Gallagher and Sand and Anor

[2016] FCCA 294

FEDERAL CIRCUIT COURT OF AUSTRALIA

GALLAGHER & SAND & ANOR [2016] FCCA 294

Catchwords:
FAMILY LAW – Parenting – whether there should be shared parental responsibility – Which parent the child lives with.

Legislation:

Family Law Act 1975 (Cth), ss.5, 11F, 60B, 60CA, 60CC, 60DA, 69ZW

Applicant: MR GALLAGHER

First Respondent: MS A SAND

Second Respondent: MS B SAND

File Number: DGC 612 of 2011

Judgment of: Judge Phipps

Hearing dates: 14 & 15 September 2015

Date of Last Submission: 15 September 2015

Delivered at: Dandenong

Delivered on: 17 February 2016

REPRESENTATION

Counsel for the Applicant: Mr Williams

Solicitors for the Applicant: Robert Halliday & Associates

The First Respondent: Appearing on their own behalf

The Second Respondent: Appearing on their own behalf

Counsel for the Independent Children’s Lawyer: Mr Arnold

Solicitors for the Independent Children’s Lawyer: McCormack & Co Solicitors

ORDERS

1. That all previous parenting orders for the child X born (omitted) 2006 are discharged.

2. That the father have sole parental responsibility for the child.

3. That the child live with the father conditional upon the father living in the home of the paternal grandparents.

4. That the child spend time with the mother as follows:

   (a)Each alternate weekend from the conclusion of school Friday to the commencement of school Monday;

   (b)For one week of the school term holidays as agreed and in default of agreement the first week in odd years, and for the second week in even years;

   (c)For half the school summer holidays week about as agreed and in default of agreement the first week in odd years and the second week in even years;

   (d)From 10.00am until 8.00pm Christmas Eve in each year;

   (e)For three hours on the child’s birthday each year and the mother’s birthday each year as agreed and failing agreement from 4.00pm to 7.00pm;

   (f)From 10.00am to 5.00pm on Mother’s Day;

   (g)At such other times as agreed in writing between the mother and the father.

5. For the purposes of school term vacations, the first week commences at the conclusion of school and concludes at 5.00pm on the second Saturday of the school term vacation and the second week of the school term vacation commences at 5.00pm on the second Saturday of the school term vacation and concludes at 5.00pm on the third Sunday of the school term vacation.

6. That all changeovers other than at the child’s school be as agreed between the mother and the father.

7. That the mother and father communicate with each other via text message regarding arrangements for the child.

8. That the mother’s time with the child be suspended as follows;

   (a)Each year from 8.00pm Christmas Eve to 10.00am on Boxing Day;

   (b)On the fathers birthday from 10.00am for the rest of the weekend;

   (c)On Father’s Day from 10.00am to 8.00pm.

9. That the father authorise the principal of the school which the child attends to provide the mother at her expense with copies of all school notices, newsletters, reports and invitations to school functions that the mother and the father be entitled to attend including parent teacher nights, sports days and other activities normally attended by parents of the child’s school.

10. That the mother be restrained from taking the child to any medical practitioner apart from her regular general practitioner without first obtaining the written consent of the father except in the case of an emergency.

11. That the order appointing the Independent Children’s Lawyer is discharged.

12. That otherwise all extant applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Gallagher & Sand & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 612 of 2011

MR GALLAGHER

Applicant

And

MS A SAND

First Respondent

And

MS B SAND

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is the father, the first respondent the mother and the second respondent the maternal grandmother of the child X born (omitted) 2006 aged 10.

2. The father commenced this initiating application on 8 July 2014 applying for a recovery order for the child.  The existing order provided for the child to live with the father and spend time with the mother and the maternal grandmother.

3. All parties were represented on the first court date on the 21 July 2014. Orders by consent on that day provide for the child to be returned to the father, that the father and the child live with the paternal grandparents and that the father be restrained from bringing the child into contact with Ms H.

4. The maternal grandmother filed a contravention application on 14 May 2015 and the father filed a contravention application on 3 July 2015.  On the same day the father filed an amended application and an application in a case.  The initiating application had already been fixed for final hearing when the two contravention applications and the application in a case were filed.  The father was withholding the child from the mother and the maternal grandmother and his application in a case was for a suspension of the orders for the child to spend time with the mother and the maternal grandmother.  A consent order on 15 July 2015 provided for the child’s time with the mother and maternal grandmother to resume and all extant applications were fixed for hearing at the same time as the final hearing of the initiating application.

5. The application in a case had effectively run its course but was not dismissed.  It needs no further mention.  The two contravention applications were heard along with the initiating application.  By the end of the hearing the maternal grandmother was not seeking any orders under the initiating application but continued with the contravention application.

