GRIGGS & MAJOR (No.2)

[2019] FCCA 2537

FEDERAL CIRCUIT COURT OF AUSTRALIA

GRIGGS & MAJOR (No.2) [2019] FCCA 2537

Catchwords:
FAMILY LAW – Parenting – Where family violence – where coercive and controlling behaviour by father – where denigration of mother – child to live with mother.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Applicant: MR GRIGGS

Respondent: MS MAJOR

File Number: DNC 345 of 2018

Judgment of: Judge Young

Hearing dates: 28 to 30 August 2019

Date of Last Submission: 30 August 2019

Delivered at: Darwin

Delivered on: 10 September 2019

REPRESENTATION

Counsel for the Applicant: Ms Gray

Solicitors for the Applicant: Grays Legal

Counsel for the Respondent: Ms Noble

Solicitors for the Respondent: Withnalls Lawyers

Counsel for the Independent Childrens Lawyer: Ms Hey

Solicitors for the Independent Childrens Lawyer: NTLAC

BY CONSENT IT IS ORDERED

1. That all previous parenting Orders be discharged.

   Parental Responsibility

2. That the mother and father have equal shared parental responsibility for the child, [X] born … 2016 (“the child”).

   Parenting arrangements

3. That, on the following days of significance, all Orders having to do with the usual live with and spend time with arrangements be suspended and the child spend time with each parent as follows:

   (a)With the mother from 8.00am on Mother’s Day until 8.00am the following day;

   (b)With the father from 8.00am on Father’s Day until 8.00am the following day;

   (c)With the mother on the mother’s birthday (…) from 2.30pm (after day care or school) until 8.45am (or before day care or school) the following day;

   (d)With the father on the father’s birthday (…) from 2.30pm (after day care or school) until 8.45am (or before day care or school) the following day;

   (e)With the parent that the child does not wake up with on the child’s birthday according to the usual arrangements, from 2.30pm (after day care or school) until 8.45am (or before day care or school) the following day

   (f)With the mother at Easter each year, from 10am Good Friday until 6.00pm Easter Monday;

   (g)With the mother over Christmas:

   (i)From 12.00pm Christmas Eve until 12.00pm Christmas Day in odd numbered years;

   (ii)From 12.00pm Christmas Day until 12.00pm on Boxing Day in even numbered years;

   (h)With the father over Christmas:

   (i)From 12.00pm Christmas Day until 12.00pm Boxing Day in even numbered years;

   (ii)From 12.00pm Christmas Eve until 12.00pm Christmas Day in odd numbered years;

   (i)With the father from 12.00pm on New Years’ Eve until 12.00pm New Years’ Day in odd numbered years;

   (j)With the mother from 12.00pm New Years’ Eve until 12.00pm New Years’ Day in even numbered years.

4. That each parent be allowed to attend any of [X]’s day care or school assemblies, parent-teacher interviews, sports days, concerts, exhibitions, recitals, fetes, competitions or matches or other day care, school or extra-curricular events that parents are ordinarily invited to.

5. That each parent be allowed to attend church services or other church-related activities with [X].

   Changeover

6. That each parent will effect changeover:

   (a)On days when the child attends day care or school: At the child’s day centre or school (whichever is relevant pending the child’s age);

   (b)On all other days if the mother lives in Suburb A: At the play equipment inside Suburb A Shopping Centre; or

   (c)On all other days if the mother moves to Suburb F: At the entrance to Coles in the Suburb F shopping centre; or

   (d)At any other public location as agreed between the parents and confirmed in a text message not less than 3 hours before the changeover is due to occur.

Communication with the child

1. That each parent is allowed to communicate with the child by FaceTime or other video communication at all reasonable times as agreed between them and, failing agreement, at 5.00pm each Tuesday and Thursday with the parent who the child is with to make the call to the other parent.

2. That each parent will allow the child to call the other parent at all reasonable times if the child requests to do so.

   Communication between the parents

3. That each parent will:

   (a)Communicate by text or email except in the event of an emergency when communication will be by telephone;

   (b)Keep each other informed of their current contact details including their residential and postal addresses, telephone numbers, email address and Skype details and will inform the other of any change to any of these details within 7 days of any change; and

   (c)Immediately advise the other parent of any medical or other emergency involving the child while she is in their respective care.

