GIBB & TURNLEY

[2015] FamCA 253

FAMILY COURT OF AUSTRALIA

GIBB & TURNLEY [2015] FamCA 253

FAMILY LAW – CHILDREN – Best Interests – Family Violence – Where there is one child aged nine – Where the child lives with the mother and spends time with the father on three out of four weekends – Where the father and ICL sought that the child live with the father – Where the father sought that he have sole parental responsibility – Where the mother sought that the child continue to live with her and spend time with the father each alternate weekend – Where both parents have re-partnered and had additional children – Where the child has been exposed to family violence in the mother’s household – Where exposure to family violence has come from the mother’s husband and from incidents between the mother and her husband – Where the mother cannot isolate the child from her husband – Where the mother’s proposals therefore involve an unacceptable risk to the child – Where priority must be given to the child’s safety over his relationship with the mother and maternal siblings – Where the presumption of equal shared parental responsibility is rebutted – Orders made that the father has sole parental responsibility, that the child live with the father and spend day time with the mother once every second weekend, provided that he does not come into contact with the mother’s husband.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61B, 61DA, 65D, 65DAA

Champness & Hanson (2009) FLC 93-407
McCall & Clark (2009) FLC 93-405
Rice v Asplund (1979) FLC 90-725

APPLICANT: Mr Gibb

RESPONDENT: Ms Turnley

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: PAC 4764 of 2009

DATE DELIVERED: 9 April 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 23 – 25 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT FATHER:	Mr Guterres
SOLICITOR FOR THE APPLICANT:	Derham Houston Lawyers
COUNSEL FOR THE RESPONDENTMOTHER:	Ms Giacomo

SOLICITOR FOR THE RESPONDENT: Hamish Cumming Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Ladopoulos

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid New South Wales

Orders

1.All existing parenting orders in respect of B born … 2006 (“the child”) are discharged.

2.The father shall have sole parental responsibility for the child.

3.B shall live with the father.

4.Unless the parents otherwise agree or the child is already in the care of the father, effect will be given to order 3 by the mother or her nominee (who shall not be Mr C) delivering the child to the father’s nominee at D Town Railway Station at 10.00 am on Saturday 11 April 2015 and if practicable the father shall avoid coming into the sight of or making personal contact with the mother on that occasion.

5.B shall spend time with the mother as follows:

5.1.During each school term, each alternate Saturday between 10.00 am and 5.00 pm (or such shorter period between those times as the mother may nominate) with the first occasion to be the first Saturday after the commencement of each school term;

5.2.On Mother’s Day from 10.00 am until 5.00 pm;

5.3.On Boxing Day from 10.00 am until 5.00 pm;

5.4For the first week of the short NSW school holiday periods and the third week of the Christmas holidays, conditional upon the child staying at the home of either the maternal grandmother, Ms E, or the home of the maternal aunt, Ms F, during these periods.  Unless the parents otherwise agree that time is to commence at 10.00 am on the first Saturday of the short school holidays and on the third Saturday of the Christmas holidays and conclude at 10.00 am on the following Saturday;

5.5.Such other times as the mother and the father may agree to in writing; and

5.7.Apart from the time referred to in 5.4, the child’s time with the mother shall take place in the Region G area unless the mother and the father otherwise agree in writing.

6.Both the mother and the father are entitled to attend all events involving the child that parents are invited to attend, including:

6.1.Sporting fixtures;

6.2.Extra curricular activities; and

6.3.School functions and events that allow for parental attendance including but not limited to interviews, canteen duties and social functions.

7.For the purposes of facilitating Order 5 above, unless otherwise agreed between the mother and the father in writing, changeovers shall occur as follows:

7.1.The father’s nominee will deliver the child to the mother or her nominee (who shall not be Mr C) at D Town Railway Station at the beginning of the child’s time with the mother;

7.2.The mother or her nominee (who shall not be Mr C) will deliver the child to the father’s nominee at D Town Railway Station at the end of the child’s time with the mother; and

7.3If practicable the father shall avoid coming into the sight of or making personal contact with the mother at changeovers.

8.Within 21 days of these orders the father will attend upon a general practitioner and obtain a referral to a therapist with experience in family therapy and anger management, and the father will then make an appointment with the therapist.  Such appointment is to take place no later than within 12 weeks of the date of these orders.

9.The father will attend the first appointment, and continue to attend all subsequent appointments made with his therapist in accordance with the therapist’s recommendations, including recommendations as to frequency of such appointments.

10.On or before his first appointment with the therapist, the father shall give to the therapist (or cause to be given) a copy of these orders, the Family Report of Ms H dated 25 June 2014 and a copy of the reasons for judgment.

11.The father will ensure that the therapist understands the purpose of the therapy is to address the issues raised by Ms H in her report and in particular the issues mentioned at paragraph 74 to assist the father to develop insight into his contribution to the dysfunction the co-parenting relationship between the mother and the father and his propensity to engage in behaviour that either is or can be perceived as violent or intimidating.

12.Within 24 hours of the father obtaining an appointment with the therapist in Order 7 the father will notify the mother and the Independent Children’s Lawyer of the name and full contact details of the therapist.

13.The Court noted that Orders 8 to 12 inclusive are made in terms sought by the father.

14.As soon as practicable the Mother will attend a domestic violence counsellor of her choosing, and will continue to attend upon that counsellor until such time as the counsellor advises that it is no longer necessary or beneficial for her to attend.

15.The Court noted that Order 14 is made in terms sought by the mother.

16.For the purposes of Orders 8 to 14 above, leave is granted to the mother, the father and the Independent Children’s Lawyer to provide a copy of these orders, the Family Report of Ms H dated 25 June 2014 and a copy of the reasons for judgment, to any professional consulted by either party to carry out an obligation under these orders.