6. The father and independent children’s lawyer’s proposal is that he have sole parental responsibility for the child, the child live with him and spend time with the mother alternate weekends from Friday after school to before school Monday and for half school holidays and on the various special occasions.  The mother’s proposal is that the child live with her with spend time orders that mirror the fathers.  The father’s and independent children’s lawyer’s proposal is in accordance with the family consultant’s recommendations.

Background

1. The father was born on (omitted) 1980 and the mother was born on (omitted) 1986.  The mother and the father commenced their relationship in (omitted) 2004 and they lived together off and on until 2007.  They differ about the precise time their relationship ended, whether it was before or after the child’s birth.  The child was born on (omitted) 2006.  After her birth the child lived with the mother.

2. The mother acknowledges a past problem with alcohol abuse.  She says this was a reaction to the father’s abuse and violence.  She described herself to Ms D, who prepared the family report, as “a daily drinker”.  The mother told Ms D she was admitted to Odyssey House three times.  She was admitted to Odyssey House for three months in 2011.  In 2009 she lost her driver’s licence for six months.  The mother told Ms D that she stopped drinking during her pregnancy with Y and has not consumed alcohol since.

3. The child stayed with the mother while she was in Odyssey House and the father saw the child.  The child received childcare from 9.00am to 5.00pm each day.  Following the residential treatment she attended the (omitted) Drug and Alcohol Program.  She says she used marijuana when she was a teenager.

4. In (omitted) 2014 the mother had a second child, Y.  She does not know Y’s father’s identity.  She met him on a social occasion and had a one night stand with him.  She recalls only his first name.  The mother says that since having Y she has not consumed alcohol.

5. A report from the Child Protection Service of the Department of Human Services provided under s.69ZW of the Family Law Act 1975 (Cth) discloses that between January 2006 and July 2014 that service received 15 reports in relation to the child. In June 2008 a protection application was issued in the Children’s Court at Melbourne and an Interim Accommodation Order was made by the Court. That placed the child in the care of the father and over the next 11 months, under a number of Interim Accommodation Orders; the child remained in the fathers care.

6. The application for the Interim Protection Order followed an eight-month voluntary involvement by the Department with the parents of the child involving numerous concerns about the mother’s issue of alcohol use and the impact this was having on the child.  Prior to the protection application the child was in the care of the maternal grandmother on a voluntary agreement and had returned to her mother’s care shortly before the incident which brought about the application.

7. The father applied in the Federal Magistrates Court of Australia for an order that the child live with him.  The Department of Human Services says that the child’s placement with the father was assessed by the Department as stable and safe and the Department supported the father’s application.  The report says that by this time there were no ongoing serious concerns about the mother and it appeared that she had, to some degree, resolved her alcohol abuse and abusive behaviour.  The interim accommodation order ceased on 26 September 2009 when the matter was dismissed in the Children’s Court at Melbourne.

8. The Federal Magistrates Court of Australia proceedings concluded on 21 October 2009 with final orders that the child live with the father and spend time with the mother alternate weekends with provision for the various special occasions.

9. The father commenced further proceedings in March 2010 when he applied for a recovery order following the withholding of the child.  These proceedings concluded on 22 November 2010 with final orders providing that the father have sole parental responsibility, that the child live with the father and the mother spend supervised time with the child at (omitted) Contact Centre.

10. The maternal grandmother commenced further proceedings in the Federal Magistrates Court of Australia on 1 March 2011.  The respondents were the father and the mother.  These proceedings concluded with final orders on 11 August 2011.  This order discharged all previous orders for the child to spend time and communicate with the maternal grandmother and the mother.  They provided for the child to spend time with the maternal grandmother on weekends gradually increasing. Commencing 8 August 2012 the time was alternate weekends from the conclusion of school on Friday until the commencement of school on Monday.

11. The order provided for time in school holidays increasing until from 2013, the school holiday time was half the school term holidays as agreed and failing agreement, the first half and for half of the summer vacation in each year on a week about basis, with time to be agreed and failing agreement the first week.  Provision was made for special occasions.

12. The August 2011 order provides for the child to spend time and communicate with the mother as follows:

    a)For a period of six months, between 10.00am until 12 noon on Saturdays at (omitted) Contact Centre or at such other times as directed by (omitted) Contact Centre, up to a maximum of two hours per fortnight;

    b)Thereafter, for a period of six months, from 10.00am until 5.00pm on Sundays when the child is in the care of the maternal grandmother and such time to be supervised by the maternal grandmother;

    c)Thereafter, for a period of six months, the mother be at liberty to spend time with the child during periods that the child is in the care of the maternal grandmother, the maternal grandmother to be in substantial attendance;

    d)Thereafter, the mother spend time with the child as agreed between the maternal grandmother during periods that the child is in the care of the paternal grandmother; and

    e)On Christmas Day in each year and on the child’s birthday in each year when the child is in the maternal grandmother’s care with the maternal grandmother present during such periods in 2011 and 2012.