4. That each parent will tell the other parent about any specialist appointment (including who the child is to see, the time, date and location of the appointment) that is made for the child to see a professional about her health, behaviour or psychological wellbeing no less than 72 hours before the appointment is scheduled so that the other parent has the opportunity to attend the appointment.

   NOTING THAT: The parties agree that “specialist” includes any medical or allied health professional except a General Practitioner or general dental professional.

   Interstate travel & travel within the NT

5. That each parent may travel interstate or within the Northern Territory (away from the greater Darwin region) with the child, provided that:

   (a)The parent intending to travel with the child provides the other parent with no less than 14 days’ notice; and

   (b)The travelling parent provides the other parent with an itinerary, contact address and contact telephone number that the child  may be contacted on while she is travelling; and

   (c)The travelling parent will travel with the child during time that she would ordinarily spend with that parent or, in the event that the time a parent proposes to travel with the child exceeds their usual allocated time with the child, they must get consent from the other parent in writing and the other parent may request make up time with the child upon her return and make up time will be provided if it is requested.

6. That each parent is allowed to travel with [X] within the Northern Territory at any time, provided that the travel does not interrupt the time that [X] spends with the other parent, or the travelling parent has the other parent’s consent.

   Overseas travel & passport

7. That, commencing August 2021,  each parent may travel overseas with the child provided that:

   (a)The parent intending to travel with the child provides the other parent with no less than 42  days’ notice; and

   (b)The travelling parent provides the other parent with an itinerary, a copy of the return tickets, a comprehensive travel insurance policy for the child, contact address and contact telephone number that the child  may be contacted on while she is overseas; and

   (c)The travelling parent will travel with the child during time that she would ordinarily spend with that parent or, in the event that the time a parent proposes to travel with the child exceeds their usual allocated time with the child, they must get consent from the other parent in writing and the other parent may request make up time with the child upon her return and make up time will be provided if it is requested.

8. That each parent will sign all documents and do all things necessary to allow for the child’s Australian passport to be renewed as renewal falls due (between 6 months before it expires and 6 months after it expires) within 30 days of a written request from the other parent and with the costs to be shared equally between the parents.

9. That, if the either parent refuses to sign all documents and do all things necessary to allow the child to obtain or renew an Australian passport in accordance with paragraph 14 of these Orders, then these Orders provide sufficient authority for the requesting parent to obtain an Australian passport for the child without the other parent’s signature.

10. That the child’s Australian passport will be held by the mother and the mother will release the child’s passport to the father for the purposes of obtaining visas and/or travelling overseas with the child:

    (a)If the father is able to obtain an e-Visa for the child, not less than 14 days before the travel;

    (b)If the father requires the physical passport to either make the application or have the visa inserted, he will make a written request to the mother detailing the visa process and the date on which he requires the child’s passport and the mother will provide the passport on that date, provided that the request is received not less than 7 days before the passport is required and, if less than 7 days’ notice is given, the mother will provide the passport to the father within 7 days of the request.

    Medical and schooling

11. That each parent will make sure that:

    (a)[X] is given any prescription or non-prescription medication (for example, but not limited to: Ventolin or other puffers, steroid suspensions, antibiotics, Panadol or Nurofen) whenever it is necessary; and that

    (b)Whenever each parent is giving medication to [X], they are following the dosage directions on the medication packet or the script.

12. That, if [X] is prescribed medication while she is in one parent’s care and, in accordance with these Orders, she transfers to the other parent’s care before the course of medication is finished, the first parent will provide the prescription medication and dosage directions to the other parent so that the medication can be given to [X] while she is in the other parent’s care.

    NOTING THAT: It may be necessary for the father to explain the dosage directions to the mother verbally, as well as providing her with the medication packet, bottle or script with the dosage directions.

13. That each parent will attend regular (at least 6 monthly) appointments with the Asthma Foundation NT to update the child’s Asthma Action Plan and receive any necessary education about how to treat the child’s asthma as her needs change.

14. That a copy of these Orders authorises the child’s day care, school, medical practitioners and other professionals she attends upon to provide to each of the parents:

    (a)Copies of any school reports, school newsletters, school photo application forms, parent/teacher interview notices and any other information usually released to parents;

    (b)Copies of medical reports including any referrals, information regarding any medical condition suffered by the child, including treatment and any other information or material concerning the health and wellbeing of the child.