17.These orders authorise any therapist or counsellor engaged by either parent to speak with and provide information about the family and treatment to other medical or psychological professionals engaged by that parent or by/with the family.

18.These orders authorise any therapist or counsellor engaged by either parent to speak with and provide the Independent Children’s Lawyer with information about the family and treatment, and the Court requests that therapists engaged by the father and the mother pursuant to Orders 8 and 14 to notify the Independent Children’s Lawyer should the father and/or mother miss, cancel or reschedule more than two appointments in a row.

19.The mother will ensure that the father is kept informed of:

19.1.Any medical problems or illnesses suffered by the child while in the mother’s care;

19.2.Any medication that has been prescribed for the child;

19.3.The residential address and contact telephone numbers of the mother and particulars of the others who may reside or stay with the child; and

19.4.Any other matter relevant to the child’s welfare.

20.The father shall ensure that the mother is kept informed of:

20.1.Any medical problems or illnesses suffered by the child while in the father’s care;

20.2.Any medication that has been prescribed for the child;

20.3.The residential address and contact telephone numbers of the father and particulars of the others who may reside or stay with the child; and

20.4.Any other matter relevant to the child’s welfare, including notice as far as practicable in advance of any major decisions required about his education, health and change of residence and timely notice of the ultimate decision.

21.The mother is restrained from allowing the child any contact with Mr C and her time with the child pursuant to these orders is conditional upon her not allowing the child to come into contact with Mr C.

22.The mother and the father will not expose the child to or allow him to be subject to family violence or abuse, and should a situation develop, that constitutes family violence under the Family Law Act 1975, the parent in whose care the child is will forthwith remove the child from that situation.

22.The father and the mother are each restrained from discussing these proceedings with or in the presence or hearing of the child or showing the child any of the affidavits, reasons for judgment, orders, applications or reports prepared for the purpose of these proceedings.

23.The mother and father are each restrained from making critical, offensive and derogatory remarks about the other parent, or any person in the other parent’s household, in the presence or hearing of the child and they shall do all things necessary to ensure that no third party makes critical, offensive and derogatory comments about the other parent, or any person in the other parent’s household, in the presence or hearing of the child.

24.The appointment of the Independent Children’s Lawyer is extended for three months from the date of these orders for the purpose of the Independent Children’s Lawyer dealing with the matters to be referred to her under these orders.

25.Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

26.The Registry Manager is requested to forward a copy of these reasons to the Director General of the NSW Department of Family and Community Services in respect of J born on … 2005, K (male) born … 2009 and L (female) born … 2012.

27.Leave is granted to the parties to apply within 28 days, on giving at least seven days’ notice to the Court and each other in relation to the wording of these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Turnley & Gibb has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: PAC 4764 of 2009

Mr Gibb

Applicant

And

Ms Turnley

Respondent

REASONS FOR JUDGMENT

Introduction

1.These are parenting proceedings about B (“B”) who is nine years of age.

2.Final parenting orders were made by consent on 20 February 2012 providing that, among other orders, the parents have equal shared parental responsibility for the child and that he live with the mother and spend time with the father on three out of every four weekends and for half the school holidays.

3.The father seeks that those orders be varied to provide that he have sole parental responsibility for the child and that the child live with him.  The father seeks that the mother spend time with the child but subject to certain conditions, including that the child not come into contact with her husband, Mr C.  The mother seeks orders that substantially leave the current parental responsibility and living arrangements in place.

4.As is explained below, the orders sought by the mother are untenable and orders giving effect to the outcome sought by the father and the Independent Children’s Lawyer (“ICL”) are appropriate.

Applications

5.To some extent the orders sought by the parties were not finally settled until the conclusion of the trial.

6.The ICL’s proposals involved the making of orders on an interim basis and were set out in a document submitted during final submissions, as follows:

1.The child [B] born … 2006 (“[the child]”) shall live with the father.

2.Upon the mother having complied with Order 14 below and subject to the mother complying with Orders 10, 11, 12 and 13, unless the mother notifies the father by SMS that she is unable to attend, the child shall spend time with the mother as follows:-

2.1.Each alternate Saturday between 10:00 am and 5:00 pm (or such shorter period between those times as the mother may nominate);

2.2.On Mother’s Day from 10:00 am until 5:00 pm;

2.3.On Boxing Day from 10:00 am until 5:00 pm;

2.4.Such other times as the mother and the father may agree to in writing; and

2.5.The mother will use her best efforts to notify the father as soon as possible if she is going to be unable to attend on any occasion;

2.6.[B’s] time with the mother shall take place in the [Region G] area unless the mother and the father otherwise agree in writing;

3.Both the mother and the father are entitled to attend all events involving the child that parents are invited to including:

3.1.Sporting fixtures;

3.2.Extra curricula activities;

3.3.School functions and events that allow for parental attendance including but not limited to interviews, canteen duties and social functions.

4.For the purposes of facilitating Order 2 above, unless otherwise agreed between the mother and the father in writing, changeovers shall occur as follows:

4.1.the father or his nominee will deliver the child to the mother or her nominee (who shall not be [Mr C]) at [D Town] Railway Station at the beginning of the child’s time with the mother; and

4.2.the mother or her nominee (who shall not be [Mr C]) will deliver the child to the father or his nominee at [D Town] Railway Station at the end of the child’s time with the mother.

5.Within 21 days of these orders the father will attend upon a general practitioner and obtain a referral to a therapist with experience in family therapy and anger management, and the father will then make an appointment with the therapist, such appointment to take place no later than within 12 weeks of the date of these orders.

6.The father will attend the first appointment, and continue to attend all subsequent appointments made with his therapist in accordance with the therapist’s recommendations, including recommendations as to frequency of such appointments.

