the follow up appointment that was booked at the hospital. The Magellan Report records that in early 2021 caseworkers from the Department attended at the mother’s home to discuss the reported concerns. Although the home was noted to be untidy, no hazards were identified and the mother spoke openly with the caseworkers and allowed the caseworkers to accompany herself and the child to the doctor.
It is also recorded in the Magellan Report that the doctor advised the mother and caseworkers on the same day that the child’s injuries were superficial partial-thickness burns to three of his fingers and were consistent with the mother’s explanation that the child attempted to take a tray of hot chips out of the oven. It is recorded that the mother explained that this event occurred on an evening in early 2021 and that at the time she was attempting to shower her other son and was not outside of the house as reported. The mother explained the first aid she applied to the burns which was in line with advice she had been given for a previous burn injury which involved running cold water over the child’s fingers for 20 minutes before applying burn aid gel and wrapping his fingers with bandages and giving the child Panadol.
It is recorded in the Magellan Report that the mother explained she had informed the father immediately of the incident and advised him of the first aid she applied. She also advised that the following day the child attended day care and no concerns were noted by the day care staff in relation to the child’s fingers or him being in any pain.
The father annexes to his affidavit photographs taken in early 2021 of the child’s injuries. Once again, I can draw no conclusions from these photographs about the seriousness of the child’s injuries. In relation to this matter it is noted that the Emergency Department (“ED”) discharge referral records observations of ruptured blisters on three of the child’s fingertips which are described as “superficial” burns of the fingertips. It is recorded that the paediatric registrar was to be informed and that the notes from the paediatric registrar record “GP to follow up in three days times to review the burn wounds and to review social support level and child safety at home please”. The mandatory notification to the Department is also noted.
The mother was cross-examined about the child sustaining the burn injury in early 2021 and maintained that she had informed the father of this burn, administered the first aid that she understood was appropriate and that she ultimately presented the child for medical treatment at a later stage. There is no record to indicate that the paternal grandmother was asked to present the child to a “burns unit” or that this occurred as the father deposes in his affidavit. It is also recorded in the Magellan Report that the child’s doctor confirmed that the burns on the child’s hands had healed and that the mother had attended doctors as directed.
Discussion and findings
I am satisfied to the requisite standard[4] that there were some occasions on which the child suffered minor injuries when in the care of the mother.
[4] s 140 of the Evidence Act (1995) Cth provides that the requisite standard is on the balance of probabilities.
Although the father attaches significant weight to this matter in these proceedings, I am not satisfied that he authentically had serious concerns that the child was injured due to shortcomings in the mother’s care including inadequate supervision at the time of these events for the reasons that follow. For the same reasons, I am of the view that it was somewhat opportunistic for the father to have separated the child, then aged two, from the mother at the time and to suggest in these proceedings that these minor injuries give rise to a risk that the child may be further injured in the mother’s care.
First, there is no evidence to suggest that on any occasion the father’s own concern about the child’s injuries and presentation caused him to seek medical attention for the child. Further, there is no dispute that on all but one occasion the mother provided explanations for those injuries at the time which do not appear to be implausible.
There was only one occasion on which the child was presented for medical attention in relation to any injury, and in that case it was the paternal grandmother who presented the child at the ED in early 2021. Although the injuries on that occasion were assessed as “superficial burns to the fingertip” the father relies on that incident to a significant extent to advance his contentions about the mother’s lack of care.
In my view, there is a level of exaggeration in the father’s evidence concerning the seriousness of the child’s injuries generally. For example, in his affidavit the father describes each of the child’s injuries as “wounds” and deposes that they “eventually” healed after he provided treatment, even though he did not regard the injuries as serious enough to require medical attention. The father describes the child’s fingers as being “severely” burned in early 2021 and claims that he received treatment from a “Burns Centre” when there is no evidence of such an attendance and the only medical evidence is that the burns to the child’s fingertips were “superficial”.
I am also satisfied that the mother provided explanations to the father and to the Court for the child’s injuries and the treatment she provided. In my view, those explanations appear to be consistent with the severity of the burns and the treatment provided by her also appears appropriate in the circumstances on the available evidence.
On the one occasion that medical treatment may have been warranted the mother took the child at the request of caseworkers to a general practitioner who confirmed the diagnosis of hospital staff and thereafter continued to present the child so appropriate treatment could be received.