    Restraints

15. That each parent be restrained and an injunction issue restraining each of them from:

    (a)Communicating, except in relation to matters concerning the child;

    (b)Saying negative or nasty things to the child or in the child’s hearing about the other parent or that other parent’s family members, and each parent will promptly remove the child from the presence and hearing of any other person who may be doing so;

    (c)Engaging in or exposing the child to abuse (including verbal abuse) or family violence and that each parent will take all measures necessary to remove the child from an incident of family violence if such circumstances arise;

    (d)Physically disciplining the child.

    Programs

16. That, if they have not already done so, each parent will enrol in and attend:

    (a)‘For the Kids’ or an equivalent post separation parenting program; and

    (b)‘Bringing up Great Kids’, ‘Triple P’, ‘123 Magic’ or another appropriate parenting course;

    within 6 months of these Orders and each parent will provide their Certificate or other written confirmation of completion within 7 days of receiving the same.

    NOTING THAT: The parents were Ordered to complete ‘For the Kids’ on 16 October 2018 and ‘Bringing up Great Kids’ on 16 April 2019.

    ICL discharge & costs

17. That each parent pay ½ of the costs of the Independent Children’s Lawyer if assessed as able to do so by the Northern Territory Legal Aid Commission.

    Other

18. That, pursuant to section 65DA(2) and section 62B, of the Family Law Act1975 (Cth), the particulars of the obligations these orders create, 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 factsheet attached hereto and these particulars are included in these orders

THE COURT ORDERS

1. That the child is to live with the mother.

2. That the child is to spend time with the father on a fortnightly basis as follows:

   (i)Week 1: From Thursday after child care or school or from 3:00 pm to Friday before the child care or school or 9:00 am; and

   (ii)Week 2: From Friday after child care or school or from 3:00 pm to before child care or school or 9:00 am on Monday, or Tuesday if Monday falls on a Northern Territory public holiday.

3. Parties have liberty to apply in relation to form of orders within 14 days.

IT IS NOTED that publication of this judgment under the pseudonym Griggs & Major (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 345 of 2018

MR GRIGGS

Applicant

And

MS MAJOR

Respondent

REASONS FOR JUDGMENT

1. This is a parenting case about [X], a child two years and 10 months old. She is presently living with her father, and spending time with her mother, although the time with each: four nights with the father and three nights with the mother, is almost equal. The father’s position is that there ought to be a continuation of an equal time arrangement. The mother’s position is that the child should live with her and spend three nights a fortnight with the father.

2. The father is 59 years old. The mother is 24 years old. The parents met in Country D in about 2014. The mother came from the local area and is a Country D citizen. The father was a professional.  According to the father she had lived in a “traditional mud and thatch hut”. She had come to the employer looking for work and, it appears, was subsequently employed there by the father. She was about 19 at the time. She and the father began a relationship soon after.

3. The father’s background is unclear from his trial affidavit. He told the family consultant that he was originally from Country E but he had been living in Australia for some time so I infer that he is an Australian citizen or permanent resident.

4. There is no evidence of a formal marriage. The father said that he paid “…” or bride price, presumably to the mother’s family, before he began his relationship with her.

5. A police case note suggests that the mother said she was “forced” into the marriage and there was some cross-examination of the mother to establish that was untrue. I am unable to make any finding of a “forced” marriage, which was not defined by the cross-examiner, but I am satisfied that there was, and is, a significant difference in the ages, educational and other background and financial resources of the parties.  I am also satisfied that these differences have played a significant role in the dispute between the parties, particularly affecting the father’s attitude towards the mother, generally and in her role as a parent.

6. It appears the parties moved to Australia in 2016, before the child’s birth in Darwin in … 2016. They separated on 6 July 2018 in Darwin.

Credibility and family violence 

1. Credibility was an important factor in this case. Both the father and the mother have made serious allegations of family violence against each other and, in the case of the father, allegations about the mother’s mental health and, in the case of the mother, allegations about the father’s controlling behaviour, including financially controlling behaviour.

