Gibbins and Rainey

[2017] FCCA 111

FEDERAL CIRCUIT COURT OF AUSTRALIA

GIBBINS & RAINEY [2017] FCCA 111

Catchwords:
FAMILY LAW – Parenting – intervention by Department of Family and Community Services after concluded trial resumed – family violence – issue of unacceptable risk with father – relationship between mother and child damaged – reunification therapy.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61C, 61DA & 65DAA

Child Protection Offenders Registration Act 2000 (NSW), s.21E

Cases cited:

McCall & Clark (2009) 41 Fam LR 483
Mazorski & Albright (2007) 37 Fam LR 518

Brown & Dunne (1893) 6 R 67

Applicant: MR GIBBINS

Respondent: MS RAINEY

Intervener: SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

File Number: SYC 6339 of 2013

Judgment of: Judge Cole

Hearing dates:

19, 20 & 21 August 2015, 15, 16, 17 &

18 August 2016

Date of Last Submission: 9 November 2016

Delivered at: Adelaide

Delivered on: 31 January 2017

REPRESENTATION

Counsel for the Applicant: Mr Ladopoulos then Mr Bateman

Solicitors for the Applicant: D Riggio & Associates

Counsel for the Respondent: Ms Carr then Ms Neville

Solicitors for the Respondent: Children's Law Chambers

Counsel for the Intervener: Mr Moore

Solicitors for the Intervener: Secretary, Department of Family & Community Services

Counsel for the Independent Children's Lawyer: Ms Reynolds

Solicitors for the Independent Children's Lawyer: Peter Baker Solicitors

UPON NOTING:

A.The notations of the Order made on 18 August 2016 and the Order made on 6 October 2016; and

B.For the purpose of the order contained in paragraph 4 herein, the Intervener proposes to transition the child X to live with the mother; and

C.If the Intervener’s delegate considers that the paternal grandparents Mr P and Ms T are not facilitating a meaningful relationship between the child and the mother it is envisaged that the child will be placed in an alternative family placement or authorised placement during any period in which the child is transitioned to live with the mother.

ORDERS

1. That the Minister for the Department of Family and Community Services exercise parental responsibility for the child X born on (omitted) 2006 for a period of twenty-four (24) months from the date of this Order.

2. That at the expiration of the order contained in paragraph 1 herein, the mother exercise sole parental responsibility for the said child.

3. That the said child shall live as directed by the Intervener or his delegate for a period of twenty-four (24) months.

4. That at the expiration of the order contained in paragraph 3 herein, the said child shall live with the mother.

5. That for a period of twelve (12) months, the said child shall spend time with the father on a minimum of twenty-six (26) occasions per year for a duration of two (2) hours, supervised at the discretion of the Intervener, and at such other times as is agreed between the parties in writing.

6. That subject to the written recommendations of the therapist (with a copy to be supplied to all parties) there be liberty to the Intervener to suspend the father’s time with the said child for a three (3) to six (6) month period only to allow for the said child to receive appropriate therapy for the purposes of supporting her transition to living with the mother.

7. That at the expiration of the order contained in paragraph 5 herein, the said child shall spend time with the father at times and for a duration as can be accommodated by a Contact Centre specified by the Intervener, or under such other supervision as can be agreed in writing in the event of the Contact Centre not being available, on not less that twenty-six (26) occasions per year.

8. That the mother and father are hereby restrained and injunctions are granted restraining each of them from:

   (a)Denigrating the other in the presence of the said child or permitting the said child to remain in the presence or hearing of another person denigrating the other;

   (b)Exposing the said child to any form of family violence including verbal violence or using abusive language to, within, or in the hearing of the said child;

   (c)Physically disciplining or striking the said child; and

   (d)Questioning the said child about the appropriateness of the other parties’ behaviour or parenting while taking care of or spending time with the said child.

9. That unless otherwise agreed by the mother, the father is hereby restrained and an injunction is granted restraining him from entering or approaching within two hundred (200) metres of:

   (a)The residence of the said child;

   (b)Any educational institution attended by the said child; and

   (c)Any venue where the said child is participating in extra-curricular activities.

10. That leave is granted to the Intervener or his delegate to provide a copy of the Family Reports prepared by Dr J dated 22 August 2014 and 6 June 2016 to any service engaged to assist the mother, the father or the said child for the exercise of the Intervener’s State welfare powers.

11. That the appointment of the Independent Children’s Lawyer is discharged.

12. That all applications are otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6339 of 2013

MR GIBBINS

Applicant

And

MS RAINEY

First Respondent

And

SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Intervener

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the parties’ child X born on (omitted) 2006, who is aged eleven this year.

2. X’s parents were with the Independent Children's Lawyer engaged in a three day hearing in 2015 seeking parenting orders in respect of their daughter.

3. Prior to Judgment being delivered, an application was made by the Secretary of the Department of Family and Community Services (“the intervener”) seeking leave to intervene.

4. The application was made following X being found in the company of a person registered on the Child Sex Offenders Register. The application for leave to intervene was not opposed and leave was accordingly granted.

5. Prior to the application for leave to intervene, an emergency care and protection order had been obtained by the intervener from the Children’s Court of New South Wales on 19 November 2015. This followed the incident referred to above.

6. On the expiration of that order I made interim orders providing, inter alia, that pending further order the Minister for Family and Community Services exercise parental responsibility for X and that X live as directed by the intervener.

7. X was placed by the intervener with the paternal grandparents, Mr P and Ms T.

8. Counsel for the intervener advised that following the protocols between the Department and the Federal Circuit Court in New South Wales, they were seeking to proceed with the matter in this Court, rather than pursue the matter through the Children’s Court of New South Wales.

9. The earliest available date for the listing of a four day trial was in August the following year and the matter was accordingly set down for the hearing to resume.

10. It was clearly understood that the parties were to canvas events that had occurred since the initial trial concluded in 2015. This course was essentially followed during the course of the adjourned hearing.

11. An updated family report was ordered and subsequently published in June 2016.

12. The applicant father continued to seek orders that he have sole parental responsibility for X and that the child live with him. In addition he proposed that orders be made that in effect enabled a graduated program of time between X and her mother to enable their relationship to be re-established.

13. All parties agreed to attending upon Dr L, psychologist, and notations were made to the Order made on 18 August 2016 that set out the terms of the parties’ understanding of the arrangements pending Judgment.

14. The intervener sought orders that effectively gave the Minister sole parental responsibility for 12 months and enabled a program to be undertaken to effect reunification between X and the mother, with a view to transitioning the care of the child from her paternal grandmother and grandfather with whom she currently resides to her mother.

15. The mother and the Independent Children's Lawyer supported the orders sought by the intervener.

Background

1. The father was born on (omitted) 1977 and is aged 40 this year. The mother was born on (omitted) 1984 and is aged 33 this year.

2. The parties commenced cohabiting in or about (omitted) 2005.

3. X was born on (omitted) 2006.

4. The parties engaged in a relationship that can best be described as dysfunctional. I will refer to the allegations of violence amongst other things in the course of these Reasons.

5. The parties separated in or about 26 February 2012 following an argument. The details of the dispute are controversial save that the father admits the parties fought and that he subsequently pleaded guilty to charges of common assault and assault occasioning actual bodily harm. He was convicted and placed on a two year good behaviour bond.[1] An Apprehended Violence Order was also obtained by the mother which was subsequently varied to the extent that he was able to see X.

   [1] See father’s affidavit filed on 29 October 2013, 57.

6. X remained living with the mother. The father did not spend time with X on his evidence until July 2012. He subsequently spent time with X as agreed between the parties.

7. On 21 September 2013, the father took X to the (omitted) Police Station to report his concerns about bruising on the child’s arms which he reported the child said were caused by the mother.

8. An Apprehended Violence Order was granted against the mother and she was served on 23 September 2013. This was subsequently varied on 24 September 2013 when X was taken off the order.

9. On 24 September 2013 there was an incident at (omitted) where the parties got into a fight when the mother attempted to physically take X from the father and the paternal grandmother. The mother was subsequently arrested, denied bail and incarcerated for a period of approximately two months.