13. From about August 2013 the child spent alternate weekends from the conclusion of school Friday to the commencement of school Monday with the mother.  The mother says this was with the maternal grandmother in substantial attendance.

14. Until early 2014 the father and the child lived with the paternal grandparents in (omitted).  The father then moved to a house he rented in (omitted) and from February or March 2014 the father’s then girlfriend Ms H and her two children lived with the father in the house in (omitted).  The child lived there with the father although spent some time staying at the paternal grandparent’s house.  Incidents acknowledged by all to be family violence occurred between the father and Ms H.  On three occasions the father telephoned his parents and asked them to come and collect the child because of the situation between Ms H and him.  The child was collected by the grandfather from outside the house.

15. The incidents were serious enough that Police attended.  The child was present during at least some of the incidents between the father and Ms H because she described them to the family consultant. 

16. The child attends (omitted) Primary School.  On 27 June 2014 in the last day of term two, she fell off the monkey bars and broke a wrist.  The father collected the child and took her to hospital.  He rang the mother who was already on her way to collect the child from school as the child was to spend time with the mother and maternal grandmother for the first week of the school holidays.

17. The mother and grandmother attended the hospital.  The father was there with Ms H.  The mother was upset at this.  The father left the child at the hospital with the mother and grandmother to spend the week of the school holidays with them.

18. The father says that his relationship with Ms H had ended and she moved out of the house in (omitted) on 23 June 2014.  Although she has moved out the father continued the relationship with her.  She was at the hospital on 27 June 2014 and saw the father on subsequent occasions.

19. The mother and maternal grandmother did not return the child to the father after the first week of the school holidays.  The mother says this was because the child told him that Ms H and the father were always fighting and that the police had visited her father’s house.  She says that the child was anxious and picking at scabs.  The mother says the child told her that the father had slapped her.

20. The mother contacted the Child Protection Service of the Department of Human Services.  She says she spoke to an officer on 30 June 2014.  She said she was advised to obtain an intervention order and keep the child in her care until it was dealt with at the Family Law Courts, that she should obtain legal advice and that she should take the child to a doctor to address her mental health concerns.

21. The s.69ZW report from the Child Protection Service says that the mother was advised to seek legal advice in relation to her options. She was told that she could withhold the child given her concerns, or return the child to the care of the father. She was advised that this was her choice.

22. The report says that contact was made with the father.  He denied hitting or smacking the child and said he sent her to her room when she was in trouble.  He said he had noticed the child’s concerning behaviour, with picking her scabs, and that the child was currently seeing the school psychologist.  He said he was living alone but that his parents were nearby and very active and supportive in the care of X.  He said he was no longer in a relationship, informed of several police callouts as a result of “fights” with his ex-partners.  The mother applied for and obtained an Interim Intervention Order.

23. The father then commenced these proceedings and the order of 21 July 2014 was made that the child be returned to the father, requiring the father and the child live with the paternal grandparents and restraining the father from permitting the child to have any contact or communication with Ms H.  The orders for the child to spend time with the mother and the maternal grandmother remained as before.

24. One of the contraventions alleged by the father concerns events at Christmas 2014.  The child spent time with the maternal grandmother and mother at the commencement of the school holidays.  The maternal grandmother and mother kept the child for two weeks and travelled to Sydney.  The father alleges the child should have been returned to him on Christmas Eve.

25. The maternal grandmother asserts that the two weeks was agreed and she sent a text message to that effect.  She did send a text message but the father’s response showed that the time is not agreed.  The orders at that time provided for the child to spend time with grandmother for the first week of the school holidays and for the child to spend Christmas Eve with the father.  One of the father’s responses to the exchange of text messages was that the child should be returned on Christmas Eve.  The grandmother may have misinterpreted the order although I consider that unlikely.  If she did, it was not a reasonable misinterpretation. The other contravention concerns a weekend in March when the grandmother kept the child until the afternoon of the Monday rather than returning her in the morning.

26. On Monday, 23 March 2015 the child was returned to the father following a weekend with the maternal grandmother and mother.  The father alleges that the grandmother “stormed” into (omitted) and began screaming at him and accusing him of molesting the child.  He alleges she screamed “if you ever touch X again you will have to deal with me”.  The grandmother denies screaming.  She says she asked him quietly not to tell the child that he was going to smack her to death.  After this incident the father withheld the child from the grandmother and mother until after orders made on 28 July 2015.