2. The parties, but principally the father, have sought the intervention of the police at various times. On 17 April 2018 the father attended on the police with the child. In his affidavit he said that on that occasion the mother had assaulted and punched him. He confirmed in cross-examination that his account was accurate.

3. In cross-examination it was put to him that his report to the police stated that the mother had “punched the child and threatened to kill her [the child]”. He denied saying that to the police. A recording of the father’s initial complaint was played in court. In the recording he is heard to tell police “… the child’s mother is not sane and she attacked the child and also threatened to kill it”. He later said, “… you don’t punch a six-month-old baby”. Later he described an argument and said “… after that she started coming at me and started punching me and I picked up [X] to protect her, she hit [X]”.

4. These allegations about the mother assaulting or punching the child have not been included in any of the father’s affidavit material. In his trial affidavit he alleged that he was assaulted by the mother on 17 April 2018 and claimed she “punched [him] several times in the head”. There is no mention of the child being punched or threatened.

5. I am satisfied that the father’s initial claims to police that the mother punched the child and threatened to kill her were false and deliberately so.

6. On 24 February 2018 there was a report to police by the father when he attended at the Suburb F police station with the child, alleging the mother kicked him and bit his hand. He presented with a laceration to the hand. The mother, when interviewed by police, alleged that she bit the father because he had his hands on or near her throat. The mother and child were then taken to accommodation provided by a women’s shelter. According to the police case note, the father later returned to the police station and said that, after speaking to his lawyer, he wanted the mother charged with assault because the mother was a risk to him, the child and herself. She was not charged on that occasion.

7. On 6 July 2018 another episode of family violence occurred. The father alleged in an affidavit filed on 17 July 2018 that while he was administering asthma medication to the child he was assaulted by the mother and that he was struck twice in the eye by a boot wielded by the mother. He said the second blow caused him to drop the child onto the floor. Annexed to the affidavit were photographs showing him with a bloodied face. He did not refer to the mother suffering any injury. An ambulance and police attended. The father and the child were taken to the Royal Darwin Hospital. The hospital notes confirm that the father suffered an abrasion to the right temperoparietal region (the side of the head above the ear). The child was examined and showed no signs of injury.

8. On the same day the father attended on Territory Families and made a report. He signed a safety plan that he would not “allow the mother to have contact with [the child] until safety plan is reviewed next week”. It is common ground that the safety plan was not reviewed nor did the father seek its review.

9. The next day, 7 July 2018, the mother presented at the Royal Darwin Hospital. According to the clinical notes she alleged the father had “hit and strangled her” the previous morning. She said she had been punched to the right side of the face and the right ear, then lifted up while being strangled. On examination she had no bruising but her neck was tender. Her ear drum had a large perforation with blood around the edges, “indicating a recent perforation” according to the notes.

10. The father also sought and obtained an interim domestic violence order about the same time. The terms of the order are illegible on the version annexed to the father’s trial affidavit but I understand that the order restrained the mother from harming either the child or the father but did not prevent contact.

1. On 17 July 2018 the father commenced proceedings seeking sole parental responsibility for the child. He sought interim orders that the child spend supervised time with the mother in a supervision centre “not exceeding two hours weekly”; a mental health assessment including but not limited to anger management issues and PTSD and that she comply with any treatment regime including medications and regular urinalysis to ensure her compliance with any medication regime.

2. By way of final orders the father sought, in addition to sole parental responsibility, orders that the child live with him and spend time with the mother every second weekend from Friday 4 pm to Sunday 5 pm and in alternative weeks, from Thursday 4:30 pm to Friday 8 am.

3. He also filed an affidavit in support on the same day, though sworn on 12 July 2018. The affidavit painted the father as the victim of sustained abuse and violence by the mother and alleged that she had attempted suicide or self-harm by taking pills. At no point did he say that he had punched, hit or harmed the mother.

4. The matter came before me urgently on 27 August 2018. After indications from the bench, the parties agreed that the child would live with the father and spend time with the mother on Monday, Wednesday and Friday between 2:30 pm and 6 pm and every Sunday from 10 am to 6 pm.

5. It transpired during cross-examination in the trial that the father had, between 6 July 2018 and 27 August 2018, agreed to the child spending time with the mother in his presence in a park or similar on between four and six occasions. This was not mentioned in his affidavit.