10. X remained residing with her father from September 2013 until she was removed by the intervener on 13 November 2015 and subsequently placed with the paternal grandparents, where she currently resides.

11. An attempt was made for the child to spend time with the mother at a Children’s Contact Centre in March 2015, which was not successful.

12. The child did see her mother at the family consultant interviews in 2015.

13. She saw her mother again for the purposes of preparation of the updated family report.

14. She had also as at the date of the hearing spent one period of supervised time with her mother at the offices of Family and Community Services.

15. She has continued to speak with her mother on the telephone on a weekly basis.

16. There is no dispute that:

    a)X was with her father from 2013 following a number of incidents culminating in a fight at (omitted);

    b)since 2013 she has spent little or no time with her mother;

    c)the mother concedes that her relationship with her daughter is damaged, however does not concede that it is broken;

    d)there has been no serious attempt at reunification between the mother and her daughter to date;

    e)X was found by the police at the house of a man known to the father as Mr S, when they raided it in respect of other concerns that they had. She was discovered by police when they entered the premises;

    f)Mr S is a person on the Child Sex Offenders Register and is not allowed to be alone in the company of a minor. The father’s evidence is that he was unaware of this;

    g)on 13 November 2015 X was placed in the care of the paternal grandmother by the Secretary;

    h)the father was aware that Mr S had his two children removed from his care due to amongst other things the concerns of the Department of Family and Community Services about domestic violence issues between he and his partner, who I will refer to as Ms M;

    i)at the time of the police raid Mr S’s partner was in hospital receiving treatment for cancer;

    j)the father had left X in the care of Mr S while on his evidence he undertook a job to (employment omitted). On his evidence he chose not to leave the child with his mother, because she would get cranky with him;

    k)he and the paternal grandmother had previously discussed her concern that X was staying out late at night during the school week; and

    l)the father had previously been pulled over by police at 2:30am with X in the car. There is some controversy about the circumstances of that incident and whether or not X was asked to hold documents that confirmed the father’s identity after he had given the police an incorrect name.

17. Mr S is a person on the Child Sex Offenders Register. Counsel for the intervener draws my attention to the Child Protection Offenders Registration Act 2000 (NSW) (“the Registration Act”).

18. Section 21E of the Registration Act prohibits disclosure of any information relating to a registrable person except in certain circumstances.

19. Although it is common ground the police were investigating this person for breaches of the Registration Act, it is submitted that any reference to him should be by way of pseudonym so that his identity can be protected.

20. To minimise the potential for any controversy, I will therefore for the purpose of these Reasons refer to this man as Mr S, being not his real name but the name by which X and the father knew the man. I will also refer to his partner as Ms M (not her real name).

The evidence

1. The father for the initial hearing relied on:

   a)his Initiating Application filed on 29 October 2013;

   b)his Affidavit filed on 12 August 2015;

   c)his Affidavit filed on 29 October 2013;

   d)the Affidavit of his mother filed on 12 August 2015; and

   e)the Affidavit of his father filed on 12 August 2015.

2. The father and the paternal grandparents gave evidence in the initial hearing and were cross-examined.

3. No case outline was provided for the adjourned hearing however it would appear that the father relied on:

   a)his Affidavit filed on 25 July 2016;

   b)the Affidavit of his mother Ms T filed on 11 August 2016; and

   c)the Affidavit of Mr P filed on 16 August 2016.

4. The father, his mother, and Mr P gave evidence at the adjourned hearing and were cross-examined. The paternal grandfather did not give evidence.

5. The mother for the initial hearing relied on:

   a)her Response filed on 20 November 2014; and

   b)her Affidavit filed on 18 June 2015.

6. The mother gave evidence and was cross-examined.

7. The mother for the adjourned hearing relied on:

   a)her Affidavit filed on 1 August 2016; and

   b)the Affidavit of Mr M, her fiancé, filed on 1 August 2016.

8. The mother and Mr M gave evidence and were cross-examined at the adjourned hearing.

9. Both parties referred to the report of Dr J dated 22 August 2014. Dr J gave evidence and was cross-examined at the initial hearing.

10. An updated report was published on 6 June 2016. Dr J gave evidence and was cross-examined at the adjourned hearing on the first day.

11. The Secretary relied on:

    a)the Affidavit of Ms I filed on 24 December 2015;

    b)the Affidavit of Senior Constable A filed on 14 July 2016; and

    c)the Affidavit of Ms S filed on 29 July 2016.

12. All three witnesses gave evidence and were cross-examined.

The father

1. The father conceded that he had a past that involved amongst other things, consumption of illicit substances including heroin, cannabis, speed and cocaine.

2. He conceded he had a conviction for possessing cocaine.

3. The father also conceded that he had convictions for assault and assault occasioning bodily harm, which related to the incident that occurred between himself and the mother on 26 February 2012.

4. The father’s criminal records in New South Wales and Queensland were tendered to the Court and marked as exhibits “A” and “B” respectively.

5. The father in the initial hearing was questioned in respect of his criminal record. I had a lot of difficulty in accepting that evidence (even though at that time the last conviction was in 2008 for possession). His answers in respect of his drug convictions were at best barely adequate.

6. In respect of the allegations of violence, he was challenged in respect of events alleged to have occurred in 2008, 2010 and 2011. He either denied the allegations or would say that he could not recall. None of the allegations were conceded save for his version of the incident in February 2012.

7. He recounted the incident in September 2013 when X came to stay with him. While she was getting ready for the bath she winced in pain when she was removing her top. It was then he discovered the finger like bruises on both arms. He confirmed that X had reluctantly disclosed to him that her mother had done this. He then took X to the (omitted) Police Station where she was interviewed.

8. Following their attendance at Court on 24 September 2013 in respect of that incident, the mother attempted to take X by force from the father and his mother whilst they were at a (omitted) restaurant. The parties agree it was a traumatic event for X.

9. When the (omitted) incident was later raised by X, he would tell her that her mother has never behaved like that in the years they lived together and that he was sure that she had learnt her lesson. This evidence was repeated to some extent when he was questioned at the adjourned hearing.

10. In the course of evidence at the initial hearing, he agreed to X spending each alternate weekend with her mother. There is no evidence of any effort being made by him to put this in place in the following three to four months following the conclusion of the initial hearing.

11. There had been an attempt at supervised contact in March 2015 and X had refused to spend time with the mother. Following that visit, the Centre recommended X be enrolled in the Anchor Program. That did not occur. The father’s evidence was that he was now prepared for that to occur.

12. I am unable to ascertain why the failure to pick up the recommendation was not challenged by the Independent Children’s Lawyer or the solicitors for the mother, once the report had issued and the recommendation was known.

13. The father’s evidence was that he did not follow the Centre’s recommendation at the time because X was then seeing Mr K and he (Mr K) suggested that there were too many counsellors and that it would not be of much benefit for the child. I have a lot of difficulty with that answer.

14. On further questioning he confirmed that she saw Mr K on 15 February 2015, 28 February 2015 and 14 March 2015. His evidence at the initial hearing was that she sees him every four weeks.

15. The child was also at the time of the initial hearing seeing the school counsellor, being a lady called Ms H every three weeks.

16. The father was pressed on a number of occasions by counsel for the mother and the Independent Children’s Lawyer about what steps he had taken to assist with the repair of X’s relationship with her mother. His answers, considering the time it has taken this matter to get to trial, were not helpful.

17. With respect to what action was taken after the initial hearing and prior to X being taken into care, his answers were again less than satisfactory. He contended that he was waiting for the orders of the Court, and could give no other reason as to why he had not been proactive in taking steps to resolve what he saw was a problem for his daughter and what he said he supported in that he considered it important that she have a relationship with her mother.

18. His evidence was selective and where it was inconsistent with prior statements, unrepentant. Answers such as, “I only skimmed the police statement” when explaining why his evidence now was different gave me no confidence.

1. I will address the incident of 12 November 2015 and his evidence on that topic separately.

The paternal grandfather

1. The paternal grandfather in many ways attempted to present as a bystander to the dispute with his wife and son attending to the daily issues. I am not certain that this provides the full picture. His willingness to support the relationship between his granddaughter and her mother remains questionable.