27. The father’s solicitors, upon instructions from the father, sent a letter to the grandmother stating that the father intended to make an application to suspend the orders made 11 August 2011 pending a psychiatric assessment of the grandmother and an updated family report.  The letter says:

    X will not be provided to spend time with you pending the court applications being heard and assessments made due to the emotional and psychological trauma caused to the child through your actions and the risk of further harm to X.“

28. The two contravention applications and the father’s application in a case came before the court on 28 July 2015.  Consent orders provided for the orders of 11 August 2011 as amended by the order of 21 July 2014 to remain in full force and effect and an annotation was added that for the purposes of the child’s time with the maternal grandmother and the mother the time shall recommence 31 July 2015.  This order was made by consent.  While the order was by consent and therefore no argument was heard, the presumption of the order was clearly in the child’s best interests.  Whatever was said by the grandmother, on 23 March 2015, and how she said it, did not justify suspending the orders.

29. The father rang Triple Zero Emergency Services.  The grandmother subpoenaed the recording of the father’s calls and submitted that they show inconsistency on what the father says happened.  She subpoenaed the records from the McDonald’s restaurant which showed that there had been no incident report by the staff of the restaurant at the time the altercation occurred.  That the grandmother with the mother went to this extent in relation to the contravention is an indication of their attitude towards the father and the child’s relationship with the father.  While the father should not have withheld the child for the time that he did the hearing was concerned with the child’s future and the child’s relationship with her parents and her grandparents.  Relevant to this consideration is the fact that the child did not spend time with the mother and maternal grandmother from 23 March 2015 until 31 July 2015 and that the father was not justified in doing this.  Pursuing the contravention application had nothing to do with the child’s best interests.

1. The child attends (omitted) Primary School in (omitted).  The father is employed and sometimes takes her to school and collects her from school.  Alternatively she attends before and after school care except on Fridays when her paternal grandmother is available on her day off.

2. The mother lives in (omitted) with her son Y.  She is a full-time single mother.  The child Y has no contact with his father.

3. The maternal grandmother has a (omitted) business and is a long-standing foster carer.

4. The father of the child now lives with the paternal grandparents.

Family Report and Family Consultants Memorandum

1. The family report was prepared by Ms D.  She describes the post separation relationship between the child’s parents as highly acrimonious and notes that there been four previous family reports dated 3 November 2008, 24 September 2009, 9 November 2010 and 12 June 2011.  All four reports recommended that the child live with the father whilst he is with the paternal grandparents.

2. Ms D referred to the Department of Human Services report.  She says that the history indicates that the child’s physical and emotional needs have been adequately met when the father has been living with the child at the home of her paternal grandparents.  Ms D the father acknowledged that the child was exposed to family violence between him and Ms H after he moved out of his parents’ home.

3. The child kept a diary referred to in the affidavits Ms D had seen. Ms D asked the child about the diary, Ms D reports that the child said “they (her mother and grandmother) wanted me to write to show the court so I can live with Mummy” and “they tell me what to write, they asked me to write about Dad and Ms H”.  The child told Ms D that her father and Ms H had “big fights”.

4. Ms D describes as very concerning that the mother and paternal grandmother supported X to keep a diary of her concerns about living with her father to support the proposal for the child to live with the mother. Ms D says their actions demonstrate that they lack insight that this could adversely affect the child’s relationship with her father. Ms D says this calls into question the capacity to support the child’s relationship with her father.

5. At the time the family report was prepared the child had not seen her mother and maternal grandmother for some months.  She told Ms D that she feels upset and angry that she is not able to see them, especially Y.  She misses seeing Y and hugging him and said the last time she felt really happy was when she was hugging him.  She said that for this reason, she felt happy when her mother did not return her to her father.  She also misses her foster siblings who live with her maternal grandmother.  The child told Ms D she would like to live with her mother so she can spend more time with Y.

6. The child told Ms D she has a habit of “picking at scabs when I feel upset or if Dad yells at me”.  She said that her father didn’t smack her but he screams.  She said he once smacked her on her back.  She told Ms D irrespective of which parent she lives with, she hopes that the grownups will stop fighting.

7. Ms D observed the child with the father and then with the mother and maternal grandmother together.  She says that the child related warmly and easily with her father and enjoyed his positive attention and involvement with her. Ms D says the child was happy to see her mother and maternal grandmother.  She observed positive mutual affection between the child and her mother as they hugged and kissed each other, and similarly with the maternal grandmother.