6. On 16 October 2018 I heard an interim application where the mother sought overnight time with the child. That was opposed by the father. An order was made for a family report but otherwise the time arrangements were unchanged.

7. On 5 March 2019 a family report was released. The family report expressed scepticism about the father’s claims, noted that the mother did not show any signs of mental illness and that she had produced a medical certificate to that effect. According to the family consultant, she observed a close and warm relationship between the child and the mother.

8. On 16 April 2019 I conducted a further interim hearing. The father again opposed the child spending overnight time with the mother. I ordered that the child spend Saturday to Tuesday, three nights, each week with the mother.

9. The result of the father’s applications and court orders to that point was that for a period of more than nine months the child did not spend overnight time with the mother. It should also be noted that this was when the child was aged between about one year and one year and nine months – a developmental stage of great importance.

10. On 30 April 2019 Judge Woodcock of the Darwin Local Court heard a charge of assault against the mother arising out of the incident on 6 July 2018. He described the father, who was the principal witness for the prosecution, as “argumentative”, “evasive” and “disingenuous”. The father denied striking the mother and asserted that her perforated eardrum was a pre-existing condition. Not surprisingly, in view of the medical evidence, this claim was rejected by the judge. The judge described the father’s presentation in the witness box as changing from that of an abused partner to an “angry, hateful (sic) person, disparaging the defendant [the mother] and in return, exaggerating and inserting things into his evidence he hadn’t previously mentioned”. The judge said “I reject his account.  It was untruthful. In light of his evidence in cross-examination, I conclude that his presentation to the police on the night in question….was an act”. His Honour accepted the mother’s account of that night. She said she was defending herself from assault by the father when she struck him.

11. I have independently arrived at a similar conclusion to Judge Woodcock. I consider that the father’s account of the incident on 6 July 2018 was substantially false and the mother’s account was truthful.

12. The mother’s affidavit recounts a series of incidents of family violence where the father was the initial aggressor. In cross-examination the mother answered clearly and without prevarication. She made appropriate concessions. Her evidence appeared objective, subject to some genuine lapses of memory. The mother was not shaken in cross-examination and, on the contrary, her calm and restrained demeanour lent an air of authenticity to her evidence. Where the evidence of the father and the mother conflicts I prefer the evidence of the mother.

13. I accept the mother’s account of assault and coercive and controlling behaviour by the father.

14. I am also satisfied that the father’s conduct from July 2018, and perhaps before, was deliberately intended to ensure that the child did not spend substantial time with the mother following separation. There are a number of reasons why I have formed this view. Primarily, there is his conduct on two occasions in making exaggerated and false complaints to the police in April and July 2018 and the claims made to Territory Families in July 2018 resulting in a “safety plan” where the child was not to be brought into contact with the mother. Further, on 9 and 11 July 2018, three and five days respectively after the incident on 6 July 2018, the father arranged for the child to spend time with the mother in a park in his presence. When the father applied to this court on 17 July 2018 he did not mention that he had arranged for the child to spend time with the mother. I am satisfied the reason for that is that it was inconsistent with his assertion that the mother was a risk to the child. The consequence of this was that the child spent very limited time with the mother until 27 August 2019 when orders were made for the child to spend regular time with the mother.

15. Another illustration of what I am satisfied is the father’s modus operandi is described in a police report of an incident at the child’s childcare centre on 8 August 2018. At that point there were no court orders made by this court. However, there was an interim domestic violence order (“DVO”) restraining the mother from causing harm to the child or the father. The DVO did not restrain contact. It appears that the mother had visited the childcare centre to see the child. This was a month after the incident on 6 July 2018. The “safety plan” had not been reviewed or extended, although, it should be noted, it was an informal arrangement and not backed by orders. The childcare centre management advised the father of the mother’s attendance and, correctly, advised him that the DVO did not prevent the mother attending at the childcare centre to see the child. According to the report, the father’s lawyer rang the centre and accused management of breaching the order. Whether such a call was made I do not know and make no finding. If such a call was made and if it was asserted there was a breach of the order that assertion was mistaken. The father then attended at the centre and demanded paperwork provided by the mother. The father was asked to leave. The centre management then telephoned the police.