The paternal grandmother

1. The paternal grandmother agreed that she drove with her husband to the house to find out what had happened when the parties separated in 2012. She conceded that her son had told her that he and the mother had argued at times and in the course of arguments he would hit her and she would hit him.

2. She blamed them both for the conflict during the relationship.

3. She was aware of some of her son’s past drug history saying “as far as I knew it was heroin”.

4. She agreed her son’s employment history was very poor.

5. She was unaware of any violence in respect of the breakup of her son’s past two relationships.

6. She confirmed at the initial hearing, that the child had bruising all over her when the incident was discovered in September 2013. She confirmed X had disclosed that the mother had dragged her over the tiles. She could not say how old the bruises were although she noted that they can discolour. She could only go on what her granddaughter had told her.

7. She conceded however that she had not set out anything in her first trial affidavit filed on 12 August 2015, to say that the child is at risk in the mother’s care.

8. She was seeing Mr K prior to X attending upon him. He was her counsellor following the incident at (omitted). He had been provided by the people who look after victims of domestic violence. I accept that the events that occurred at (omitted) had a significant effect on the paternal grandmother.

9. She was the one who took X to see Mr K.

10. She saw Mr K with X on or about 14 February 2015. She conceded she was in the room with X at the first interview.

11. The appointment with Mr K arose from an incident at X’s primary school where it was brought to her attention that X was frightening children by telling them what her mother had done. The grandmother then phoned Mr K and explained what had happened. He knew the history of this matter from when the grandmother went to him. She conceded it would have been important to say there was a history of violence and drugs on the part of both parties.

12. She was questioned about her son’s health and confirmed that she was of the view that her son was no longer using illicit substances.

13. Her account of the (omitted) incident was not seriously challenged. I accept that it would have been a traumatic event for her. I have concerns however as to whether she has been able to move on and whether her lack of progress has meant that X has been unable to put that aside and the grandmother has been unable to challenge her, or provide her with a reality check on that issue.

14. I accept Dr J’s evidence that there is a concern that she and her husband are not showing any sign of being able to do anything other than passively acknowledge that the child is scared of her mother.

15. They are unable to take control of the situation and challenge in an appropriate way X’s current perception of her mother.

16. I also have concerns that the paternal grandmother’s evidence supported a conclusion that she was protective of her son and showed a reluctance to acknowledge to this Court the difficulties he faced.

17. She appeared at times to operate on a need to know basis in that if she did not ask her son the question, she would not need to be concerned by the answer. Furthermore, her evidence about the number of times she had noted the father had been out late on the toll roads concerned me and I will refer to that later in these Reasons.

Dr J – the report writer

1. Dr J provided two reports, both of which were accepted into evidence.

2. She acknowledged that it was difficult to leave the child where she was due to, amongst other things, the apparent lack of ability to change the child’s beliefs.

3. She noted at the initial hearing the father’s proposal on the face of it was fine, however also noted that he had a lot of opportunity to do something and had not.

4. She was concerned about what he had told the child about coming to see her on the first occasion. She confirmed however that the main concern for X was that her parents might want to fight in the office.

5. She formed the view that the child wanted the mother to be in her life provided her parents get on.

6. She considered that spending time with her mother was part of the process of X rebuilding her relationship. She noted[2] that if X was unable to return to live with her father, her relationship with her mother is still not nearly well established enough to support that she should go and live with her at this juncture. It is possible that will change if they start spending more regular time together.

   [2] Dr J’s report dated 6 June 2016, 71.

7. She considered in respect of the counselling undertaken by X that it was completely inappropriate for the grandmother to be sitting in on the counselling session. It was poor practice particularly in the context of a family law dispute.

8. She confirmed that a child who was consistently told negative things or whose fears are never challenged risks having issues with their mental health.

9. She had no doubt that the (omitted) incident would have been scary and terrifying. She did not know however whether anyone reinforced this view.

10. She noted the child’s apprehension in the waiting room on the first occasion. Ninety-five percent of children who presented as scared in her experience usually have a parent who is unable to support the child having a good relationship. She conceded this was anecdotal and based on her sense of her experience alone.

11. She had a concern that the father had done nothing to reassure X that she was safe or to give her a balanced perspective on what it was about. This concern subsequently extended to the paternal grandparents.

12. She noted in the course of her evidence at the adjourned hearing, that there had been no progress of re-establishing the relationship between X and her mother.

13. She also expressed concern the father was crying on the phone to X and his emotional interaction with her as set out in the report.[3]

    [3] Dr J’s report dated 6 June 2016, 52-53.

14. She noted that an appointment for reunification had been organised by the Department.

15. She expressed concern about the passivity of the father and the grandparents. Their attitude was that X does not want to see her mother. Their position was, that’s your (X’s) opinion and there is nothing we can do to change this.

16. She identified this as the barrier. They do not seem to acknowledge the negative effect of passively accepting that she is still scared of her mother. They are not saying come on! They are not saying anything critical.

17. She was hoping there may have been some shift however that is not apparent.

18. The concerns that the Department of Family and Community Services had then, may be ongoing.

19. The father’s behaviour suggested to her that he may be emotionally dependent on X and unwilling or unable to see how his actions may have contributed to the current situation.

20. When asked if her ongoing fears being left unchallenged would have an effect on the child, she said that in the short term not a lot however in the long term it would be significant. X could form the conclusion that if mum was so terrible, what is it about her.

21. When cross-examined by Ms Bateman, she confirmed that she considered that X had been passively discouraged. Her view was that children are aware of adult’s non-verbal communications.

22. She made it clear that she considered the (omitted) incident to be a traumatic one. It may be one factor but the father perceives it as the defining factor. There were however a lot of other factors at play. It would be more helpful if the father had a developed view.

23. She had severe reservations about the father’s ability to promote the relationship between X and her mother. He did not appear to get why she thought X’s relationship with her mother was important.

24. She does not know whether he can comply with any orders that may be made. If he complied with the orders it would be less traumatic if it were possible. X however needs more than encouragement.

25. She was clear that time with her mother as per X’s wishes was not appropriate.

26. She was not sure if it would make a difference if someone else collected X at the commencement and conclusion of time. As a generalisation picking up from school might be a good idea.

27. She conceded it was quite possible that the mother acted impulsively at the (omitted) incident. There was no indication that this is a common pattern of behaviour. She was not aware that she was a person prone to impulsive behaviour from the information given. She considered the incident to be very serious and very inappropriate but did not think it would happen again.

28. There was no evidence to indicate that Mr Gibbins had, since their involvement, done anything to address the concerns raised by the Department of Family and Community Services.

29. With respect to the paternal grandparents, she noted that the grandmother was protective of her son and was concerned about her reluctance to acknowledge the difficulties faced by him.

30. Regardless of whether or not he knew anything about Mr S, she raised a concern that leaving the child with a person he barely knew to watch a movie in his bedroom raises a concern as to whether he put her interests before his own.

31. She considered an appropriate school night bedtime for a year four student to be 8.30pm to 9.00pm. She agreed with my question that children need their sleep for development.

32. The father’s proposals were put to her. She agreed with supervision in the beginning to allay any fears that may be experienced by X. She also thought that the pace of X’s time with her mother may be set by the therapist in charge of the process.

33. Four weekly sessions of a couple of hours she considered to be appropriate. The father’s proposal that it be 45 minutes was not long enough. The time should occur on a Sunday if possible although some concern was expressed about the availability of the Children’s Contact Centre to assist. X’s telephone call with her mother could then be shifted to mid-week and could occur by Skype or FaceTime.

34. After four sessions of that, time could start to increase. Once you get over the hurdle it could move quickly to day time visits. Weekends would be the easier time to put this on. Otherwise time after school is easy and mid-week could be included if required.

35. The parents can undertake the handover if they are able to manage. However, there were significant concerns about that at present.

36. Overnight time could occur after a further four weeks or so of daytime with a Saturday to Sunday. By that stage approximately four months would have passed. The hurdle is the beginning bit.