8. Ms D referred to the psychiatric reports on the father and mother prepared by Dr W.  The father told Dr W that he suffered some depressive symptoms in 2007 and was prescribed antidepressants.  The father said he made a good recovery over two years and ceased all treatments.  He described how in 2007 he was charged with breaking into the mother’s accommodation and breaching intervention orders on three occasions.  The father told Dr W he was convicted for reckless assault of his ex defacto partner Ms H.  He denied ever being physically or verbally aggressive towards the child.

9. Ms D notes that Dr W says the father displayed a degree of psychological mindedness and capacity for reflectiveness and no major disturbance of general judgement, insight, motivation or major cognitive defects.  She notes that Dr W opines that if the mother’s version of events regarding violence is accurate, there is a possibility of future aggressive behaviours by the father.  Dr W recommended that the father receive appropriate monitoring and counselling to appreciate the impact of his behaviour in any future aggression on his daughter.

10. Ms D notes from the report by Dr W of the mother that she denied any history of psychiatric treatment but acknowledged having drug and alcohol counselling between 2008 and 2010 and was briefly prescribed psychiatric medications.  She used cannabis during adolescence.  She said she used alcohol to deal with “physical and emotional pain” caused by the father’s abuse.  She was drinking up to 68 drinks a day after losing her daughter.

11. Ms D notes that Dr W opined that the mother demonstrated a capacity for reflectiveness, with no major cognitive deficits.  He assessed that she suffered from an Alcohol Use Disorder over a prolonged period of time.  He said that given the typical relapsing nature of Alcohol Use Disorder he recommend that the mother receive appropriate monitoring and counselling to help her deal with future stress sources, to avoid any tendency to relapsing to alcohol abuse.

12. Ms D referred to the child’s expressed desire to live with her mother.  Ms D says that at eight she does not have the maturity to offer views based on her needs.  Ms D says the child’s views have been influenced by her mother and maternal grandmother.  In addition, Ms D says a large factor in her desire to live with her mother is due to the fact that she has bonded with her half-brother and loves living with him. 

13. Ms D considers that the child’s physical and emotional needs would be best catered for if she lives with the paternal grandparents.  The paternal grandparents have provided a secure home for the child over many years and the grandmother has indicated she is willing to provide a permanent home for the child.  Ms D says it may be advisable for court orders to stipulate that the father not remove the child from his parents’ home in the event that he decides to move out of their home again.

14. Ms D states a concern that the father and Ms H (she says Ms Sand but must mean Ms H) may renew their friendship again and if this happens there is a potential that they may arrange activities together and take the child along.  She refers to Dr W noting that the high conflict separation between the parties has the ability to cause a considerable degree of reaction in each other which must be a concern in terms of the direct and indirect effects on the child.  Ms D recommends an order that restrains the father and Ms Sand from coming face-to-face to live with each other when the child is in the care of either party.

15. Ms D recommended alternate weekends with the mother and school holiday time for no more than one work week provided the maternal grandmother is substantially present during overnight time.  While this is the recommendation neither the father nor the independent children’s lawyer proposed such a condition.

16. The family consultant Ms O prepared a Child Inclusive Conference Memorandum to Court following a conference on 31 July 2014 under s.11F of the Family Law Act 1975 (Cth). She was not cross-examined and the report must be seen in that context.

17. Ms O says that the mother described information she had shared with the child and the discussion she had with her about the live with/spend time dispute. Ms O says that the content of the conversations were not age-appropriate or child focused.  She says that the mother demonstrated a limited ability to consider more child and age-appropriate explanations of the current situation.

18. Ms O refers to the grandmother’s role as a foster carer for (omitted). Ms O says the grandmother cited her experience working with abused and traumatised children and considered herself qualified to make assessments that were beyond her experience/expertise.

19. Ms O says this in her memorandum:

    In the absence of any information to indicate that X is at foreseeable risk in her father’s care it is respectfully recommended that consideration be given to an order that permits her to continue to live with her father.  It appears that X is supported (by her father) to enjoy her relationship with her mother and maternal family members.  Information provided in this brief assessment indicates that Ms A Sand and Ms B Sand may struggle to appreciate the benefits of the father/child relationship.

20. Ms D, in the more comprehensive assessment possible with a Family Report, essentially reached the same conclusion.

Psychiatric reports

1. Dr W’s reports have been referred to during the Family Report discussion above.  The significant findings are referred to there.

Department of Human Services Child Protection Report

1. This report has been referred to earlier.  It shows that Child Protection received a total of 15 reports in relation to the child.  Two of the reports were investigated and substantiated with one resulting in the protection application already described.  It says that the concerns have predominantly been in relation to the mother’s alcohol issues, alleged mental health issues, family violence and allegations of inappropriate discipline and sexual abuse.  It says that the amount of reports made to Child Protection in the child’s short life is a concern.