16. Later that day the father attended at the Suburb F police station. The police note said:

    Father has then attended the Suburb F Police Station where he was spoken to. Father appeared angry and wanting his version of events heard which member patiently did. Father accused the childcare centre of breaching his wishes regarding his ex-wife not seeing his child, accused FACS [Territory Families] of providing personal information to the mother’s lawyer …, accused the childcare centre of breaching his DV order and also accused the mother’s lawyer of impersonating a lawyer. Father became more aggressive as member advised him of the conditions of the order and that until a family court order was put in place that the mother was entitled to have access to the child.

    Member asked male to leave the interview room due to his aggressive behaviour which resulted in member … and other members attending location.

    Member … also explained the situation with the father who continued to argue his point and whilst appeared to understand what members were saying appeared that he did not want to listen. It appeared to member that the father believe that the Police initiated DVO stopped the mother from having contact with the child which was explained to him that it did not and that only family court orders would prevent that which was not up to the Police. The father expressed his frustration at the length of time the family court was taking.

    The father then left the station and as he was leaving made statements such as that he would take the law into his own hands and that the law was an asse (sic). [Names of police officers omitted]

17. It is worth noting that if the father genuinely believed that the DVO prevented contact between the mother and the child he had encouraged a breach by permitting the child to spend time with the mother on a number of occasions after the DVO was made on 13 July 2018.

18. In my view the father’s conduct: a false report to police resulting in a DVO, a presumably false report to Territory Families and an application to this court that was materially false, was intended to ensure that his physical possession of the child was not disturbed. The giving of false evidence by the father in support of a criminal charge against the mother that was not dismissed until the hearing on 30 April 2019 shows a degree of ruthlessness in the pursuit of his objective.

19. What was missing from the father’s conduct was attention to the best interests of the child. On the contrary, I find that the father’s conduct, which resulted in a long and unnecessary separation between the mother and the child, had and, indeed, has the potential to be emotionally and psychologically harmful to the child.

20. This is underlined by the fact that the child was still breastfeeding to some degree at the time of separation on 6 July 2018, although she was apparently eating solids as well. In cross-examination the father alternately denied the child was breastfeeding or said he didn’t know. I accept the mother’s evidence that the child was still breastfeeding at that time.

21. The father was asked in cross-examination about the effect on the child of separation from the mother. He asserted that he saw no ill effects.

22. In my view, the father lacks insight into the effects of his conduct and the psychological and emotional needs of this young child.

23. The mother, when asked to say something positive about the father, said that he was very good in looking after the child’s medical needs: she suffers from asthma, and has other needs: she suffers from some mild speech delay. I accept the mother’s evidence about that. The father, on the other hand, was critical of the mother’s capacity to adequately attend to the child’s medical and other needs. The mother was asked in cross-examination what the treatment plan was for the child’s asthma and gave a clear and detailed description of the plan. I find that the mother is able to adequately attend to the child’s medical and other needs.

24. It appears that there has been some degree of rapprochement between the parties. They have apparently attended a number of events together and with the child such as fireworks displays and the like. The mother suggested she does this for “peace” and to placate the father. It seems he also provides some practical assistance to her. The mother said that there is “peace” while she does what the father wants. She said that he calls her “stupid” sometimes. The mother is to some degree isolated in Australia, without family support and with few educational or other skills to make life easier. It is not surprising perhaps that she relies on the father to some extent.

    The family report

25. A family report was prepared on 5 March 2019. The family consultant formed the view that, during her interview with him, the father sought to portray the mother as “an incompetent, untrustworthy and violent individual”. She said he “vigorously articulated his views, frequently and with apparent rancour”.

26. The family consultant said at paragraph [29]:

    Mr Griggs complained about the level of support that Ms Major received after their conflicts, such as referral to a women’s refuge and support from services such as Anglicare. He said he found it ‘strange’ that she would receive such support, given that she had allegedly assaulted him, and as the aggrieved person, the Northern Territory Government would not provide funds for him to seek emergency accommodation. Mr Griggs repeatedly complained about the level of support he believed that Ms Major was receiving, including that she had been assisted to negotiate and apply for her Permanent Residence Visa.

27. It is not necessary to repeat the detail of criticism of the mother by the father which the family consultant described as a “diatribe” by the father, and which ranged from the mother’s alleged inability to address the child’s medical needs to derision of her church.