7.On or before his first appointment with the therapist, the father shall give to the therapist (or cause to be given) a copy of these orders, the Family Report of [Ms H] dated 25 June 2015 and a copy of the reasons for judgment.(if any)

8.The father will ensure that the therapist understands the purpose of the therapy is to address the issues raised by [Ms H] in her report and in particular the issues mentioned at paragraph 74 to assist the father to develop insight into his contribution to the dysfunction the co-parenting relationship between the mother and the father and his propensity to engage in behaviour that either is or can be perceived as violent or intimidating.

9.Within 24 hours of the father obtaining an appointment with the therapist in Order 5 the father will notify the mother and the Independent Children’s Lawyer of the name and full contact details of the therapist.

10.Within 21 days of these orders the mother will attend upon a general practitioner and obtain a referral to a therapist with experience in domestic violence, and the mother will then make an appointment with the therapist, such appointment to take place no later than within 12 weeks of the date of these orders.

11.The mother will attend the first appointment, and continue to attend all subsequent appointments made with his therapist in accordance with the therapist’s recommendations, including recommendations as to frequency of such appointments.

12.On or before her first appointment with the therapist, the mother shall give to the therapist (or cause to be given) a copy of these orders, the family report of [Ms H] dated 25 June 2015 and a copy of the reasons for judgment (if any), and

13.The mother will ensure that the therapist understands the purpose of the therapy is to address the issues raised by [Ms H] in her report and in particular the issues mentioned at paragraph 73 regarding family violence.

14.Within 24 hours of the mother obtaining an appointment with the therapist in Order 10 the mother will notify the Father and the Independent Children’s Lawyer of the name and full contact details of the therapist.

15.For the purposes of Orders 5 to 14 above, leave is granted to the mother, the father and the Independent Children’s Lawyer to provide a copy of these orders, the Family Report of [Ms H] dated 25 June 2015 and a copy of the reasons for judgment (if any), to any professional consulted by either party to carry out an obligation under these orders.

16.These orders authorise any therapist or counsellor engaged by either parent to speak with and provide any other medical or psychological professional engaged by that parent or by/with the family with information about the family and treatment.

17.These orders authorise any therapist or counsellor engaged by either parent to speak with and provide the Independent Children’s Lawyer with information about the family and treatment, and the Court requests that therapists engaged by the father and the mother in orders 5 and 10 to notify the Independent Children’s Lawyer should the father and/or mother miss, cancel or reschedule more than two appointments in a row.

18.The mother will ensure that the father is kept informed of:

18.1.any medical problems or illnesses suffered by [the child] while in the mother’s care;

18.2.any medication that has been prescribed for [the child];

18.3.the residential address and contact telephone numbers of the mother and particulars of the others who may reside or stay with [the child];

18.4.any other matter relevant to [the child’s] welfare.

19.The father shall ensure that the mother is kept informed of:

19.1.any medical problems or illnesses suffered by [the child] while in the father’s care;

19.2.any medication that has been prescribed for [the child];

19.3.the residential address and contact telephone numbers of the father and particulars of the others who may reside or stay with [the child] ;

19.4.any other matter relevant to [the child’s] welfare.

20.The mother is restrained from allowing [the child] any contact with [Mr C].

21.The mother and the father will not expose the child to or allow the child to be subject to family violence or abuse, and should a situation develop, that constitutes family violence under the Family Law Act 1975, the parent in whose care [the child] is in will forthwith remove [the child] from that situation (and the court notes that parent will also remove any other child in the parent’s care).

22.The father and the mother are each restrained from discussing these proceedings with or in the presence or hearing of [the child] or showing [the child] any of the affidavits, judgments or orders, applications or reports prepared for the purpose of these proceedings.

23.The mother and father are each restrained from making critical, offensive and derogatory remarks about the other parent, or any person in the other parent’s household, in the presence or hearing of [the child] and that each party do all things necessary to ensure that no third party makes critical, offensive and derogatory comments about the other parent, or any person in the other parent’s household, in the presence or hearing of [the child].

24.Leave is granted to the Independent Children’s Lawyer to relist the matter on seven (7) days notice.

25.That the hearing be adjourned to a date to be advised, being no less than six (6) months from the date of these Orders.

26.That there be an updated family report.

27.That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached.

28.That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

7.Ultimately, the father sought orders that were broadly based on the proposals of the ICL but were expressed as final orders.  The father sought:

1.The child [B] born … 2006 (“[the child]”) shall live with the father.

2.Unless the mother notifies the father by SMS that she is unable to attend, [the child] shall spend time with the mother as follows:-

2.1.Each alternate Saturday between 10:00 am and 5:00 pm (or such shorter period between those times as the mother may nominate);

2.2.On Mother’s Day from 10:00 am until 5:00 pm;

2.3.On Boxing Day from 10:00 am until 5:00 pm;

2.4For the first week of the short NSW school holiday periods and one week in the Christmas holidays, conditional upon the child staying at the home of either the maternal grandmother, [Ms E], or the home of the maternal aunt, [Ms F], during these periods.

2.5.Such other times as the mother and the father may agree to in writing; and

2.6The mother will use her best efforts to notify the father as soon as possible if she is going to be unable to attend on any occasion;

2.7.[B’s] time with the mother shall take place in the [Region G] area unless the mother and the father otherwise agree in writing;

3.Both the mother and the father are entitled to attend all events involving [the child] that parents are invited to including:

3.1.Sporting fixtures;

3.2.Extra curricula activities;

3.3.School functions and events that allow for parental attendance including but not limited to interviews, canteen duties and social functions.