2. The allegations of inappropriate discipline and sexual abuse were investigated and not substantiated.  The sexual abuse allegations were referred to by the grandmother in her evidence and in discussion with Ms D.  They concern the child touching her vagina, clutching the grandmother’s breasts and a vaginal discharge.

3. One of the allegations of inappropriate discipline led to the events in March 2015 when the father withheld the child from the mother and maternal grandmother.  The child told Ms D that her father smacked her once.  Ms D had available the Child Protection report, earlier family reports, had discussions with the child, discussions with both parents and both grandmothers and observations of the child with both parents and the maternal grandmother.  The only concern she raises about the child’s care with the father is if he is not living with his grandparents and if he resumes a relationship with Ms H.  I am satisfied that what is set out in the Child Protection report and the file and from the evidence otherwise that there is no basis for any finding that the child is at risk when living with the paternal grandparents.

Family Violence

1. Both parties acknowledge family violence during the relationship. The Child Protection Report, in the context of the eight month period prior to the Protection Application in 2008, says that during the intervention period it was discovered that the mother and father had between them approximately 12 reports of Family Violence to the police. Seven were made by the father and the others by the mother. The police files are in evidence and some of these incidents involve the mother’s intoxication. Notwithstanding this, behaviour by the father which meets the definition of family violence in s.5 of the Family Law Act 1975 (Cth) occurred. This continued after the end of the relationship.

2. The Child Protection Report says of the period in 2008:

   It was apparent that their relationship was volatile and although they both advised being separated they continued to have an intimate relationship.  This made the assessment difficult, as Ms Sand made frequent contradictory allegations and claims about Mr Gallagher.  Mr Gallagher appeared to be enmeshed in Ms Sand’s chaotic life.  Mr Gallagher advised however that his contact with Ms Sand was predominantly due to their daughter and his concerns for her welfare.

3. A serious incident, resulting in conviction of the father, was in September 2007.  On 2 May 2008 in the County Court of Victoria at Melbourne the father was convicted of recklessly causing injury, assault, aggravated burglary and attempted theft.  He was sentenced to 3 months imprisonment suspended for 18 months and fined a total of $2,500.  The charge of breach of intervention order was found proven with no order made.

4. The police report for this incident is dated 8 September 2007.  It sets out that the father entered the mother’s house by an unlocked door.  He went into the kitchen and obtained a knife.  The mother was asleep with her current boyfriend.  The mother woke to find the father standing next to her searching through the bedside table.  The father lunged at her and the wife received a small laceration to her right hand and a small cut to the right side of her chest.  The mother was able to grab the knife from the father during a struggle and then the father left.

5. The police files show that police attended incidents between the father and a previous partner. The volatility of his relationship with Ms H has already been described.

6. The history shows that if the father is in a relationship living with his partner and the child there is a risk of the child being exposed to family violence.

Paternal Grandparents

1. Both paternal grandparents gave evidence.  Both are in long-term employment.  They are a significant and positive presence in the child’s life.  The paternal grandmother in particular plays a considerable role in the care of the child.  The evidence about their involvement supports Ms D’s conclusion that the child should be living in their household.

Family Law Act

1. Children’s provisions are contained in Part VII of the Family Law Act 1975 (Cth). Section 60CA provides that the best interests of the children are the paramount consideration in making parenting orders. The best interest considerations are contained in s.60CC. The objects of the Act and the principles to be applied are contained in s.60B.

2. Section 60DA provides a presumption that it is in the best interests of a child that the parents have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe there has been family violence or abuse of the child or is otherwise not in the best interests of the child for the presumption to be applied.

Parental responsibility

1. There are reasonable grounds to believe there has been family violence so that the presumption is rebutted on that ground.  As well, I am satisfied that it is not in the best interests of the child to apply the presumption or to make an order that the parents have equal shared parental responsibility.

2. The pathway through the legislation described by the Full Court of the Family Court of Australia refers to considering best interest considerations before considering the order for parental responsibility.  The pathway does not always apply and I do not consider it necessary to look to all the best interest considerations before making a determination about orders for parental responsibility.

3. An order for equal shared parental responsibility requires the parties to cooperate in making major long-term decisions about education, both current and future, major health issues, religion and cultural upbringing, the child’s name and any change in the child’s living arrangements which will make it significantly more difficult for the child to have a relationship with the other parent.

4. The history of the dispute between the parties going back to 2008 shows an inability to make arrangements for the care of the child other than by court orders.  Even then there are difficulties.  The father has made three applications for a recovery order when either the grandmother or the mother retained the child when they should not have.  For three months in 2015 the father withheld the child from the mother and grandmother, and her half brother, in circumstances which were not justified.