28. The family consultant said that when he was asked about the effect of the separation between the child and the mother the father said that he did not think the child missed her mother. As the family consultant attempted to discuss this further she noted at paragraph [42]:

    … Mr Griggs obfuscated by continuing to attempt to discredit Ms Major as a parent and an individual.

29. The father opposed the child spending overnight time with the mother. The mother, on the other hand, according to the family consultant at paragraph [48]:

    … did not give the impression, nor did she state that she wanted to limit [X]’s relationship with her father, she expressed the view that [the] child needs both parents in her life, and that she would be agreeable for [X]’s living arrangements to reflect this.

30. The family consultant noted that the mother seemed confused by the father’s behaviour during the relationship. On some days he was “nice” on other days he was “bad”. The mother said that after the father began to intimidate her and, eventually, to assault her she made up in mind that if the father hurt her she would hurt him back.

31. The family consultant undertook observations of the parties and the child. She noted that the child was relaxed and calm in her father’s care and the father was “gentle, kind and attentive” to the child. The family consultant did not note any concerns arising from the observation.

32. The child was initially unsettled by her father leaving the room but soon relaxed and began to enjoy her mother’s company. The mother’s approach was one of affection, gentleness and playfulness. [X] constantly sought physical closeness to her mother and was observed climbing on her lap and cuddling into her body while the mother looked at toys and a book with her. No concerns were noted.

33. The family consultant’s evaluation was that the mother’s presentation was consistent with a victim’s experience of coercive and controlling abuse. The father, on the other hand, was disparaging of the mother on every level, portraying her as a mentally ill and incompetent individual. He was dismissive of the importance of the mother in [X]’s life, and did not believe the child missed her mother. He expressed a desire for control over [X]’s care which would enable him to move to a remote location with the child in future.

34. The family consultant’s assessment of the mother was, contrary to the father’s view, that she was an intelligent, resourceful and resilient young woman, working hard to forge a new life for herself amidst much adversity. She was employed, living independently and adapting to a new way of life.

35. The family consultant was of the view that in a case where there was high conflict and hostile, poor and controlling communication a child may need a primary base, with less time with the non-primary parent.

36. The family consultant also said that an important consideration in assessing a shared care arrangement was whether one caregiver persistently denigrated the other parent, discouraging the child’s relationship with that parent. She said such behaviour results in a child feeling deeply divided and experiencing emotional stress, particularly at changeover.

37. The family consultant was of the view, depending on the court’s findings about violence, that if the father did not demonstrate a willingness to promote the child’s relationship with the mother the court should consider granting the mother sole parental responsibility. In the result, the parties have agreed on shared parental responsibility.

38. The family consultant also recommended that if the court determined that the father is attempting to restrict the child’s relationship with the mother, then primary care be granted to the mother and the child spend regular time with the father during the day only.

39. I agree with the family consultant’s assessment of the parties and evaluation of the issues. The evidence at trial strongly supported the validity of her views. However, the parties themselves have agreed on shared parental responsibility.

40. The father’s proposal is that the child spend four nights a week with him and three nights with the mother.

41. The mother’s case outline initially proposed that she have sole parental responsibility and that the child spend regular daytime with the father, in line with the family consultant’s recommendations but in final submissions she proposed the child spend time with the father from Friday 3 p.m. to Sunday 3 p.m. and Thursday night in the other week, or three nights a fortnight.

42. The resolution of a parenting dispute under the Family Law Act (“the Act”) requires adherence to the legislative pathway set out in Part VII of the Act.

43. In determining what is in the best interests of a child the court must consider the matters in subsections (2) and (3) of section 60CC of the Act.

44. Turning to subsection 60CC(2), the primary considerations in determining the best interests of the children are:

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

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

    When applying section 60CC(2) factors, the court is to give greater weight to the consideration set out in (2)(b).

45. I am satisfied that there is benefit to the child in having a meaningful relationship with both of her parents. However, I am satisfied that the denigration of the mother by the father and his inability or refusal to properly value her role as a parent indicates that he would be likely to undermine the relationship between the child and her mother if the child were to live with him. On the other hand, if the child lives with the mother I am satisfied she will support the child’s relationship with the father.

