Grover and Edens

FEDERAL CIRCUIT COURT OF AUSTRALIA

GROVER & EDENS

[2019] FCCA 1009

Catchwords:
FAMILY LAW – Parenting – child aged 3 ½ – issues in dispute the father’s time with the child and the allocation of parental responsibility – allegations of problematic alcohol use by the father and anger management and family violence issues in respect of the father – where the father minimised the concerns and made no attempt to address them in the three years the proceedings were on foot – where the child would be at unacceptable risk of harm in the father’s unsupervised care – where there is no point making an order for supervised time if there is no prospect of the time becoming unsupervised – order made for time to be as agreed between the parents although in reality this is likely to mean that no time will occur in the foreseeable future.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA

Cases cited:

Amador & Amador (2009) 43 FamLR 268

Cotton & Cotton (1983) FLC 91-330

JG & BG (1994) FLC 92-515

Applicant:

MR GROVER

Respondent:

MS EDENS

File Number:

NCC 2950 of 2015

Judgment of:

Judge Terry

Hearing dates:

18, 19 & 20 March 2019

Date of Last Submission:

20 March 2019

Delivered at:

Newcastle

Delivered on:

27 March 2019

REPRESENTATION

Counsel for the Applicant:

Mr Graham

Solicitors for the Applicant:

Peter Hamilton & Associates

Counsel for the Respondent:

Ms Smith

Solicitors for the Respondent:

Harpers Legal

Counsel for the Independent Children’s Lawyer:

Mr Gorton

Solicitors for the Independent Children’s Lawyer:

Foat Roberts Lawyers

ORDERS

The mother shall have sole parental responsibility for the child [X] born … 2015 (“the child”).
The child shall live with the mother.
The father shall spend time with the child as agreed between the mother and the father.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2950 of 2015

MR GROVER

Applicant

And

MS EDENS

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This matters involves an application for parenting orders in relation to [X], 3 ½.
The parents separated when [X] was 9 days old. The proceedings began over three years ago when she was only two months old and the proposals of each parent have changed over the course of the proceedings.
The mother’s original proposal was that [X] live with her and that she have sole parental responsibility. That has not changed but she was also proposing that the child spend time with the father on one occasion each month on condition that he attended a mental health assessment, had urine analysis testing, attended drug and alcohol counselling and completed a domestic violence course. She proposed that following the father completing those things [X] spend time with him as the court deemed appropriate.
At trial the mother’s proposal was that the child live with her, that she have sole parental responsibility and that the child spend no time with the father.
The mother alleged that the child would be at unacceptable risk of harm if she spent time with the father because of concerns about family violence and alcohol use. She submitted that given the father had done nothing to address those concerns to date despite knowing about them since proceedings commenced three years ago there was no likelihood that he would do so in the future.
The father told the family report writer in 2016 that he was seeking five nights a fortnight once the child turned three and week about when she started school.
At trial his position was different. In his case outline document he said that his proposal was that the child live with the mother. He proposed equal shared parental responsibility but the flavour of his case was that he could live with an order for sole parental responsibility if there was a consultation provision, and he sought orders for [X] to spend supervised time with him at Children’s Contact Centre for six months before moving to unsupervised time.
At the end of the trial the father’s proposal was a little different again. He proposed that after six months of supervised time at Children’s Contact Centre the time be supervised by the paternal grandmother. I infer that he still wanted unsupervised time at some point but that proposal was not really laid out for me by the father’s counsel.
The father denied the allegations of family violence and he denied that he consumed alcohol in a problematic way, in other words a way which impacted on his parenting capacity. He asked the court to have regard to the fact that his son [A], who was eight, was spending five nights per fortnight with him. He said that the fact that [A]’s mother trusted him with [A] and that [A] had come to no harm in his care was a significant factor the court needed to take into account.
In submissions the father’s counsel stressed the benefit to the child of having a meaningful relationship with each of her parents and he referred me to the 1983 decision of Cotton & Cotton in which Nygh J emphasised the importance of that.[1]
[1] Cotton & Cotton (1983) FLC 91-330
Nygh J was a well-regarded Family Court judge but the Family Law Act in 1983 was a shadow of the current Family Law Act, which perhaps explains why judges in those days were able to write short judgments.
The only requirement in 1983 was that in custody, guardianship and access proceedings the court must regard the welfare of the child as the paramount consideration and there was no list of factors which the court had to take into account in order determine the child’s welfare.
Although the court could implicitly consider risk of harm in determining the child’s best interests, it was not until 1991 that a specific provision was introduced requiring the court to have regard to the need to protect the child from harm and at that stage the only harm referred to was harm as a result of abuse, ill treatment or exposure or subjection to behaviour which psychologically harmed the child. It was not until 1995, 20 years after the Family Law Act was first enacted, that the words “family violence” were introduced into the Act.
Although there were exceptions such as Chisholm J in JG v BG[2] judges in many pre-1995 cases treated family violence as a conduct issue. They seemed to take the view that because the Family Law Act1975 had introduced the concept of no fault divorce, by analogy the court should not make decisions based on findings of fault in any other area.
[2] JG & BG (1994) FLC 92-515
In a well-known decision by Murray J, who is now deceased, she said that while she accepted that the father had been violent to the mother he had not been violent to the children so the violence was irrelevant. To be fair to Murray J, anecdotally she said later about that decision, “I hang my head in shame”.
The 1995 amendments introduced into the Act the requirement to consider family violence when determining a child’s best interests and since the 2012 amendments the court is required to prioritise the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence over the benefit to the child of having a meaningful relationship with both of its parents.
So quoting a 1983 decision is not helpful to me.
The orders proposed by the Independent Children’s Lawyer were that the child live with the mother, that the mother have sole parental responsibility for the child and that she spend time with the father as agreed between the parents.
Counsel for the Independent Children’s Lawyer submitted that because the father had not addressed the issues of family violence and alcohol use there was a high likelihood, given history, that an order for unsupervised would break down and there was no point in making an order for supervised time if there was no prospect of time becoming unsupervised in the future.
It was conceded that an order that the child spend time with the father as agreed between the parents was tantamount to making a no time order but that was the proposal of the Independent Children’s Lawyer; at would at least leave the door open a chink in case things changed.