37. By the end of this school year with the Christmas holidays, there could be extended sleepovers however she did not contemplate a three week block of time.

38. (omitted) Public School does represent some stability for the child. If there had to be a move then (omitted) may be an option as she had been there before.

39. Dr J was given time to view the video of the interview of X by the police.

40. There were a number of issues of concern for Dr J from the video of the child’s interview with the police including her answer as to why she was there, namely to say her dad did not smoke ice with Mr S raised some concern. Also her mention of “white little small rocks I think it was ice” concerned her as to how a nine year old would be aware of this, let alone be in a position to view the substance.

41. Dr J noted that the meeting with Mr S in the car park in (omitted) did not make sense. Further, the alone time and the father needing some space was she considered strange words for a nine year old to be using and raised concerns that the father’s actions and conduct were parentifying the child.

The mother

1. The mother is now working as a (occupation omitted).

2. She at first did not accept that X was fearful of her. She was of the view that if she remembers that day at (omitted), then why does she not remember the years she has previously spent with her.

3. When challenged, she then accepted that she may be frightened of the mother.

4. She also acknowledged that it may be genuine but then said it kept getting drummed into her.

5. Her attitude in respect of her answers to the questions about the (omitted) incident was completely unrepentant during the first part of the trial. She did say that she apologised to X at the interview with the report writer. The sense I had however was that while she was sorry it had occurred, she was clear that it was not her fault.

6. Her position appeared to shift in the adjourned trial and she acknowledged that the (omitted) incident damaged her relationship with her daughter.

7. At the initial hearing, she was asked if she was prone to losing control and she responded, “Everyone can snap, it is human nature”. She acknowledged that she snapped at (omitted).

8. She acknowledged that the father loves his daughter. It was best however for her to have both parents. She went on to say that a girl needs to be with her mum.

9. She had stopped consuming marijuana in or about August 2013. She recently had one smoke she said in the month before the initial hearing with friends. She acknowledged that she had not had a urine analysis drug test undertaken at that time because she could not afford it.

10. She is paying child support which has increased because she is in full time employment.

11. She plans to marry her new partner Mr M. They do not plan to live together until the wedding.

12. The mother’s evidence and demeanour in the adjourned hearing supported a view that she had settled, was in full time employment and in stable accommodation. Her attitude appeared to have shifted from blaming others to a more child focused approach.

The law

1. The relevant legislation is contained in Part VII of the Family Law Act 1975 (“the Act”).

2. Section 60B of the Act sets out the objects of Part VII and the principles which underlie those objects. The objects are addressed in the considerations the Court must have regard to in s.60CC of the Act.

3. Section 60B(2) of the Act provides that:

   The principles underlying those objects are that (except when it is or would be contrary to a child’s best interest):

   (a)children have the right to know and be cared for by both of their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have the right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)the parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

4. Section 60CA of the Act states that:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

5. Section 60CC of the Act sets out how a Court determines what is in the child’s best interests and points to a consideration of the matters set out in sub‑ss.(2) and (3) (per s.60CC(1) of the Act).

6. Those matters will be addressed in these Reasons.

7. Should I decide that there be equal shared parental responsibility then I must, pursuant to the provisions of s.65DAA of the Act, consider whether in these circumstances this child should spend “equal time” or “substantial and significant time” with each of her parents. These considerations include whether such an order would be:

   a)in the best interests of the child; and

   b)whether the child spending equal time with each of her parents is reasonably practicable.[4]

   [4] Family Law Act 1975, ss.65DAA(1)(a) and (b).

8. I will refer to these matters later in these Reasons.

Section 60CC primary considerations

(2)(a) The benefit to the child having a meaningful relationship with both of the child’s parents

1. It is not apparent in the case of either party that there is no benefit to the child having a meaningful relationship with both of the child’s parents. 

2. They cannot however, agree on how that should be conducted. It is also conceded that the relationship between X and her mother has been damaged.

3. The parties acknowledge that this will need to be rebuilt.

4. The Full Court in McCall & Clark (2009) 41 Fam LR 483 noted[5] with approval the decision of Brown J in Mazorski & Albright (2007) 37 Fam LR 518 wherein Brown J concluded that:

   …a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one...[6]

   [5] McCall & Clark (2009) 41 Fam LR 483, 115.

   [6] Mazorski & Albright (2007) 37 Fam LR 518, 26.

5. The Full Court went on to conclude that:

   …the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the child has a meaningful relationship with both parents…[7]

   [7] McCall & Clark (2009) 41 Fam LR 483, 118.

6. That will be addressed in these Reasons.

7. In considering the best interests of X, I have had regard to the provisions of s.60CC(2A) of the Act that when applying the considerations set out in sub-s.(2), the Court is to give greater weight to the consideration set out in sub-s.(2)(b).

(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. Each party raises allegations against the other. A number of the allegations of the mother were put to the father and I have commented on that.

2. Counsel subsequently agreed that they would not raise the rule in Brown & Dunne (1893) 6 R 67 in the event of the father not putting each and every allegation to the mother.

3. The historical events of violence however have to some extent been overtaken by recent events involving X. I will therefore canvas the historical events briefly, prior to considering the recent matter of 12 November 2015 and the events that led up to it.

4. The mother’s allegations about the father’s violent behaviour include having her wrist broken and being anally penetrated by a small wine bottle in 2006. She concedes however that she did not report the incidents to the police.

5. She also alleged that she was locked into their flat when the parties were living together on the (omitted) prior to their move to Sydney.

6. The parties moved to Sydney to reside in about (omitted) 2007. They commenced residing in a property which was rented from the paternal grandparents. The mother’s evidence is that the violence continued culminating in the parties separating on 26 February 2012 when the mother following the incident had broken bones in her foot. She remained in the property until March 2012.

7. In May 2012 the mother obtained an Apprehended Violence Order (AVO) against the father for the protection of the mother and child. In July 2012 the father was sentenced to 100 hours community service after pleading guilty to assault on the mother (noting the facts were disputed although he conceded that he slapped the mother’s phone from her hand). The AVO was confirmed however the terms were varied to enable the father to spend time with the child.

8. The father, save for the conviction referred to above, denied the allegations of violence, and made counter allegations against the mother.

9. He was strongly challenged in respect of the allegations against him. He did not concede any of the points although his evidence in respect of some of the matters appeared to be deliberately vague and at times unhelpful.

1. The mother’s evidence was also problematic. She conceded that it was possible for people to snap and that she may have done this from time to time.

2. In addition, her evidence at the initial hearing in respect of the (omitted) incident where she attempted in a public forum to forcibly take her daughter with her was unrepentant and failed to acknowledge in any meaningful way the impact upon her daughter. Her attitude appeared to be that she was not responsible for the fight that occurred that day. Everyone can snap, she said, its human nature. She conceded she snapped at (omitted).

3. I note however her subsequent concession that the incident damaged her relationship with her daughter and my view of the evidence she gave at the adjourned hearing.

4. While I accept that family violence occurred, I am not comfortable in making any finding against either party. There is a strong concern that the paternal grandmother may have got it right when she says that each party may well be to blame.

5. The mother was subsequently charged in respect of the (omitted) incident on or about 24 September 2013. Bail was refused and as a result, the mother spent two months in prison.

6. The mother was sentenced on 28 November 2013 to two months’ jail from 24 September 2013 to 28 November 2013 and given an 18 month bond. She then moved to live with her sister near (omitted)/(omitted).

7. It is notable that in the course of the incident of September 2013 unravelling, X was interviewed by police, possibly a person from the Department of Family and Community Services, attended at Court, and was then involved in a disturbing incident at (omitted) in which she was the subject of a physical tug of war between the parties initiated by the mother. She then was subsequently required to change homes, and re-establish a life with her father as the mother went to reside in Queensland.

8. She has subsequently been undertaking counselling with the same counsellor as the paternal grandmother. She was also undertaking counselling at her school. She is now in the care of the Minister.

9. Regardless of what has happened in the past, this little girl has been embroiled in a series of events that she should never have had to witness, or participate in.

10. With the consent of all parties, I viewed a video contained on a flash drive of the interview that X had with the police on 23 November 2015.