4.For the purposes of facilitating Order 2 above, unless otherwise agreed between the mother and the father in writing, changeovers shall occur as follows:

4.1.the father or his nominee will deliver the child to the mother or her nominee (who shall not be [Mr C]) at [D Town] Railway Station at the beginning of [the child’s] time with the mother; and

4.2.the mother or her nominee (who shall not be [Mr C]) will deliver [the child] to the father or his nominee at [D Town] Railway Station at the end of the child’s time with the mother.

5.Within 21 days of these orders the father will attend upon a general practitioner and obtain a referral to a therapist with experience in family therapy and anger management, and the father will then make an appointment with the therapist, such appointment to take place no later than within 12 weeks of the date of these orders.

6.The father will attend the first appointment, and continue to attend all subsequent appointments made with his therapist in accordance with the therapist’s recommendations, including recommendations as to frequency of such appointments.

7.On or before his first appointment with the therapist, the father shall give to the therapist (or cause to be given) a copy of these orders, the Family Report of [Ms H] dated 25 June 2015 and a copy of the reasons for judgment (if any).

8.The father will ensure that the therapist understands the purpose of the therapy is to address the issues raised by [Ms H] in her report and in particular the issues mentioned at paragraph 74 to assist the father to develop insight into his contribution to the dysfunction the co-parenting relationship between the mother and the father and his propensity to engage in behaviour that either is or can be perceived as violent or intimidating.

9.Within 24 hours of the father obtaining an appointment with the therapist in Order 5 the father will notify the mother and the Independent Children’s Lawyer of the name and full contact details of the therapist.

10.Within 21 days of these orders the mother will attend upon a general practitioner and obtain a referral to a therapist with experience in domestic violence, and the mother will then make an appointment with the therapist, such appointment to take place no later than within 12 weeks of the date of these orders.

11.The mother will attend the first appointment, and continue to attend all subsequent appointments made with his therapist in accordance with the therapist’s recommendations, including recommendations as to frequency of such appointments.

12.On or before her first appointment with the therapist, the mother shall give to the therapist (or cause to be given) a copy of these orders, the family report of [Ms H] dated 25 June 2015 and a copy of the reasons for judgment (if any), and

13.The mother will ensure that the therapist understands the purpose of the therapy is to address the issues raised by [Ms H] in her report and in particular the issues mentioned at paragraph 73 regarding family violence.

14.Within 24 hours of the mother obtaining an appointment with the therapist in Order 10 the mother will notify the Father and the Independent Children’s Lawyer of the name and full contact details of the therapist.

15.For the purposes of Orders 5 to 14 above, leave is granted to the mother, the father and the Independent Children’s Lawyer to provide a copy of these orders, the Family Report of [Ms H] dated 25 June 2015 and a copy of the reasons for judgment (if any), to any professional consulted by either party to carry out an obligation under these orders.

16.These orders authorise any therapist or counsellor engaged by either parent to speak with and provide any other medical or psychological professional engaged by that parent or by/with the family with information about the family and treatment.

17.These orders authorise any therapist or counsellor engaged by either parent to speak with and provide the Independent Children’s Lawyer with information about the family and treatment, and the Court requests that therapists engaged by the father and the mother in orders 5 and 10 to notify the Independent Children’s Lawyer should the father and/or mother miss, cancel or reschedule more than two appointments in a row.

18.The mother will ensure that the father is kept informed of:

18.1.any medical problems or illnesses suffered by [the child] while in the mother’s care;

18.2.any medication that has been prescribed for [the child];

18.3.the residential address and contact telephone numbers of the mother and particulars of the others who may reside or stay with [the child];

18.4.any other matter relevant to [the child’s] welfare.

19.The father shall ensure that the mother is kept informed of:

19.1.any medical problems or illnesses suffered by [the child] while in the father’s care;

19.2.any medication that has been prescribed for [the child];

19.3.the residential address and contact telephone numbers of the father and particulars of the others who may reside or stay with [the child] ;

19.4.any other matter relevant to [the child’s] welfare.

20.The mother is restrained from allowing the child any contact with Mr C Turnley.

21.The mother and the father will not expose [the child] to or allow the [child] to be subject to family violence or abuse, and should a situation develop, that constitutes family violence under the Family Law Act 1975, the parent in whose care [the child] is in will forthwith remove [the child] from that situation (and the court notes that parent will also remove any other child in the parent’s care).

22.The father and the mother are each restrained from discussing these proceedings with or in the presence or hearing of [the child] or showing [the child] any of the affidavits, judgments or orders, applications or reports prepared for the purpose of these proceedings.

23.The mother and father are each restrained from making critical, offensive and derogatory remarks about the other parent, or any person in the other parent’s household, in the presence or hearing of the child and that each party do all things necessary to ensure that no third party makes critical, offensive and derogatory comments about the other parent, or any person in the other parent’s household, in the presence or hearing of [the child].

24.That the appointment of the ICL be extended for a period of 12 months following the date of these orders.

25.That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached.

26.That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

27.That the father have sole parental responsibility for [the child].

8.The respondent mother substantially maintained the position put by her at the commencement of the hearing.  She sought orders in terms of a minute of orders as follows:

1That the Amended Application filed 12 March 2013 be dismissed. 

2That the child [B] (“[the child]”), born … 2006, live with the Mother.

3That the parties have equal shared parental responsibility for [the child] and will consult on all major issues, including health, education and religion. 

4That [the child] shall spend time with the Father as follows:-

4.1Each alternate weekend from after school or 3.00pm Friday until 4.00pm Sunday, with the Father to collect [the child] from school at the commencement of his time, and at the conclusion of such time, the Mother to collect [the child] at the Fathers residence, provided that the distance is not greater than [M Town to N Town], unless otherwise agreed by the parties in writing.

4.2For one half of each school holiday period, being the first half in even numbered years and the second half in odd numbered years.

5School holidays are defined as commencing at the conclusion of school on the last day of term and concluding at 4.00pm two days before the recommencement of the new school term.