Further, none of the matters complained of by the father other than the early 2021 notification gave rise to any report to the Department about alleged neglect at the hands of the mother. The sole investigation by the Department in relation to the child’s injuries in early 2021 did not result in any assessment by the Department that the mother was in some way responsible for the child’s injuries including through neglect or inadequate supervision or that the injuries were particularly serious. There is no substantiated allegation of neglect or risk of harm posed by the mother related to injuries sustained by the child in her care.
For the foregoing reasons, I am not satisfied that there are shortcomings in the mother’s supervision of the child or that he is or has been otherwise neglected in the mother’s care. I am also satisfied that none of the minor injuries observed by the father from time to time or reported to the Department give rise to concerns about the adequacy of the care provided by the mother.
Allegations concerning the state of the mother’s home and excessive/inappropriate discipline of the child
As noted in the background to this dispute, a number of notifications have been made to the Department over the years in relation to the child including a number of reports related to alleged inadequacies in the mother’s care. In particular, notifications have been made about the mother using excessive or inappropriate discipline on the child and concerning the unsatisfactory state of her home. It is contended on behalf of the father that these matters in combination with other risk factors present in the mother’s care support his proposal that it is in child’s best interests to move to live with him.
As discussed, the mother denies that any inadequacy in her care of the child has resulted in physical injuries arising from neglect. She also denies that the state of her home and caregiving give rise to any risk of harm to the child.
The father’s evidence in relation to these matters mainly arises from reports made to the Department rather than matters contained in his affidavit. It is recorded in the Magellan Report that from early 2017 the Department received 21 reports concerning the child, 15 of which alleged a risk of serious harm. Some of these reports do not relate to alleged concerns about the mother. There were only two occasions on which the reports led to further action by the Department (described as two periods of “allocation and assessment” or “casework”), each of which relate to reports made concerning the mother.
The first report that lead to a period of casework in 2017 was made in the early part of that year. At that time it was reported that the mother was homeless, had strained relationships with her parents and the father and had a chaotic life. She was noted by the reporter to be immature and it was reported that she may have a mild intellectual delay.
In the part of the Magellan Report that outlines the casework and assessment done in this period, it is recorded that the caseworker initially had difficulty making contact with the mother and that the mother was reluctant to engage. However, it is reported that in mid-2017 a caseworker did perform a home visit to the mother at the home of the maternal grandmother. The mother advised the caseworker that she had separated from the father and intended to reside with the maternal grandmother after the child’s birth. It is recorded that the caseworker observed the mother had the support of her parents and step-parents at this time and demonstrated that she was managing her mental health, including through counselling and taking medication for depression. It is also recorded that no child protection concerns were observed during the visit and the home was observed to be neat and tidy.
No evidence has been adduced to suggest that the mother was homeless at this time.
The suggestion that the mother may have a mild intellectual delay was explored at the hearing. The mother presented as quite competent in conducting her case including when conducting cross-examination. She also gave uncontradicted oral evidence that she had never been diagnosed with an intellectual delay, had completed her education to year 11 level in mainstream classes and had undertaken some further education and training through TAFE. In short, there was no evidence to support the report that the mother may have a mild intellectual delay.
A second pre-natal report was made to the Department during this period in mid-2017, a short time before the child’s birth. At that time it was reported that the mother expressed suicidal thoughts and was not engaging with the mental health team and that the father was contacting the mother by text message and stressing her. In the Magellan Report this notification formed part of the safety and risk assessment in which casework was conducted by the Department between early and mid-2017. The outcome of the Department’s safety assessment in relation to both matters reported in 2017 was “safe” and it was identified that the mother had adequate supports in place as she prepared for the child’s arrival. Although the outcome of the risk assessment was “moderate” the Department closed their casework with the mother at the end of mid-2017, prior to the child’s birth.
In his affidavit the father deposes to being concerned about the mother’s mental health since early in their relationship. He says that the mother disclosed at an early stage that she had been diagnosed with a disorder and prescribed medication and in around late 2016 or early 2017 made a number of unusual comments to the effect that she could not proceed with the pregnancy due to stress. In her affidavit and under cross-examination the mother agreed that she had been diagnosed with a disorder but she was not cross-examined about any of the other concerns the father claims to have had related to her mental health difficulties.