11. Mr Moore for the Minister in opening indicated that they had obtained a revised USB stick which had the entire interview on it including the last three minutes whereas the one I viewed had only 27 minutes. By agreement the USB I viewed was exchanged with the new USB provided by Mr Moore.

12. A transcript was supplied of the interview, by agreement.

12 November 2015

1. There is no dispute that X was left alone with a man called Mr S on 12 November 2015 while the father, on his evidence, attended to a do a (omitted) job.

2. The father’s evidence in his affidavit filed on 26 July 2016 is that:

   a)on the evening of 11 November 2015 he went to Mr S’s house in (omitted) to pick up his trailer. He needed the trailer to do a job at night that he had secured through (employer omitted). He had cancelled the job previously and needed to complete it before the client left. He took X with him because he had no one to look after her and he knew the job would not take too long;[8]

   b)when he went to leave Mr S’s house, X asked if she could stay at Mr S’s and continue to watch the movie she had been viewing. After consulting with Mr S the father agreed;[9]

   c)he left Mr S’s at 9:00pm and returned at 11:30pm;[10]

   d)he stated in his affidavit:

   When I arrived back I knocked on the door but there was no answer. I rang his mobile phone and X’s phone and there was no answer. I threw my thongs and rocks at the windows to see if I could get their attention. I thought they had fallen asleep and could not hear the phone. I sat in the car and continued to ring the phones until 2.00am. I then fell asleep in my car and woke at about 5.00am and I jumped the fence. I went in the back door. There was no-one downstairs so I went upstairs. As I was walking up the stairs I saw my ladder underneath the manhole. I went upstairs and noticed that the main bedroom was trashed with clothes and other stuff all over the floor and that X and Mr S were nowhere to be found. [11]

   e)he states:

   I then rang the Police and they told me Mr S was in custody but would not tell me where X was and told me to ring Family and Community Services (FACS) which I did. I could not get any information because it was before 9.00am. Later that day at about 2.00pm I was told that she was fine but I was not told where she was. I was asked to go to the FACS (omitted) office, which I did. When I spoke to FACS at (omitted) I was told that X was in foster care and that if my urine test came back clean I would get her back. A few days later they asked me to do the urine test which I did. I was not informed of the results of the test and have not had X returned to me. I subsequently found out that X was in the care of my parents.[12]

   [8] Father’s affidavit filed on 26 July 2016, 4.

   [9] Ibid, 5.

   [10] Ibid, 7.

   [11] Ibid, 7.

   [12] Ibid, 8.

3. The events occurred on 12 November 2015. There is no controversy over the fact save for the father’s sworn evidence that it occurred on 11 November 2015.

4. Constable A in his affidavit filed on 15 July 2016 and through his oral evidence set out the police involvement that night. That was:

   a)police arrived at approximately 10:30pm to conduct observations in an attempt to locate the man known as Mr S and execute an arrest warrant;

   b)police approached the front door at about 11:00pm;[13]

   c)Mr S was arrested and then struggled with police when they attempted to enter the premises. He was subdued and placed in a marked caged police vehicle;

   d)police entered the house and observed X walk out of the upstairs bedroom. X told the police her name and that she had been watching “(omitted)” movie. When Constable A asked “who were you with?” she said “Mr S”;

   e)police conducted a search of the premises. The results of that search are set out in Constable A’s statement. That statement provides:

   Whilst inside the main bedroom I observed one bed, two bedsides, a tallboy, TV unit and double built in wardrobes. The bed had boxes of pizzas and numerous items of lingerie on top including a red lacy bra and black pull up stockings. There were a number of sex toys inside an open drawer of the bedsides table and red fluffy handcuffs on top of the tallboy. On top of the bedside drawer were numerous amounts of drug paraphernalia which included ice pipes, resealable bags and scales.

   Constable B located the black leather wallet and two mobile phones. The wallet contained the accused identification as well as a clear bag with a crystal substance.[14]

   f)his evidence was that he and the other police officer were at the premises until at least 1:00am. His evidence was that there was a need to conduct a thorough search of the premises. This took at least 90 minutes. He had to wait for other police to arrive including detectives who took care of X;

   g)he spoke at length to the detectives and the duty officer, Inspector C. He interviewed Mr S at 2:43am.[15] He indicated that prior to interviewing Mr S, he would have prepared for it. These matters allowed him to form the opinion that he was at the premises until 1:00am.

   [13] See Annexure A (“Statement of Police dated 16 November 2016”) of Senior Constable A's Affidavit filed on 15 July 2016, 5.

   [14] Ibid, 13.

   [15] ERISP Transcript annexed to Senior Constable A's Affidavit filed on 15 July 2016, 1.

5. The father was of course, subjected to robust cross-examination on this matter. There were a number of difficulties with his answers.

6. The father’s police statement was put to him which indicated that he went to Mr S’s place between 9:30pm and 9:45pm.[16] At paragraph 13 of the statement he states that at about midnight on 13 November 2015 he knocked on the front door of Mr S’s house and no one answered. [17]

   [16] See Exhibit J, 9.

   [17] See Exhibit J.

7. The police notes were also put to him where he had advised officer Ms G when asked what time he returned to Mr S’s place, “maybe 11:30pm”.

8. When questioned about the inconsistency his answer was that he skimmed the police statement suggesting that he did not pay that much attention to it. His answers on this issue are not credible.

9. Counsel for the father argues that the evidence of the father and Constable A concerning timing of that evening were vague using terms such as approximately and about and based on estimates of time in hindsight. Had the father returned to Mr S’s residence a little later than indicated and had police departed Mr S’s residence little earlier than guesstimated, she submits it is entirely plausible that the father and New South Wales police did not cross paths when the father returned to the colleague’s residence. I do not accept that submission.

10. The evidence of Constable A was credible and laid out a logical timeframe for the events to occur. I accept his evidence on all points where he differs from that of the father.

11. I accept that the police would not have departed the premises prior to 1:00am. I have concerns as to whether the father actually returned to the premises prior to 5:00am.

12. I note that in the police interview with Mr S, he admitted he owned the small clear resealable bag with substance believed to be ice and that it was for his personal use and that he may or may not have a problem with ice.

13. Mr S informed the police that he had no idea that X was there all by herself.

14. X was interviewed by the Juvenile Intervention Response Team on 23 November 2015. Her answers provide some contrast to that provided by the father.

15. Counsel for the Secretary draws my attention to the transcript of that interview which was admitted by consent.

16. He notes amongst other things that:

    a)when asked what she had come to talk to about she replied “I came to talk to you about the guy because he said, my dad smoked something with him but he didn’t”[18];

    b)she tells the police that “I did not really know that he had that stuff. Um… me and dad did not know that he had that stuff”;[19]

    c)When asked what she meant by “that stuff” she replied “it was white little thing rocks, I don’t know what it’s called. I think it’s ice… yeah”;[20]

    d)she later noted when asked what happened that night that “my dad just went out um, to see um, a friend cause he has not seen him for really long time. And I um, he left me there but I didn’t mind and we were watching the (omitted)”;[21]

    e)She later said “he left me cause he had a friend that he hasn’t been seeing for a very long time and I said, yeah go have… just go to speak and I will stay here so you can have some alone time. Cause I’m really, I don’t really am around my mom cause I’m really connected to my dad. I’m always around him so I never give him some space so I said, go have some space with your friend …”;[22]

    f)she also offered to the police that on occasions she and her father would meet people in the car park “Cause me and dad weren’t ready to go to the house straight away. Cause if we meet someone new with, we meet somewhere, not the actual house first. And then we see if they are nice and they are not nice”[23]

    [18] JIRT Interview Transcript of X at (omitted) JIRT, 2.

    [19] Ibid, 3.

    [20] Ibid.

    [21] Ibid.

    [22] Ibid, 4.

    [23] Ibid 14.

17. The father in his sworn affidavit provides the wrong date on which the incident occurred, namely 11 instead of 12 November 2015. It is difficult to see how a parent can forget the date that his child goes missing for the night, ends up with the Department of Family and Community Services and is subsequently removed from his care.