6The Father’s time pursuant to 4.1, will commence each term on the weekend that is not the [sports] Club meeting weekend for that term.

7The Court notes the [sports] Club meetings are on alternate weekends and sometimes commence on the first weekend after the holidays and sometimes on the second weekend after the holidays.

8That time pursuant to Order 4.1. herein is suspended during periods of school holidays.

9Notwithstanding any other Orders herein, [the child] shall spend time with the Father on the weekend that includes Fathers’ Day from afterschool Friday until 4.00pm Sunday and where this constitutes an additional weekend, the weekend after Fathers’ day weekend shall be vacated in lieu of the Fathers’ Day weekend.       

10Notwithstanding any Order herein, [the child] shall spend the weekend of Mothers’ Day with the Mother, and where he was otherwise to spend that weekend with the Father, the weekend shall be made up on the weekend immediately following the weekend of Mothers’ day.

11That the parties shall keep each other informed of their current residential address and contact phone number and advise immediately of any change.

12The Mother will attend a domestic violence counsellor, provided that she is able to elect the counsellor and a specific counsellor is not prescribed, until such time as the counsellor advises that it is no longer necessary or beneficial for her to attend.

13That the Father is restrained from removing [the child] from school early on a Friday unless he has the written consent of the Mother.

14The Father is restrained from questioning or interrogating [the child] about events that occur in the home of the Mother.

Written Evidence

9.The applicant relied on:

·Affidavit of Mr Gibb filed 18 March 2015; and

·Affidavit of Ms O filed 18 March 2015.

10.The respondent relied on:

·Affidavit of Ms P filed 16 March 2015.

Expert Evidence

11.The following expert evidence was relied on:

·Child Responsive Programme Memorandum of Ms H dated 24 May 2013; and

·Family Report of Ms H dated 25 June 2014.

The Hearing

12.The hearing commenced on 23 March 2015.  The hearing was listed for four days but was concluded with final submissions on the third day.  On 25 March 2015, judgment was reserved.

Short History

13.The father was born in 1972.  As at the date of the hearing he was 42 years of age.  The mother was born in 1976.  As at the date of the hearing she was 38 years of age.  The parents were never married.  They lived together from 2001 until 2008.  The child B is the only child of the parents’ relationship and he was born in 2006.

Credibility

14.There are no factual disputes of critical importance.  An issue in the proceedings is whether the father was violent to the mother.  It is not a key issue, because there is no suggestion of physical violence in the last few years, there is no concern that the father will be violent to the child because it is the agreed position of both parents that the father should spend time with the child, overnight, for block periods and unsupervised.  As to the mother, I have no doubt that she is intimidated by the father but it is not necessary to find whether her fears are based on exposure to violence at the hands of the father or on something else.

15.During cross-examination the father gave his evidence in a very definite and emphatic manner.  He challenged some questions, asked questions of his own and was often non-responsive.  That said, I accept that the father may well have sought to accurately render his evidence.  Despite an earlier life compromised by physical abuse, his own drug and alcohol abuse and criminal history, his presentation before the Court did not evidence much self doubt or self criticism.  In my view much of the father’s evidence was distorted by his perspective on the events in question.  In the circumstances, such as the fact of his background, that is entirely understandable.

16.The mother’s written evidence was not entirely correct, for example in respect of the occasions when Mr C (“Mr C”) currently stays in her house overnight.  Oddly, the mother asserted that the father had influenced the child to complain about Mr C and the treatment of the child in the mother’s household.  Given that the mother’s own evidence starkly revealed that the complaints were entirely justified and appropriate, it is difficult to fathom the point of the mother’s assertion.

17.Nevertheless, in my opinion, the mother attempted, at some personal cost, to give candid oral evidence.  She struggled to recall some events, saying that her recollection was ‘hazy’.  The mother was clearly uncomfortable trying to recall and reveal some violent events.  However, despite presumably being aware that the evidence was damaging her case, I believe that the mother was very candid in respect of her relationship and interactions with her husband, Mr C.  In some instances the mother’s responses made little logical sense but to my observation that was more a reflection of the awful position in which she finds herself, rather than any attempt to mislead the Court.

18.For what it is worth, there were problems with the evidence of both parents and no finding can be made on the mother’s allegations about the father.  The mother provided a level of detail in relation to her allegations.  The father simply denied the allegations.  There is no independent evidence.  During cross-examination neither of the parents resiled from their evidence.  The fact of the father’s criminal history, and substance abuse during the parents’ relationship are not inconsistent with the mother’s evidence about the father, but that does not mean that her allegations are well founded.  

19.The father’s partner, Ms O (“Ms O”) confirmed the father’s evidence on some issues but of course she is not in a position to give probative evidence about the parents’ cohabitation.  Obviously, Ms O is not independent of the father.  She reflected very much the narrative of the father’s case.  For example, like the father, she asserted that he is passionate rather than aggressive.  Ms O gave evidence of the adverse impact of these proceedings on her household.  It is likely that she underplayed the influence of the father’s behaviour in creating stress on her household.  She sought to mislead the Court in relation to one matter.  She conceded that she has described the mother as a prostitute in communicating with her but asserted that she did not intend that to be derogatory, just an identification of the mother’s occupation.  That was a silly proposition, as if she would have recited “administrative assistant” or “accountant” in the same way.  Sadly, in the context of the risk factors in this case, derogatory comments between adults are not of the greatest concern.  On the other hand in relation to her separation from the father late last year, Ms O was able to concede that in supporting her sister over the objections of the father, she now considered that he was probably right and she was wrong.  If not on her judgment in exposing the child and her very young children to a house guest possibly using a very dangerous and illicit drug, that concession reflected well on her candour.