5. What occurred in the McDonald’s restaurant at changeover is a matter of dispute.  The father alleges that the grandmother “stormed” in abusing him and accusing him of molesting the child.  The grandmother says that she merely said don’t touch the child again.

6. Whatever the truth of what occurred the father was not justified in withholding the child from the mother and grandmother.  He says he acted on legal advice.  Notwithstanding that this incident at changeover in the presence of the child, no doubt potentially damaging to the child, did not justify the father withholding the child from the mother and grandmother.  Even if the grandmother behaved as the father says that is not a reason to consider the child was at risk in the care of the grandmother or the mother.

7. The potential for further litigation between the parties is strong.  An order for equal shared parental responsibility would require the parties to cooperate to an extent that they cannot.  It is likely to lead to further court proceedings and that in itself is a best interest consideration.  I am satisfied that the best interests of the child are met by an order that the father have sole parental responsibility for the child.  I am satisfied that the paternal grandparents, and in particular the paternal grandmother, will have a considerable role in any major long-term decisions which need to be made by the father.

Best interest considerations

1. The considerations the Court must take into account are contained in s.60CC of the Family Law Act 1975 (Cth).

2. The first of the primary considerations is the benefit to the child of a meaningful relationship with each parent.  The evidence shows that the child has a meaningful relationship with each parent and that will continue whichever parent she lives with.  Other considerations are relative to the quality of that meaningful relationship and are referred to later.

3. The second of the primary considerations is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

4. Risk exists with each parent.  There is a risk of the child being exposed to family violence when with the father if he again moves out of his parents’ home to live with a partner and takes the child with him.  The evidence of family violence with the mother and Ms H has been referred to already.  The police file records attendances by police when the father lived with a previous partner and there is the family violence which occurred between the parents.

5. If the child lives with the mother there is a risk that the mother will relapse with alcohol abuse.  This is clear from Dr W’s report.  I am satisfied that the mother is currently abstinent from alcohol, or at least to the extent that alcohol is not a current problem in her life, but there is a risk of relapse.

6. The first of the additional considerations is any views expressed by the child and any factors that the court thinks are relevant to the weight it should give to the child’s views.  The child told the family consultant she would prefer to live with her mother and brother.  The family consultant’s opinion is that she is too young to express a proper view.  There is the additional evidence, referred to by the family consultant, of the mother and maternal grandmothers encouraging the child to write down things that are reasons for her not wanting to live with her father, a practise criticised by the family consultant.

7. For these reasons the child’s views cannot be given significant weight.

8. The next additional consideration is the nature of the relationship of the child with each of the child’s parents and other persons.  The child has a good relationship with each parent and is particularly attached to her half-brother.  She has a supportive relationship with the paternal grandparents, particularly the paternal grandmother and a good relationship with the maternal grandmother.  The child lives with the paternal grandparents and because of the need for supervision and then substantial attendance, the child’s relationship with her mother is closely linked to the child’s relationship with the maternal grandmother.

1. The next additional consideration is the extent to which each of the parents has taken the opportunity to participate in the child’s life.  The child has lived with the father since June 2008.  The mother has seen the child on a consistent basis although in various circumstances which have included long periods of supervised time and time with the maternal grandmother in substantial attendance.  Since these proceedings started she has seen the child consistently in accordance with the orders.

2. The next consideration is the extent to which each of the child’s parents has fulfilled the parents’ obligation to maintain the child.  The father has taken the responsibility of maintaining the child.  The mother’s income means that, except when the child is with her, she has a very limited ability to assist.

3. The next consideration is the likely effect of any change in the child’s circumstances.  The family consultant considers that the child will be best cared for when living with the paternal grandparents.  The mother, supported by the maternal grandmother, have pursued the proceedings with a considerable emphasis on finding fault with the father.  They encouraged the child to write down matters critical of her father.  Their approach during the hearing was to be critical of the father.

4. The grandmother pursued her contravention application for the withholding of the child from March to June 2015.  I am satisfied that the father did not have a reasonable excuse for withholding the child. The father’s withholding of the child has to be taken into account but this is separate from the contravention application.  The grandmother continued with the contravention application solely for the purpose of showing that the father was at fault.  Given that there was a final hearing the father’s behaviour is going to be taken into account in the proper context, that is considering the best interests of the child.  Combined with this, is that the grandmother is no longer applying for orders for the time to spend time with her.  The contravention application adds nothing to the consideration of the best interests of the child.

5. The mother and the maternal grandmother live together and have a close relationship.  The family consultant considers that the mother and grandmother may not support the child’s relationship with the father so that if there is a change to living with the mother this may affect the child’s relationship with the father.