18. His evidence that he needed to complete a job that he had committed to through (employer omitted) is difficult to accept. There is no documentation to support his claim and his reasons for having to attend at the rate of $350 for an hour’s work to (employment omitted), do not ring true.

19. In addition, his daughter’s version as provided to the Juvenile Intervention Response Team, contrasts with that provided by him as does the information provided by Mr S to the police.

20. His evidence was that he did not ask the paternal grandmother to look after X because he thought she would get cranky with him. This matches to some extent with the paternal grandmother’s evidence that she had previously had cause to question her son about being out late after seeing the account for the tolls on Sydney roads that she and her husband paid showed that he had been out very late at night and she wanted to know who was looking after X.

21. She said however that this conversation was in respect of one incident only.

22. This contrasted with the evidence of Ms I, the officer from the Department who was at the police station the night X was taken into care. She was very clear in her evidence that the paternal grandmother had informed her that she was suspicious of the father’s behaviour. Her recollection was that the paternal grandmother had said the father had been avoiding her.

23. She was also very clear that the paternal grandmother had received toll notices relating to the father’s travel and that she was concerned at the times of night and day and distances that were outlined on the notices. It was not a one-off event and reference was made to several different freeways and her clear concern was where X was during these times. Where the evidence of the paternal grandmother and Ms I differ, I prefer the evidence of Ms I.

24. I have previously noted my concern that the paternal grandmother was protective of her son. The above example illustrates that concern.

25. In the course of his evidence, Senior Constable A noted that Mr S had CCTV cameras operating at the house with two on the front, one on the side and one at the back. He observed a screen in the spare bedroom and could clearly see the police vehicles on the screen parked outside the property. X and the father both noted the presence of the cameras.

26. He also observed a hard drive located near the screen. He was challenged on whether he had properly identified a hard drive and his response was that whilst his knowledge of CCTV was basic, he observed cables connected between the hard drive and the monitor, he did not consider it was a DVD machine, he regularly sees hard drives at work, and he considered this item to be a hard drive. I accept his evidence on this point.

27. His evidence was that when they returned to the premises to execute a further search warrant some two days later, the hard drive was no longer there. I accept the evidence of Senior Constable A.

28. The father concedes that he entered the premises after 5:00am, after the police had left. There is an issue as to what happened to the hard drive and it is noted that the father was there, prior to the police returning to the premises to undertake a further search, and the hard drive being found to be missing.

29. I also note that from exhibit M tendered by the Secretary being a New South Wales police “COPS event” that the father was stopped by the police outside Mr S’s premises on a school day at 2:30am. X was with him. The father gave the police a false name (using his brother’s identity) and on the police version X was assisting the father in deceiving the police.

30. The father’s explanation as to why he was out with X at 2:30am, being because he did not want to drive in peak hour traffic, is extraordinary and unacceptable.

31. The father’s evidence that he elected not to leave X with the paternal grandmother because “she would get cranky” on the night of 12 November 2015 suggests this is a matter the parties have discussed before.

32. This also ties in with the conversation between the paternal grandmother and Ms I and supports the conclusion that this conversation occurred about a number of incidents.

33. The events of 12 November 2015, where the child was left with a registered person, in a house which appeared to have amongst other things, illicit substances and sex toys on open display (I note the father disputes this, however I do not accept his evidence on this point) supports a conclusion that there is an unacceptable risk to the child of physical or psychological abuse or being exposed thereto whilst in the father’s care.

34. His version of the events of that night including his characterising it as an error of judgement causes me a lot of concern. It is a story that I had difficulty accepting and it is made more difficult by the inconsistencies in the father’s evidence and his complete lack of contrition when declaring either that the police or Family and Children’s Services or his daughter got it wrong, or he did not pay enough attention to the information that he was giving them and signing off on as a true and correct version of the events.

35. Little or no attempt appears to have been made by him to obtain corroborating evidence that would support on such a significant night as this, a conclusion that he had to attend a job between the hours of 9:00pm and 11:30pm and leave his daughter in the care of a work colleague (on his evidence).

36. In the circumstances, where the evidence of the father differs from that of the police or the Department of Family and Community Services officers called to give evidence, their evidence is preferred over his.

37. In addition, as set out above, there are significant concerns, even on the father’s evidence, about X being out late at night, and on one occasion, witnessing the father giving a false name to the police.

38. There are a significant number of questions in respect of the father’s care of X of which I consider he has failed to provide a satisfactory response which raise a concern of unacceptable risk for her while in his care.

1. Additional considerations are:

(a)   any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views

1. Counsel for the Independent Children's Lawyer submits that X is eleven this year however in this context of these proceedings her wishes should have limited if any weight.

2. It is notable that in her first report, Dr J notes that:

   When seen individually, X spoke about her fears about her parents fighting. She became quite tearful and distressed when expressing her fear that, because her mother and father were both in the office, they would fight again. She stated that “I remember everything that had happened in (omitted) and I did not like it”. She added “I want them to be friends. That’s it”. She returned to this theme several times.[24]

   [24] Family Report of Dr J dated 22 August 2014, 44.

3. Further Dr J notes:

   X stated that she thinks that she should stay with her father and that she feels “good” about living with him.[25]

   [25] Ibid, 46.

4. It is noted that with the assistance of the report writer, X and her mother spent some 45 minutes together.

5. In her second report Dr J noted:

   a)X stating “I love staying with my nanny, but I just want to go back to my dad”;

   b)When asked why she said it was because “he cries at night”;

   c)He cried because he told her he did when they spoke on the phone;[26]

   [26] Ibid, 52.

6. She noted the close relationship between X and her father.

7. She also noted the interaction of X with her mother which was cordial and her acceptance of the present of a watch that X was still wearing when she returned to the office a couple of hours later.

8. Dr J commented in her second report that:

   The individual interview with X suggests that she has a fixed narrative related to the (omitted) incident and the loss of her pet dog, but appears to never mention other traumatic events...[27]

   [27] Family Report of Dr J dated 6 June 2016, 64.

9. She notes that:

   a)There is no indication that they (the paternal grandparents) have done anything to foster or encourage the repair of the relationship, for example by talking positively about Ms Rainey to X;

   b)There is some evidence to suggest they have sought to undermine FACS attempt to re-establish this relationship;

   c)Mr Gibbins’ (senior) behaviour has implicitly encouraged X to see her fears of her mother as being well grounded.

   d)This also appears to be the case with Mrs Gibbins, who still has some quite strong feelings about the assault on her in 2013.[28]

   [28] Ibid, 65.

1. She notes that, “X loves her father and wants to live with him…X is clearly very aware of her father’s feelings and quite protective of him”.[29]

   [29] Ibid, 70.

2. I consider that having regard to the history of this matter, the wishes of X cannot stand apart from a context where:

   a)There are serious concerns about the father’s commitment to re-establishing the relationship between mother and daughter;

   b)There are concerns about the grandparents’ inability to help X move on;

   c)The referral of X to her grandmother’s counsellor was not seen as helpful;

   d)The father’s behaviour (as Dr J notes)[30] would suggest that he may be quite emotionally dependant on X and quite unwilling or unable to see how any of her actions have contributed to the situation whereby FACS are involved in her life;

   [30] Ibid.

   e)The child’s narrative of the events she has been a witness to between the parents appear to have altered over time in favour of the father.

(b) the nature of the relationship of the child with:

(i)    each of the child's parents; and

(ii)   other persons (including any grandparent or other relative of the child)

1. Dr J notes in her report that the mother’s relationship with X has been damaged by the events preceding the report.[31] The mother concedes this.

   [31] Family Report of Dr J dated 22 August 2014, 58.

2. X did spend time with her mother during the report process. In addition, she has weekly telephone calls with her mother which are continuing to date. I have also noted the acceptance of the watch/birthday present. In other words, the relationship between mother and daughter did not appear beyond repair.

3. Whilst the relationship appears to have been damaged and will, it appears, require some skilled assistance to rebuild it, it does not present as broken.

4. Dr J also notes that X presented as having a positive relationship with her father and noted her observations of the displays of affection between the father and the child.[32]

   [32] Ibid, 43; Family Report of Dr J dated 6 June 2016, 70.