Background Facts

20.The parents started living together in 2001.

21.B was born in 2006.

22.The mother asserts that the parents separated for a period between July and September 2006.

23.It is the mother’s evidence that in June 2007 she proposed to the father that she work as an escort in order to improve the parents’ financial position.  It is her evidence that the father agreed.  The father rejected the proposition.  It is not possible to resolve that controversy.  In any event the mother did work as an escort for 12 months from 2007.

24.In September 2007 the father commenced a relationship with Ms O.  In September 2007 Ms O and the father commenced living together.  Ms O has a child from a previous relationship namely Q (“Q”) born in 2006.

25.On 3 March 2008 the father was sentenced to six months imprisonment for driving while disqualified.  The mother says that the parties separated at this time and the mother ceased working as an escort.  The father says that he did not see the child during his term in prison.  Ms O gave evidence that when the father went to gaol, the mother contacted her and told her that she (the mother) and the father were still in a relationship.  Angered or concerned by that information, Ms O did not visit the father in gaol.

26.On 10 May 2008 the mother commenced a relationship with Mr C.  Mr C had been a friend of the father.  The mother commenced cohabiting with Mr C on 24 May 2008.  Mr C has one child from a previous relationship, namely J (“J”) who was born in 2005.  J currently lives with Mr C (and the mother) for five nights a fortnight.

27.On 2 September 2008 the father was released from prison and resumed living with Ms O.

28.In September 2008 the parents agreed that the father would spend three days per week with the child.

29.From 26 October to 9 December 2008 the mother did not provide the child for contact with the father.

30.The parents attended mediation in December 2008 and agreed on a parenting plan that stipulated that the child would live with the mother and spend time with the father from 5.00 pm Wednesday until 6.00 pm on Sunday each alternate week.

31.In 2009 the mother commenced domestic violence counselling.

32.From 25 Ms O 2009 until February 2010 the mother was disqualified from driving.

33.On 28 May 2009 the child had an asthma attack and was taken to hospital when in the father’s care.  At 2.00 in the morning, the father signed the child out of hospital, against medical advice.  The hospital made a report to the Department of Family and Community Services (“DFACS”).  On 29 May 2009 or 2 June 2009 DFACS took the father and the child to hospital for the child to be medically examined. 

34.The mother deposed that the father withheld the child from her from 16 September 2009 to 28 November 2009.

35.On 6 November 2009 the mother filed an Initiating Application in this Court seeking that the child live with her and spend time with the father each alternate weekend from 6.00 pm on Friday until 6.00 pm on Sunday.

36.On 25 November 2009 interim orders were made for the child to live with the father and spend time with the mother each weekend from 9.00 am Saturday until 6.00 pm Sunday.

37.On 28 November 2009 the mother spent the weekend with the child and withheld him from the father.

38.On 30 November 2009 the father filed an application for a recovery order and that order was made.

39.On 7 December 2009 final orders were made in the family law proceedings between J’s parents about J.  Orders were made for J to live with her mother and spend time with Mr C in a two week cycle, in week one from Friday to Tuesday and in Week 2, from Monday after school to before school Tuesday.  I gather that those orders remain in place.

40.On 22 December 2009 interim orders were made for the mother to spend time with the child from 10.00 am to 2.00 pm every Saturday, supervised by R Play Centre.

41.In 2009, K (“K”) was born to the mother and Mr C.

42.Interim orders were made in February 2010 for the child to spend time with the mother from Wednesday to Saturday in one week and Thursday to Monday in the following week.

43.On 15 February 2010 the father was arrested for driving while disqualified and breaching bail conditions.  In May 2010 he was sentenced to home detention until November 2010. 

44.In 2010, a boy, S (“S”) was born to Ms O and the father.

45.In 2010 the mother and Mr C were married.

46.In January 2011 the child commenced school at Suburb T Public School.

47.In 2012, a girl, U (“U”) was born to Ms O and the father.

48.On 20 February 2012 final orders were made by this Court by consent.  The orders included that:

a)The parents have equal shared parental responsibility;

b)B live with the parents in a four week cycle:

i)Week 1, 4.00 pm Sunday to after school Friday with the mother,

ii)Week 2, 4.00 pm Sunday to after school Friday with the mother;

iii)Week 3, 4.00 pm Saturday to after school Friday with the mother;

iv)Week 4, 4.00 pm Sunday to 4.00 pm the following Sunday with the mother;

v)The child is to live with the father at all other times.

c)B spend half of each holiday with each parent;

d)Each parent is at liberty to consult any of the child’s medical practitioners;

e)The mother is to sign an appropriate authority for the school to authorise the release of information to the father;

f)Without admissions each parent is restrained from consuming alcohol to excess while they have care of the child; and

g)Without admissions each parent is restrained from using or being under the influence of any illegal drug while the child is in their care or bringing the child into contact with any other person who is using or under the influence of any illegal drug.

49.On 19 October 2012 the father refused to return the child to the mother’s care.  On 22 October 2012 the father enrolled the child at N Town Public School.

50.On 24 October 2012 the mother filed an Initiating Application in the Federal Circuit Court seeking a recovery order.

51.On 9 November 2012 Federal Magistrate Monahan, as he was then known, made orders in agreed terms, including that: the mother’s application for a recovery order be dismissed; that the existing orders be suspended; that the child live with the father and spend time with the mother from 9.00 am Saturday to 5.00 pm Sunday each week, and that the mother, without admissions, not bring the child into contact with Mr C.