In his affidavit the father does not depose to any concerns he had about the mother’s strained relationship with her parents, chaotic lifestyle or suicidal thoughts in 2017. He raises no matters about the mother that suggest that she was not providing adequate care to the child as a newborn infant and in his affidavit the first concerns he deposes to concerning the mother’s parenting are from 2018 and relate to the child’s physical injuries and presentation as discussed previously.
As noted when considering his allegations about the level of supervision and neglect in the mother’s home, the father does not provide any reason in his affidavit for retaining the child in his care in mid-2019. He does however in his affidavit express having concerns about the lack of stability in the child’s life at around this time and arguing with the mother about the child spending more time with the maternal grandparents than with her. The father also agreed under cross-examination that concerns about the mother’s care were one of the reasons that he withheld the child from her but there is no dispute that once the mother initiated proceedings agreement was reached between the parents that the child would be returned to live with the mother.
In submissions made on the father’s behalf about other matters concerning the mother’s care of the child reference is made to a notification made to the Department in mid-2019, two days after the father advised the mother he would not be returning the child to her. As previously noted, this notification did not result in any further assessment or casework by the Department and there was no other period of allocation and assessment in relation to the mother’s care of the child until March 2021.
In final submissions made on his behalf, the father also relies upon a number of reports made to the Department (and one report made by police) about the mother’s care of the child even though he does not depose to matters at around this time that gave rise to his own concerns.
Reports of physical abuse, neglect and psychological harm made to the Department in early 2020 are identified by the father as examples of “concerns about the mother”. However, these allegations are identified in the Magellan Report as being contained in a Notice of Risk (inferentially filed by the father in these proceedings). The allegations were not treated as risk of serious harm reports and are recorded as “closed at Helpline” as they related to historical information.
Similarly, the father relied on reports made to the Department in late 2020 of physical abuse, neglect and psychological harm as well as a prenatal report in relation to the mother’s then unborn child as examples of concerns about the mother. The Magellan Report indicates that some of these matters were treated as “historical information already known”. Although they were designated as risk of serious harm reports which required a response within less than 24 hours, it is recorded that when forwarded to the After Hours Crises Response Team the Departmental history was reviewed. The report was referred to a local branch of the Department for response but was then closed at that local branch without further assessment. Anonymous reports of physical abuse made to the Department on the same day were similarly treated as risk of serious harm reports and when forwarded to the local branch of the Department were closed without assessment.
As previously indicated, only two of the reports made to the Department have resulted in further assessment and casework in relation to the child. The first period in 2017 has been discussed. The second period of casework provided by the Department to the mother in relation to reports that had been made about her care of the child was between early and mid-2021. The first matter complained of at the time, being concerns about neglect in the report of early 2021 (related to the burn on the child’s fingertips) has been previously considered.
The father also relies upon a report made in mid-2021 of “poor hygienic standards” in the mother’s home. As previously indicated, the casework undertaken at the time is reported in the Magellan Report to include visits to the mother’s home which although found to be untidy did not contain identified hazards or dirty nappies as had been alleged. The Magellan Report records that casework during this period included a number of home visits and that in the final risk assessment there were no child protection concerns noted.
The father identifies that the mother’s partner was asked by the Court whether it has ever been suggested to him that he may be assisted in doing some programs or courses in relation to parenting, to which he replied “I don’t think there’s nothing wrong with my parenting” but indicated he was willing to attend if the Court made an order for him to do so. It is submitted on behalf of the father that given the mother’s partner’s inability to self-reflect, the Court cannot have confidence that he would take these matters seriously and attend a parenting course
The ICL submits that there are some concerns about the mother’s partner’s use of physical discipline of the child but that such discipline would fall within the bounds of lawful chastisement. I agree with the contention of the ICL that while the mother’s partner’s use of physical discipline is concerning, the risk to the child could be mitigated by a restraint which is proposed by all parties that the parents take all reasonable steps to prevent any person using physical discipline with respect to the child.