6. This evidence on these considerations are relevant to the consideration of the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents.  The child’s best interests are to have a good relationship with each parent and each parent is responsible for promoting that relationship with the other parent.  The evidence shows there are doubts about the mother doing this.

7. The next consideration is the capacity of each of the child’s parents and others to provide for the needs of the child including emotional and intellectual needs is of particular relevance.  The family consultant concludes that the child’s needs are best provided for by living with the paternal grandparents. This means an order that the child live with the father.  The evidence shows that while the child has been living in this arrangement the child has thrived.  I am satisfied that this will continue and will better provide the child’s needs than living with the mother.

8. The evidence about the maturity, sex, lifestyle and background of the child has been referred to already as has the evidence about family violence.

Conclusion

1. The child’s best interests are served by remaining in the current living arrangements, that is spending time with her father at the home of the paternal grandparents.  She has thrived in that environment and there are significant doubts about the mother’s attitude to the child’s relationship with her father.  Her relationship with both of her parents will best be promoted by remaining where she is.  Both parents can provide for her day to day needs but living with her father with her paternal grandparents will best provide her emotional and intellectual needs.  The child’s stated wish to live with the mother and her brother cannot prevail against these considerations.

Contravention applications

1. The grandmother’s contravention application filed 14 May 2005 alleges contraventions of paragraphs 2(e)(iv), 2(d) & 2(e)(iv) of the order made 11 August 2011 and paragraphs 4 & 5 of the order made 21 July 2014.

2. Paragraph 2(e)(iv) provides for the child to spend time with the grandmother on weekends and 2(d) during school holidays.  Paragraph 4 of the order of July 2014 requires the father to live with the child with the paternal grandparents and paragraph 5 restrains him from permitting the child to come into contact with Ms H.

3. The father did not provide the child for time with the grandmother from March to June 2015.  The father contravened both the paragraphs of the August 2011 orders in not providing the child for time at weekends and school holidays.  He claims he had a reasonable excuse; that is the need to protect the child from harm.  The harm he alleges is psychological harm caused by abuse of him by the grandmother.

4. What was said by the grandmother to the father at changeover prior to the withholding is disputed and is discussed earlier in these reasons.  Even if the grandmothers statements were as alleged they did not give the father a reasonable excuse for withholding the child.  Consequently, I am satisfied that the contravention alleged is proved but I intend dismissing the contravention application.  I do not consider that it is in the child’s best interest to do otherwise.

5. The grandmother no longer seeks any orders that the child spend time with her.  She will see the child when the child is with the mother.  The grandmother does not apply for make-up time and that would not be in the child’s best interests.  The child’s life should proceed on a steady basis in accordance with the orders I propose making.

6. The other contraventions alleged that the father has not lived with the child with the paternal grandparents and that he has put the child into contact with Ms H.  I am satisfied that since the order of 21 July 2014 the father has lived with the child with the paternal grandparents.  For a time he still had the lease of the property where he lived with Ms H but he was not living there.

7. The child has seen Ms H but not in circumstances where there is any risk of conflict between the father and Ms H.  Strictly speaking there has been a contravention.  I propose dismissing the application on the basis that the contravention was trivial.

8. The father’s contravention application alleges breaches of paragraphs 2(e)(v) & 2(g) of the order made 21 December 2014 and paragraph 2(d) of the order made 23 March 2015.

9. The contravention of the order made 21 December 2014 alleges that the grandmother did not return the child to the father on Christmas Eve 2014 but over held the child until 2 January 2015.  The child remained with the grandmother from a few days after school finished until 2 January 2015.  The order provided that the child spend time with the grandmother for the first week of the school holidays with the grandmother and then Christmas Eve with the father.

10. Apparently the time did not start until a few days after school finished because the grandmother and mother were not aware of the exact date that school finished.  The grandmother claims that the orders provided for the child to spend two weeks with her.  I do not need to set out the terms of the order.  Quite clearly the time was only the one week and the order provided for the child to spend time with the father over Christmas Eve 2014.  The grandmother may have misunderstood the order but was not a reasonable misunderstanding.

11. The other breach alleges that the child was returned late from a weekend.  She was returned at 4.30pm Monday, 23 March 2015 and not delivered to school at 9.00am that morning.  In the current context the contraventions are of little consequence.  The issues concerning future arrangements are important issues.  In those circumstances I do not need to consider whether the grandmother had a reasonable excuse.  A finding either way would not advance the best interests of the child.  A finding would enable one or other party to claim they had a win, perhaps even to the child, and that would be detrimental to the child’s interests.

12. I propose dismissing both the father’s contravention applications.  The child’s best interests will not be served by doing anything else.  Effectively the contravention applications have become redundant.

I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date:  17 February 2016