52.On 23 November 2012 Federal Magistrate Monahan ordered by consent that the child live with the mother and spend time with the father in accordance with the orders made 20 February 2012.  He also made other ancillary orders including that the mother was not to permit Mr C to be present in the family home when the child is present, or to come into contact with the child, except when J is staying in the family home, the mother is not to permit the child to be left alone with Mr C at any time.  The mother also gave undertakings on that day, including that she attend relationship counselling with Mr C at least fortnightly, to continue attending upon her current counsellor, not to expose the child to any verbal argument or physical altercations with Mr C, and to ensure the child is not to be left alone with Mr C.  Mr C gave undertakings in similar terms as those given by the mother, in addition to undertakings that he would not stay overnight on weeknights when the child was at home except on the nights J sleeps over, that he would attend an anger management course within six months, not to engage in any physical discipline of the child, that he would leave the home if there is any verbal altercation with the mother, not to drink alcohol while in the home with the child, and not to be home alone with the child at any time.

53.In 2012, a daughter, L (“L”) was born to Mr C and the mother.

54.On 22 February 2013 Federal Magistrate Monahan transferred the matter to this Court.

55.On 12 March 2013 the father filed an Amended Initiating Application seeking that the orders of 20 February 2012 be revoked, that he have sole parental responsibility for the child and that the child live with him.  He sought that the child’s time with the mother be as determined following the receipt of a report from the family consultant.

56.On 8 April 2013 the mother filed an Amended Response seeking that the father’s Amended Initiating Application filed 12 March 2013 be dismissed, or in the alternative, that the child live with her, that the parents have equal shared responsibility for the child and that the child spend time with the father each alternate weekend from 3.00 pm Friday until 4.00 pm Sunday and for one half of each school holiday period.

57.In May 2013 the child commenced a six week program for the support of children affected by parental separation (“the Anchor program”) at Unifam.

58.On 11 May 2013 an incident occurred at the mother’s home between the mother and Mr C.  Details of the incident are provided below.  Mr C was charged with assaulting the mother and an Apprehended Domestic Violence Order (“ADVO”) was taken out by the police against Mr C, protecting the mother, K and L.  The mother subsequently resided in a refuge and the child was temporarily enrolled in Suburb V Public School.

59.The mother and Mr C separated for a period from 15 May 2013 to August 2013.

60.On 3 June 2013 an incident occurred between the mother and father resulting in a provisional ADVO being obtained by NSW Police against the father protecting the mother and the child.  The details of this incident are provided below.

61.The mother commenced counselling with Ms W, a clinical psychologist, in June 2013.  She attended ten sessions with Ms W, ceasing counselling in April 2014.

62.In June 2013 the mother and Mr C commenced attending marriage counselling sessions at Interrelate.  They attended six sessions.

63.The father lost his job as a tradesman in June 2013.

64.On 5 July 2013 Dr X, paediatrician, wrote to Dr Y regarding his review of the child on 20 June 2013.  He noted that the child appeared to be suffering from allergic rhinitis and was taking long term asthma preventative treatment.  He opined that the child otherwise appeared normal on physical examination.  Dr X noted that the child could be a little fidgety and restless at times but that he did not perceive this as being an intrusive problem.  He opined that the child will at some level be affected by the strains and emotional upheaval in his life.

65.On 20 July 2013 the child attended an appointment with Dr X to which both parents presented individually.  The father expressed concern that the child was being exposed to domestic violence.  The mother says she was shocked to see the father at the consultation and was intimidated by him.  The father left the appointment at the mother’s request.  Dr X recorded that at no stage was either parent aggressive, abusive or rude.

66.On 16 August 2013 the mother’s solicitor advised that the mother had returned to live in the home she had shared with Mr C, as he was overseas.  She noted that Mr C had agreed that when he returned from Country I he would not live in their former matrimonial home when the child was in the mother’s care.  The mother’s solicitor deposed that Mr C was going to commence a course “enough is enough” or other courses recommended by the counsellor, on his return from overseas.  She noted that the mother was attempting reconciliation with Mr C in a guided and supportive manner.

67.The mother and Mr C separated on 21 January 2014 following an incident between them which led to the mother being charged and convicted of assault occasioning actual bodily harm and malicious damage.  The details of this incident are detailed below. Following this incident the mother moved with L, K and the child to a women’s refuge in Suburb Z.  She stayed there until 25 April 2014 when she signed a 12 month lease on premises in M Town.

68.The mother commenced working full time as an administrative assistant at the end of April 2014.  She said that necessitated L and K returning to live with Mr C at the former matrimonial home.

69.In August 2014 the mother and the child moved back to live with Mr C and the younger children at the former matrimonial home at M Town.  The mother said that she and Mr C reconciled; that she was missing her youngest children; and that they were missing her.  The mother arranged for a friend to move into her rented property at M Town and the friend contributed to the rent.

70.In September 2014 the mother resigned from her job.  She found the workplace stressful.

71.The father was taken to a general medical practitioner by his pastor.  In around September 2014 the father was prescribed with the anti-depressant, Mirtazapine by the GP and was referred to a psychologist called Ms AA from Moving BB Psychological Services.  The father commenced seeing Ms AA fortnightly on 7 November 2014.  As at the date of the trial the father continues to take Mirtazapine, 15 mls at night and he continues to attend on Ms AA.

72.After an argument about Ms O’s sister, in December 2014 the father moved out of the home he shared with Ms O.  Ms O and the father have thereafter lived in separate houses under an arrangement whereby Ms O, U and Q live in a house in N Town and the father, S and the child (when he is with the father) live in a single bedroom unit provided by the father’s Pastor, at CC Town (also on the Region G).  At CC Town, the father sleeps in the lounge room and the boys share the bedroom.  Ms O, the father and all the children come together each weekday afternoon and on weekends but Ms O drives the father, S and the child back to CC Town after dinner (after 6.00 pm) each weeknight.  Both the father and Ms O gave evidence that once the case is over and they know how many bedrooms they will need, they will rent new premises together, in the area of N Town.