46. I am satisfied that the father’s conduct since the separation of the parties on 6 July 2018, which resulted in a substantial separation of a breastfeeding infant from her mother for a period of about nine months without proper cause, may have caused psychological harm to the child. In my view, it constituted something akin to abuse within the meaning of subsection 60CC(2)(b) of the Act. I am satisfied that an order that the child live with the mother is necessary to protect the child from the risk of such harm in future.

47. I will now turn to the additional considerations in subsection 60CC(3).

48. In relation to (a), the children’s views, the child is too young to have expressed any views.

49. In relation to (b), the nature of the relationship of the children with their parents and any other persons, the child appears to have a close relationship with both parents. There is no evidence of the child’s relationship with any other person.

50. In relation to (c), the extent to which each of the parents has taken, or failed to take, the opportunity to participate in decision-making about major long-term issues for the children and spending time with and communicating with the children, both parents have been actively involved in the child’s life.

1. In relation to maintenance of the child under part (ca), there was no evidence about this.

2. In relation to (d), the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents or any other child or other person with whom they have been living, I propose to make an order that will see a change in the person with whom the child lives from the father to the mother. I am satisfied that it is necessary for the reasons outlined above. The child has been spending three nights a week with the mother since April 2019. I am satisfied she will make the transition without too much difficulty.

3. In relation to (e), the practical difficulty and expense of the child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents, the parents live within reasonable proximity of each other and there is no reason to think this will become an issue.

4. In relation to (f), the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs, I accept that both parents love the child and are competent to care for her, at least on a physical level. However, this criterion is very much the nub of the case. For the reasons I have described above I am satisfied that the father has limited insight into the psychological and emotional needs of the child, including her need to be protected from family violence, her need for (or right to) a close relationship with her mother and to be protected from psychological and emotional harm. The most serious aspect of this criterion is the father’s limited capacity to avoid exposing the child to ongoing parental conflict and the deleterious effect of that on the emotional and intellectual development of the child.

5. In relation to (g) the maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child the court thinks are relevant, there is nothing requiring further consideration.

6. In relation to (h), the child is not an Aboriginal or Torres Strait Islander child.

7. In relation to (i), the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents, both parents love their child but the father’s capacity as a parent suffers from the limitations described above.

8. In relation to (j), any family violence involving the child or a member of the child’s family, I accept that the mother was the victim of family violence perpetrated by the father. I accept that, at times, the mother retaliated or physically defended herself but I am satisfied that the father was the aggressor. I also accept that the father has engaged in other, less physical, “… behaviour that coerces and controls a member of the person’s family…” which also constitutes family violence as defined in s 4AB(1) of the Act.

9. In relation to (m), any other fact or circumstance that the court thinks is relevant, the father appears to have made notifications to the Northern Territory child welfare authorities but there was no evidence of any current concern.

10. Section 60CG requires the court to ensure that any order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence. There is no current family violence order. The principal allegations of family violence relate to the period when the parties were in a relationship and I am satisfied there is no current unacceptable risk of family violence to the parties or the child.

11. Given that I am satisfied there has been historical family violence the presumption of equal shared parental responsibility under section 61DA does not apply. Nevertheless, I am satisfied that it is appropriate that both parents should be involved in decisions concerning the children. In any event, the parties have themselves agreed to equal shared parental responsibility.

12. Because there will be an order for shared parental responsibility the court is required by section 65DAA to consider whether the child spending equal time or substantial and significant time with each parent is in the best interests of the child. For the reasons given above I am satisfied that it is not in the best interests of the child for there to be equal time or that the parents have the capacity to implement such an arrangement. I am satisfied that it is not reasonably practicable for the child to spend equal time with each parent.

13. I am satisfied that it is in the best interests of the child to spend substantial and significant time, as defined in subsection 65DAA(3), with the parents and this will include weekends, holidays and occasions and days of particular significance to the child and the parents.

14. I propose to make orders that the child live with the mother and spend time with the father on a fortnightly basis, in week 1, from Thursday after child care or school from 3 p.m. to Friday before child care or school and, in week 2, after child care or school from 3 p.m. Friday to before child care or school on Monday, or Tuesday if Monday is a Northern Territory public holiday. I note that neither party sought to restrict the other party travelling internationally with the child.

15. There will be liberty to apply in relation to the form of the orders.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 10 September 2019