The ICL also contends that the mother’s partner’s conduct in court is somewhat concerning and does indicate an inability to control his emotions. The ICL adopts the evidence of the expert and submits that if the mother’s partner conducts himself as he did in the public environment of a court hearing then it can be presumed he also does so in the home setting. However, the ICL observes that the mother’s partner had almost no notice that he would be asked to give evidence, and he did so disconnected from the broader proceedings and without the benefit of a legal representative for the mother explaining the reason for his required attendance at court. The ICL submits that these matters are likely to have heightened the stress of giving evidence and for this reason the Court should consider the matter of the mother’s partner’s conduct in court in the proper context. I accept this submission of the ICL, especially in light of the evidence of the expert who also accepted that these factors may have affected his conduct in court.
I accept the submission of the ICL that taking into account all of the matters detailed above, the mother’s partner does pose some risk to the child but I do not consider it reaches the magnitude of an unacceptable risk. Of significance, although the expert was aware of all of the risks associated with the mother’s partner she did not suggest that these risks could only be mitigated to an acceptable level through a change in the child’s residence.
Although I hold some concerns about the risk posed to the child by the mother’s partner, these risks in my view can be mitigated. Under cross-examination, the expert explained that reflective capacity is something that can be developed including through a suitable course such as Circle of Security which focuses specifically on those skills. The expert also explained that such courses teach parents to think about the reasons for children’s behaviour and the impact of different ways of disciplining children and managing those impacts.
I accept the submission of the ICL that the mother’s partner provides stability and support for the mother. Until his bail was revoked the mother’s partner provided regular income to the household. It is clear from his oral evidence and from comments made to the expert in the course of assessment that the mother’s partner also provides support to the mother in caring for her three children and in managing her mental health difficulties. For this reason, I do not accept the submission made on behalf of the father that the Court would have no confidence that the mother’s partner would not take these concerns held by the Court seriously, particularly if orders were made for the mother to attend a parenting program such as Circle of Security as proposed by each party.
The father
As previously noted, the father suffers from a number of health conditions which may impact his capacity to care for the child and meet the child’s needs.
In his trial affidavit the father deposes to having had severe asthma since he was a child but that he has not had a “large attack” or been hospitalised in the past two years. He deposes to a single episode in early 2020 when the child was in his care and he had difficulty breathing when he awoke and an ambulance was required to be called and that he was hospitalised. Under cross-examination it came to light that he also had an asthma attack in mid-2020 which again required him to be hospitalised and led to a medical condition that he continues to experience. Under cross-examination the expert explained that at the time of assessment the father informed her that he had serious asthma and had had two hospitalisations including a serious admission which had triggered his medical condition but did not report any other medical conditions.
The father’s oral evidence in respect of his asthma is somewhat inconsistent with his affidavit evidence. Under cross-examination the father gave evidence that he has a chronic medical condition and as noted it came to light that he had suffered a second episode that resulted in hospitalisation. The father also gave evidence that he has been admitted to hospital approximately four to five times in one year and that he is currently under the care of a clinic at a hospital. It is clear from the father’s affidavit and submissions made on his behalf that the father relies on his partner significantly to manage the risk posed by his medical condition. The father deposes that his partner is always present when the child is in his care and that this would continue if the child were to move to live with him as he proposes. He submits that on the one occasion that he did have a severe medical episode when the child was in his care in early 2020 his partner called an ambulance for him and the child stayed in his partner’s care when he attended hospital. The father submits that the presence of his partner in the household is a strong protective factor and that she is highly attentive and organised with respect to managing the additional needs of her own children.
The father does not depose to having any other health conditions in his trial affidavit but under cross-examination gave evidence of the other adverse issues with his health. The father explained that due to this condition he experiences weakness in his arms which causes him difficulty in holding his arms up. When asked if he can hold the child in his arms, the father responded that he could but “only for no more than eight minutes”. He also explained that this weakness causes him difficulty in driving and has prevented him from obtaining his licence. The father was unable to indicate when he became aware of the medical condition that caused this weakness in his arms. He also gave concerning evidence that he continues to smoke two cigarettes a day despite being warned that it is potentially life threatening for him to continue to smoke due to his condition.
Under cross-examination the father stated that he also suffers from another medical condition and is required to donate blood each month to manage this condition. Additionally, the father experiences bunions on his feet and is required to attend a foot clinic every two to three months to manage this condition. Ultimately, under cross-examination the father accepted that the medical conditions he suffers from cause him to be impaired in being able to carry out many of the ordinary everyday tasks of life.