73.The mother deposed that she and Mr C separated in November 2014 and Mr C moved out of the home.  The mother said Mr C stays overnight when J is there, being alternate Friday to Tuesdays and Monday to Tuesday in the off week.  Almost immediately after confirming that evidence the mother said that Mr C also sleeps over on other nights.  I gather that those additional nights are without either notice to the mother or her consent.  She said something to the effect that she is powerless to stop him.  It was the mother’s evidence that in any event, she and Mr C sleep in separate bedrooms and have not had a sexual relationship since November 2014.  It is the mother’s evidence that she and Mr C are having a break from their relationship.  Mr C stays at factory premises when not staying with the mother.

74.Therefore, the child mainly lives with the mother, L, K and J in a four bedroom house in M Town.  Mr C is there on the five nights a fortnight that J lives there and on random other nights.  The child is in Year 4 at Suburb T Public School and spends three of four weekends with the father under the regime described above, from 4.00 pm Friday until 4.00 pm Sunday and for half of each school holidays.  The child’s current school report records that he is doing well at school, that he is generally happy, cheerful and enthusiastic.

The Expert Evidence

75.The family report writer was Ms H.  Her qualifications include a Bachelor of Social Work (Hons) and a Graduate Diploma in Legal Studies.  She is also presently studying a masters in Mental Health (Child and Adolescent).

76.Ms H has worked as a family consultant with the Family Court of Australia since 2009.  Before then she had the following roles: in 2002 she worked as a mediator with the Family Court of Australia; from 2000 – 2005 as a Workshop Leader, for a Preparation for Parenting; from 1997 – 2005 a Group Facilitator for Group Parenting Programmes; and a Social worker.

77.Ms H prepared a report in this matter dated 25 June 2014, reflecting her observations at interviews in April 2014.

The Legislation

78.The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).

79.Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests. Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.

80.The sequence of decision making for identifying appropriate parenting orders under Part VII starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility.  The presumption may not apply but if it does apply, it can be rebutted.  If an order will be made for equal shared parental responsibility, s 65DAA requires that the court consider making an order for equal time and if that is not ordered, for each party to have substantial and significant time.  Findings are made by reference to what is in the child’s best interests.

81.For the purposes of these reasons, I will adopt the following approach:

a.Set out the proposals, including any options not advanced by a party that the parties addressed or could have addressed;

b.Where possible and relevant, consider and make findings about matters set out in s 60CC;

c.Consider and make findings about parental responsibility, including considering the presumption in s 61DA;

d.Apply s 65DAA if relevant and assess the proposals in light of that provision;

e.If 65DAA is not relevant, assess the proposals against the best interests criterion;

f.Consider and make findings about living arrangements; and

g.Make orders.

The Parties’ Proposals

82.The father proposes that he have sole parental responsibility for the child.  He seeks that the child live with him and spend time with the mother, during school term on alternate Saturdays, and some special days, day only.  He seeks that the child spend time with the mother for a week of each school holiday period provided it occurs at the home of the maternal grandmother or maternal aunt.  In any event, the father seeks that the mother be restrained from allowing the child any contact with Mr C.  The father proposes that the child attend at N Town Public School.

83.The mother seeks orders similar to the current arrangement.  She seeks that the parents have equal shared parental responsibility and that the child live with her and spend time with the father on alternate weekends and half the school holidays.  Among other orders she seeks an order that she attend a domestic violence counsellor of her choosing.

84.The ICL seeks no change to the orders about parental responsibility.  She seeks orders similar to those now proposed by the father, but with no proposal for holiday time with the mother.  Importantly, the ICL proposes that those orders be made on an interim basis.  The ICL proposes a raft of orders for counselling, that a fresh family report be prepared and that the matter come back to Court in not less than six months.

85.The range of dispute on the key areas seems to be:

a)Whether the parents should have equal shared parental responsibility, or the father should have sole parental responsibility;

b)Whether the child should primarily live with the mother or the father;

c)Whether the child’s time with the mother should be conditional on her preventing any contact between him and Mr C; and

d)Whether orders should be made on a final or interim basis.

Section 60CC Considerations

86.Section 60CC specifies the following considerations:

Primary considerations:

Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

252.The father proposed that the appointment of the ICL remain in place for 12 months.  The orders proposed by the ICL and by the father contemplate on ongoing role for the ICL in relation to information about counselling.  In support of that role I will extend the ICL’s appointment for three months from the date of judgment.  A 12 month extension was not supported on behalf of the ICL (in the event that final orders are made) and I was counselled not to make such an order without expressing a very clear purpose for the continuation of that role.  Looking objectively at this issue, the attraction in retaining the appointment relies on the ICL as sounding board, honest broker and safety valve.  In reality, those roles should be provided in the community – whether through DFACS, non-government agencies or otherwise.  Much as I would be comforted by the proposed order, subject to any appeal, the Court’s role should end.  

253.An irony of the proceedings is that the focus is necessarily on the child while his younger and therefore more vulnerable, siblings, five year old K and two year old L have also been exposed to the circumstances of the mother’s household.  The evidence suggests that they may be favoured over the child by their father but over the last two years, they were exposed to many of the violent incidents to which the child was exposed and to some that he was spared.  J is older than the child and has time away from her father’s household but she too has been exposed to some of this behaviour.  I will order that these reasons be referred to DFACS in respect of those children.  There is no doubt that any support that can be given to those children, to the mother and Mr C will assist the children, improve the lot of the mother and hopefully, of Mr C.  Importantly it has the potential to produce an immeasurable dividend, both social and financial to the community.  In the latter regard, as is painfully obvious, the subtext of these proceedings is the intergenerational effects of abuse.

I certify that the preceding 253 (two hundred and fifty three) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 9 April 2015

Associate: 

Date:  9 April 2015