5. In addition, Dr J noted that the child appeared to benefit from the involvement of the extended paternal family.

6. The paternal grandparents appeared to have played a significant role in the life of X. X had been living in the house rented from the paternal grandparents since 2007.

7. Post separation, the paternal grandmother has played a significant role including her current care of the child.

8. There is no dispute that X enjoys her relationship with her father. There are a number of concerns about the nature of the relationship including X being protective of the father and the parentifying of the child.

9. There are also my comments that the father’s actions at times such as the 12 November 2015 events have placed X in a position of unacceptable risk.

10. To have the father’s time restricted to two hours once a month does concern me, taking into account the reports of the relationship that exist.

11. The Independent Children’s Lawyer submits that the father’s time should be each fortnight and I accept her submissions.

12. There is little if any evidence about the maternal family, though I noted the presence of the wife’s mother and sister in the back of the Court during this trial.

(c)   the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i)    to participate in making decisions about major long-term issues in relation to the child; and

(ii)   to spend time with the child; and

(iii)     to communicate with the child

1. The Independent Children's Lawyer notes that the mother was unable to participate in these matters other than by weekly phone calls since the time with the child was stopped on September 2013.

2. She further notes that the father was not able to participate in these matters following the separation of the parties.

3. There have been moments when the parties have been able to co-operate and I note that neither suggests the exclusion of the other from the life of their daughter.

(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child

1. The father is currently on Centrelink benefits.

2. The respondent mother pays child support.

(d)   the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)    either of his or her parents; or

(ii)   any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. X appears to be settled in her relationship with her father and the paternal grandparents. Whether they could do better, particularly with helping X move on from the (omitted) incident, has been the subject of discussion in these Reasons.

2. She is currently attending (omitted) Public School and appears settled there. She is behind academically and has an education plan drawn up for her.

3. X has now been residing with her grandparents for 12 months. Save for the father’s proposal, the changes proposed by the Secretary and the mother are of a gradual nature.

4. I do not consider a return to the father is a change that can be safely promoted on the current evidence.

5. The evidence would support a conclusion that the child is happily settled at school, with supports in place around her including regular visits with the school counsellor, if required.

6. At the same time, this is the child who for the Reasons set out above, appears to have a damaged relationship with the mother. She is currently spending no time with her and I do consider that it would be in the best interests of the child for efforts to be made to try and end this period of separation.

(e)   the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

1. The parties live in (omitted) and at (omitted), which it is submitted means they are some 46km or a 38 minute drive apart. Whilst this creates some practical difficulty, it is not insurmountable.

(f)    the capacity of:

(i)    each of the child's parents; and

(ii)   any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

1. Following the conclusion of the initial hearing, I had concerns about the capacity of both parents to provide for the needs of X. Following the adjourned hearing my concerns in respect of the mother are slightly less, whilst my concerns in respect of the father have increased.

2. I accept the Independent Children’s Lawyer’s submission that there are concerns raised about the father’s capacity when consideration is given to his association with Mr S. Mr S has a previous conviction for child prostitution. The father’s evidence is that he had no knowledge of this.

3. The father was aware however that:

   a)Mr S had his children removed from his care by the Department of Family and Community Services;

   b)Domestic violence is an issue for Mr S and his partner; and

   c)Mr S was a person who “big noted” himself claiming he had been involved in a serious collision with a car and a bike and then he drove off to escape from the police.

4. The father’s evidence was that he had been to Mr S’s home at least 70 times and X would have been there 60 times.

5. There is no dispute that on 12 November 2015 he left the child in the sole company of this man for several hours.

6. In addition the Independent Children’s Lawyer points to the father’s lack of ability to prioritise the child’s needs. She notes his evidence that at the adjourned hearing the child asked to be taken to see her mother and his further evidence that he would be able to persuade her to go and see her mother. This evidence was in stark contrast to the fact that the child has spent little time with her mother since 2013.

7. It is open to the father to argue that the child for the last 12 months has been under the care of the Minister. His evidence was that he telephoned them to try and arrange something. There is no evidence however that when he did not receive a reply that he made any effort at all to follow up and instigate some time.

8. Dr J also raises concerns that the child may have been parentified. The child’s statements during the interview with the JIRT team about wanting to give her father more space and having some alone time would suggest that the child was clearly very aware of her father’s feelings about being separated from her and that she was quite protective of him.

9. There was also a note of the “clinginess” by the father with the child when he met with her for the purposes of the second family report.

10. In addition, there is evidence that this child was out driving with her father at 2:30am when pulled over by police in the vicinity of Mr S’s house. There is also evidence that the paternal grandmother has expressed concern about the father being out late at night due to her reading of the toll notices. While she has said this occurred on one occasion only, I have accepted the evidence of Ms I that the paternal grandmother definitely and clearly complained of more than one event to her.

11. I am not confident that this incident of the child being out with the father late at night or in the early hours of the morning is restricted to one event.

12. With respect to the mother, I accept the Independent Children’s Lawyer’s submission that she has now established a stable residence and stable employment.

13. I also accept that there appears to be a greater degree of emotional stability evidenced by her.

14. In addition, I accept that she is in a stable relationship with Mr M.

15. She acknowledged how drinking previously impacted upon her. Her evidence was that her drinking is now very controlled and that was corroborated by Mr M, with the concession that she may drink to excess on some isolated occasions.

16. Her evidence (when discussing her post traumatic stress disorder) that she suffers from some disturbed sleep of which amounts to no more than restlessness is accepted.

17. I accept Dr J’s assessment that there is no unacceptable risk to the child in the mother’s care.

18. The paternal grandmother and the paternal grandfather have had a difficult role to play in this matter. They must be commended for stepping in and accepting their granddaughter into their home.

19. Having said that however, I cannot exclude the fact that the paternal grandmother has taken a somewhat protective role in respect of her son’s issues.

20. I do not accept her evidence that she complained to FACS about her son being out late on only one occasion.

21. I also have concerns as to the capacity of the grandparents to enable X to have a relationship with her mother and to enable her to move on from the narrative of the (omitted) incident and the lost dog, amongst other things.

22. The paternal grandmother took steps to obtain counselling for X however having her attend upon the counsellor who assisted her following the (omitted) incident and having that counselling occur in her presence as Dr J said was not good practice.

23. I accept however that if they choose not to cooperate with the Department, then the Secretary may seek to review X’s placement with them.

24. The mother’s fiancé, Mr M gave his evidence in a proper and forthright manner. I accept the Independent Children’s Lawyer’s submission in that he was prepared to prioritise the child’s needs by absenting himself from the mother’s home whenever required to do so to assist in the restoration process. I have no difficulty with his presentation or the evidence provided.

25. All parties have at some stage during the course of their evidence in this long and protracted trial, shown that they are prepared to “cherry pick” from the evidence provided by X to various people. To assert that her wishes are accurate on the one hand and then to assert that she is lying (such as evident in respect of the night at Mr S’s) raises concern with me.

26. The mother, particularly in the initial hearing, is in a similar position, suggesting that therapy would include the child being confronted with the whole story so that she could see that she had got it wrong, and failing to take any responsibility at that stage for her part in the (omitted) incident.

27. Each party comes with their issues. I have no doubt that they all love X however I am concerned that their focus has been lost in this matter and that it needs to be redirected to the needs of X. The parents in particular have provided their child with a legacy of a relationship marked by violence and consumption of illicit substances amongst other things.

28. I note that following the conclusion of the initial hearing, the father with the support of the Independent Children’s Lawyer, proposed the parties attend a parenting after separation course. The father at the time of the adjourned hearing had just completed one.

29. Great care must be taken by all of the parties to ensure that they maintain their role as adults who are responsible for the welfare of this young girl, rather than pass the responsibility onto the shoulders of this 10 year old and abdicate their role in her well-being.

(g)   the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

1. There is no submission that the experiences of this child should be ignored. The evidence of both parties would suggest that this child grew up with parents who from time to time engaged in family violence.