The father lives with his partner and her two children, aged eight and four. As previously outlined, the father’s partner’s five year old daughter tragically passed away in 2022.
In an affidavit filed on the father’s behalf, the father’s partner deposes that her older child has a medical condition and can have severe medical episodes that result in hospitalisation and under cross-examination gave evidence that this child also has developmental delay. The father’s partner explained that she receives support for the care of her older child from social workers who attend her home for four hours per fortnight and that her older child attends various therapists and a dietician. The father’s partner further explained that due to the risk of medical episodes, her older child requires an adult to be around her at all times and that she or a support person generally fulfil that role. She also stated that she generally only ever leaves the home to do the shopping once a fortnight for approximately one hour or to take the children to the playground. The father’s partner gave evidence that her younger child is currently being monitored due to concerns that he may be at risk of also developing the same condition and he is currently at the age that his two siblings first developed this condition.
Under cross-examination the father’s partner agreed that she would have some responsibility for the child if he came to live with the father. It is clear from the father’s partner’s evidence that both she and the father play an active parenting role in the care of both her children and the child of these proceedings including both being responsible for disciplining the children and in assisting their educational needs.
When asked whether she had any concerns for the child due to the father’s medical condition and in particular his weakness with his arms, the expert stated that her main concern is in relation to difficulties with driving and the practical difficulties associated with travelling to changeovers in circumstances where neither parent has a licence. The expert stated that her main concern in relation to the father’s asthma is ensuring that there are provisions made for the child in an emergency and in particular that other adults can be quickly contacted if the father experiences an asthma attack when the child is in his care. The expert was asked about the full time supervision of the father’s partner’s older child due to that child’s disability and risk of seizure. The expert opined that this requirement this would cause stress and pressure in the paternal household and her main concern is ensuring that the father and his partner access appropriate supports to assist in managing these pressures. The expert confirmed that the father’s partner informed her that she has regular support of this nature in the household.
When the expert was informed of the father’s oral evidence in relation to his medical conditions, she agreed that this meant the father had a greater degree of disability than she was previously aware of. The expert accepted that the totality of evidence in relation to the father’s medical conditions could raise the potential of casting an additional burden on the father’s partner in terms of practical day to day matters associated with caring for the child and that there is potentially a concern that she may become overloaded bearing in mind her responsibilities in caring for her children, including a child with a significant disability.
It is contended by the ICL that the father’s failure to disclose the full extent of his health conditions in his affidavit or to the expert is concerning as it may indicate that the father either does not have sufficient understanding of the effect that these conditions will have on his ability to care for the child if orders are made as he proposes, or that he has taken the view that his partner’s presence is sufficient to mitigate the risks arising from these medical conditions.
It is submitted on the father’s behalf that there are many parents in the community who live with and manage chronic illness as they parent their children and in this case the child has spent regular overnight time with the father since he was five months old. It is further contended that at no time during the proceedings has the mother raised any issues about the father’s physical limitations impeding the father’s ability to care for the child or produced any evidence that these conditions have in fact impacted his ability to care for the child. It is further noted on behalf of the father that his medical treaters were subpoenaed as early as 2021 and at no time has the father’s health been raised as an issue in the proceedings. In these circumstances, it is submitted by the father that it is not fair or reasonable to criticize him for failing raise these matters in his affidavit when he himself does not consider them to impact his parenting capacity.
I accept the submission of the ICL and the father that the father’s conditions appear to be managed and do not appear to impact his ability to care for the child. However, in my view, the weakness in the father’s arms caused by a medical condition does impact upon his capacity to care for the child as it is clear from the father’s oral evidence that there is a realistic possibility that he will never be able to obtain his licence due to this condition.
I also accept the submission of the ICL that the father’s asthma presents the most significant risk to the child as there is a realistic possibility that if orders are made as the father proposes, there may be occasions on which he experiences an asthma attack when the child is alone in his care.
It is clear from the evidence of the father and the submissions made on his behalf that the father believes that the presence of his partner is sufficient to mitigate this risk. However, there is no certainty that the father will remain with his partner notwithstanding his intentions, especially in light of his previous pattern of relationships.
Since separation only five years ago the father has had three significant relationships. The father agreed under cross-examination that he was engaged to his first former partner but this relationship was ultimately short-lived. On his own evidence the father’s second former partner played some role in caring for the child but that relationship was also short-lived. Although it appears consistent with submissions made on his behalf, that the father’s relationship with his partner is more stable and has greater longevity, there can be no certainty that it will endure throughout the time the child needs significant care from parental figures.
The father has no demonstrated capacity to undertake the role of primary caregiver on his own and his significant health issues as discussed would raise serious challenges for him undertaking such a role. As previously explained, the expert considered the father’s proposal that the chid move to live with him but did not recommend that such a change occur unless the Court were satisfied that the child would be placed at an unacceptable risk of harm if he were to live with the mother.
Family violence involving the child or a member of the child’s family
Although the mother deposed to having experienced some family violence at the hands of the father (which he denies) such allegations relate to the father’s conduct many years ago. Neither the mother nor the ICL contend that there is any evidence to suggest that the father has perpetrated any family violence since separation or that there is an unacceptable risk that the child will be exposed to family violence perpetrated by the father or any other person should he live with either parent in accordance with the two proposals under consideration.
The only issue related to family violence that formed part of either party’s submissions or contentions in these proceedings related to family violence perpetrated by the mother’s former partner to which the child was exposed some years ago. For the reasons given, I am satisfied that the mother is aware with all the harms associated with a child’s exposure to family violence and there is no evidence to suggest that her partner may perpetrate such violence against her to which the child may be exposed.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child
This is not a significant matter in these proceedings as it is difficult to predict whether either suite of orders is less likely to lead to the institution of further proceedings in relation to the child.
CONCLUSION
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[11] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parents will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[11] (2006) FLC 93-286
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
Each of the parties and the ICL agree that in accordance with the legislative presumption, it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. There is no evidence to rebut the presumption and accordingly an order was made on 8 November 2022 that the parties share parental responsibility equally.
Other parenting orders
There is a legislative requirement for me to consider whether the child spending equal time or substantial and significant time with each of the parents would be in his best interests and reasonably practicable. In these proceedings it is clear that given the distance the parties live from one another, as neither holds a driver’s licence and may not hold one in the future and neither may have access to a car in the future, it is not reasonably practicable for the child to spend equal time or substantial and significant time with both parents and neither parent or the ICL seeks such orders.
As explained in the foregoing Reasons, I attach particular weight to the nature of the child’s relationships with each parent and the likely impact upon the child in the event that he were to move to live with the father as the father proposes. For the Reasons given, I attach weight to the expert’s opinion and her recommendation that the child remain living with the mother unless I find that the mother or the circumstances of her household raise an unacceptable risk of harm for the child. Although the father contends that there are some risks present in the mother’s household posed by both the mother herself and her partner, he does not contend nor am I satisfied that the magnitude of such risks is unacceptable and may only be mitigated by a change in his living arrangements.
For these reasons and taking into account each of the other best interests considerations as discussed, I am satisfied that it is in the child’s best interests to remain living with the mother.
As indicated, I also consider that the child does receive a benefit from having a meaningful relationship with both parents but for the reasons given do not accept the contention of the ICL which is supported by the mother, that orders should be made for the child to spend each alternate weekend with the father to foster this relationship. Although orders for the child’s time with the father in these terms was recommended by the expert, as explained, the expert was relying upon incomplete and somewhat inaccurate information about the practical difficulties and onerous conditions upon the child associated with the travel that would be entailed if orders are made for the child’s time with the father as proposed by the ICL. Attaching particular weight to this submission, I am not satisfied that the ICL’s orders for the child’s time with the father are in the child’s best interests.
In my view, the alternate orders proposed by the father for the child’s time with him (in the event that the child is to live with the mother) are those which are proper and best meet the child’s best interests. Spending time with the father each four weeks and on some additional occasions during the term time and for a little more than half the school holiday time, will foster and maintain the child’s meaningful relationship with his father. Having regard to the balance of the best interests considerations and attaching particular weight to certain considerations for the reasons explained, I am satisfied that the orders made at the forefront of this judgment are proper and in the child’s best interests.
I certify that the preceding two hundred and eighty-two (282) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 19 January 2023
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