2. In addition, she grew up in a household where the taking of illicit substances such as marijuana amongst other things, was the norm.

3. The parties separated on 26 February 2012 when there was a physical altercation between them.

4. In September 2013, X presented with bruising, and subsequently disclosed that her mother had caused the bruising.

5. As a consequence of that disclosure, she was taken to a police station, interviewed by a police officer, her mother was charged with assault, and an intervention order was made against the mother naming her as a protected person.

6. Subsequent to that event, she attended the Court on 24 September 2013. A significant event for a young child.

7. On the way home from Court, she was the centre of a physical fight between her father, her mother and the paternal grandmother at (omitted).

8. As a consequence of that altercation her mother spent two months in prison.

9. She has subsequently attended upon the school counsellor and Mr K, who has previously counselled the paternal grandmother in respect of the (omitted) incident.

10. The initial hearing concluded in August 2015. On 12 November 2015 X was left in the care of Mr S whilst the father attended to what he says was a job that he had contracted to do (employment omitted) between 9:00pm and 11:00pm. Mr S’s history, his accommodation, and the circumstances in which X was found have been addressed in detail elsewhere in these Reasons.

11. X, as a consequence of the father’s actions, was taken into care by the police that night and subsequently by Family and Children’s Services. Since that time, she has resided with her grandparents and has had limited contact with her father. Time with her mother has been nominal at best, save and except for the weekly telephone calls.

12. In addition, she has been interviewed by police, the JIRT team and had to undergo the process of a further family report.

13. I accept the submissions of the Independent Children's Lawyer that the child is aged 10 and still very vulnerable to being adversely affected by her parents’ poor relationship. The potential for violence between them and any drug use by either of them is there. She is also vulnerable to failure by the father to encourage a relationship with the mother.

14. It is appropriate that she receive targeted support to assist her to overcome the issues that she currently faces and in particular the issue of her relationship with her mother.

15. In addition I note she will be receiving support while she undergoes the process of family reunification.

16. The issue of aboriginality is not a matter that has relevance in these proceedings.

1. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. There are concerns in respect of both parents in these proceedings.

2. I have commented on the past failure of the mother to recognise and deal with her daughter’s perception of what happened. I note however Dr J’s comment that she has been punished for this, apologised to those concerned and taken responsibility for her actions. There is really nothing else she can do to make up for what occurred.[33]

   [33] Family Report of Dr J dated 6 June 2016, 65.

3. I have also commented on the failure of the father to assist his daughter to move on from the events and to repair her relationship with her mother.

4. There are concerns that have been canvassed in some detail about both parents and neither can escape some criticism being levied at them.

5. Children have a right to know and be cared for by both of their parents and the parents have a responsibility to put the child before any difference they may have and allow and support their child in being loved and cared for by each of them. There is a strong concern that has been lost.

(j)    any family violence involving the child or a member of the child's family

1. The allegations of family violence have been addressed to some extent when considering the risk to the child of physical or psychological abuse or being exposed thereto.

2. At some stage in the life of this relationship, both parties have obtained an intervention order against the other. I will address that further when addressing the next consideration.

3. Central to recent events however is the incident that occurred when the parties separated, and the subsequent incident that occurred at (omitted). That is not to ignore the allegations and concerns arising from the child reporting on how she sustained the bruising that was witnessed by the father just prior to the incident.

4. These matters have been addressed in detail elsewhere in these Reasons.

(k)   if a family violence order applies, or has applied, to the child or a member of the child's family - any relevant inferences that can be drawn from the order, taking into account the following:

(i)    the nature of the order;

(ii)   the circumstances in which the order was made;

(iii)  any evidence admitted in proceedings for the order;

(iv)  any findings made by the court in, or in proceedings for, the order;

(v)   any other relevant matter

1. The mother obtained a family violence order upon separating from the father. There is no evidence that that order remains in place.

2. The father obtained a family violence order against the mother, following the disclosure of the parties’ daughter as to how she sustained the bruising witnessed by the father and the paternal grandmother. There is no evidence that that order remains in place.

3. The circumstances in which both orders were obtained (the date of separation and (omitted)) have been canvassed elsewhere in these Reasons.

4. I am not provided with any further information to which I can refer in respect of those proceedings.

(l)    whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. I have formed the view that I do not consider the relationship between X and her mother capable of being taken up where it left off in September 2013.

2. The child has not seen her mother, save for the time during the report process, and the time with FACS since that date.

3. The child has also told her version of events to a number of people including professional witnesses and police.

4. The events of 12 November 2015 are significant however, even if the father’s version was accepted (which it is not) then his behaviour shows a complete lack of child focus.

1. I am concerned that having committed this “error of judgment” to use the father’s words, he has then sought to minimise his behaviour and has not provided all of the information. There are many questions that are unanswered and a number of his answers do not add up. I have therefore no confidence that the child will be safe in his care.

2. The paternal grandparents are a temporary solution. They did not seek to join the proceedings and did not seek orders in their favour. They seek to have the child returned to the father. This is not at this stage a viable option.

3. I therefore accept the submissions of the Secretary, the Independent Children’s Lawyer and the mother in that this matter requires the ongoing intervention of the Secretary, with the resources that the Department will be able to provide to assist in the transition of the child to the mother.

4. I am of the view that the best chance of this child’s relationship with her parents, and I include the father in this statement, being put back on track is by way of a rebuilding process with the assistance of a properly qualified family therapist.

Conclusion

1. X had the unfortunate luck to have parents who were engaged in a dysfunctional relationship marked with amongst other things, bouts of violence and consumption of illicit substances.

2. She has now not seen her mother in any significant way for a period of at least three years. She does continue to have telephone contact with her on a weekly basis however has not had any significant face-to-face time with the woman who was a primary caregiver for the first seven years of her life.

3. I accept there is a benefit to this child having a meaningful relationship with both of her parents.

4. I accept that her relationship with her mother needs to be rebuilt.

5. On the evidence before me however, I do not consider it appropriate to apply the presumption of equal shared parental responsibility.

6. I do not consider the parties capable of entering into genuine bona fide negotiations at this stage, amongst other things.

7. I accept the submissions of the Secretary, the Independent Children’s Lawyer and the mother that the child should transition to her mother’s care. I therefore accept their submission that the mother should, when that occurs, have sole parental responsibility.

8. I have no doubt that family violence occurred during the parties’ relationship although I make no finding as to who was responsible. The presumption of equal shared parental responsibility is then rebutted by findings of family violence.[34]

   [34] Family Law Act 1975, s.61DA(2)(b).

9. I do not share the confidence of the Secretary that the process of reunification will be completed within 12 months, particularly the progress made in the first 12 months after the child was taken into care. I accept the submissions of the Independent Children’s Lawyer and would make the time 24 months.

10. The parties at the adjournment of the hearing agreed and notations were made that the family reunification therapy was to commence and the father and paternal grandmother would cooperate in that process.

11. The Secretary seeks an order to assist in that process enabling it to suspend the father’s time.

12. I consider it appropriate for the parties to follow all reasonable recommendations of the therapist.

13. If one of these recommendations is that X cease spending time with her father for a period of time and a written copy of that recommendation is supplied to all parties, then I would consider that to be appropriate.

14. It is a difficult pathway for X, rebuilding her relationship with her mother while not inflicting any damage through the possible forced absence of the father.

15. The rate at which the child’s time with the mother may progress is no doubt slower than the mother would want.

16. She must remember however, that this is about getting a child who has not spent time with her for almost three years, to a point where she can confidently transition between her parents without having fears about how that will occur.

17. The pace is set, with the assistance of the therapist to rebuild what I view as a damaged relationship; starting with supervised time to allay any fears or perceptions the child may have after preparation has occurred with the therapist and progressing from there.

18. I have not referred to the evidence of Mr P, who was nominated at the last minute by the father as a supervisor of the mother’s time as I do not accept the father’s proposals for such orders in this matter.

19. I would therefore for the Reasons set out above make the orders set out at the commencement of this Judgment.

I certify that the preceding three hundred and thirty one (331) paragraphs are a true copy of the reasons for judgment of Judge Cole

Date: 31 January 2017