The evidence

In the father’s case evidence was given by the father, the paternal grandmother Ms B and the father’s former partner Ms C who is the mother of [A].
An affidavit by Ms D was referred to in the father’s case outline document but I was told that it was not relied on.
In the mother’s case evidence was given by the mother and the maternal grandparents, Mr E & Ms F.
A family report was prepared by Mr G in 2016 and all of the witnesses were cross-examined.
The matter has had an unusually lengthy sojourn in the court system.
The father filed an application for parenting orders on 11 November 2015 when [X] was about two months old. Due to the child’s age, her lack of relationship with the father and the allegations of family violence and alcohol abuse, the first order, made in February 2016, was an order for supervised time.
Over the next 12 months a number of attempts were made to get supervised time happening; orders were made for supervision by the mother and her parents, by a private supervision service, and by Children’s Contact Centre. All of those attempts failed.
In May 2017 an order was made for the father to spend time with the child supervised by another private supervision service. That broke down after one visit and eventually the matter was listed for hearing in February 2018.
The matter then had an unlucky run. The February 2018 hearing dates had to be vacated because the court could not reach the matter. It was relisted for hearing in August 2018 but just before the trial was due to commence the mother’s counsel fell ill and the trial had to be adjourned. It was relisted for hearing in March 2019 and I have recently heard it.
I finally want to note that I was very appreciative of the tender bundle prepared in this matter. It is always of assistance to the court to have a tender bundle. It means that documents are put before the court in one go without the trial constantly being interrupted by tenders. Everyone is aware before the trial begins of what is going to be before the judge, although there were a few extra tenders in this case, and it is also enormously helpful to me when I come to prepare the decision because I can sit down and read through one bundle of documents.

Background

The father is 36 and the mother 32. They met online in 2013, met in person in … 2013 and commenced a relationship in … 2013.
In about mid-2015 (there was a dispute about the month but nothing turns on it) the mother moved in with the father. That was followed by difficulties and separations and there was a week’s separation in September after an argument over an iPad. The parties finally separated on … 2015 when [X] was nine days old.
[X], born on … 2015, is the parties’ only child. The father has an older child [A], who was born on … 2009 from his relationship with Ms C. The mother has a daughter [H], who was born on … 2009 – they are almost twins – from her relationship with Mr J.
[H] has always lived with the mother and she lived with the parties during their brief periods of cohabitation.
The parties both made allegations about the other in terms of what happened during the relationship.
The father alleged the mother was moody and was upset about having been in an abusive relationship with Mr J. He said that the mother was seeing a psychologist. Early in 2015 the mother discovered she was pregnant. The father said that he was surprised but on reflection agreed to keep the baby. However he said the mother became even more moody during the pregnancy and complained that her parents interfered in her life. He suggested relationship counselling and the parties attended a few sessions.
In summary the father said that there were problems in the relationship because the mother was moody and had mental health issues.
The mother said that the problems in the relationship arose from the fact that the father consumed too much alcohol, occasionally used drugs, had issues with anger and yelled and verbally abused her interspersed with apologising and treating her nicely and that on one occasion he was physically violent and damaged property. She also alleged that on one occasion he sexually assaulted her.
I will need to make findings about those issues later in the judgment but that is a summary of the allegations each party made.
Perhaps unsurprisingly the parties separated in … 2015. [X] remained with the mother and the parties had discussions about the father spending time with her.
The mother was very reluctant to leave the tiny baby with the father given her concerns about him, which I will refer to in detail later but I am satisfied had some substance, and the father commenced proceedings in November 2015 seeking orders from this court about spending time with [X].
On 8 February 2016 orders were made by consent for the father to spend time with the child at Children’s Contact Centre and pending a place becoming available, to spend time with her at McDonalds supervised by the mother and one of the maternal grandparents.
There were two or three visits at McDonalds. They did not go well. During cross-examination the father’s counsel sought to cast blame on the mother and the maternal grandparents for that. He suggested that they exceeded their boundaries in supervising time. I do not accept that but there were difficulties. The father wanted to take the child off on his own. The mother and the maternal grandparents were unhappy about that. Voices were raised and some unpleasant comments were made.
In my view the time broke down as a result of the father’s conduct and it was one of the first examples of the father being his own worst enemy in terms of the choices he made about how he behaved to others.
On 29 March 2016 orders were made for time to occur at Contact Centre 1 until Contact Centre 2 became available and a restraint was made at that stage on the father going within 250 metres of School K, the mother’s home or the mother.
The mother was cross-examined during the trial about the suggestion she made to a doctor at the time that there was an AVO in place. The mother explained that she confused the restraining order that this court made with an AVO. That was entirely credible evidence.
There were three visits supervised by Contact Centre 1. I am taking that from the document that was given to the family report writer at the commencement of his cross-examination.[3]
[3] See Exhibit “R”.
On 24 June 2016 time commenced at Contact Centre 2 but there were only a couple of visits. The records indicate that the child was unsettled during the visits but that is not terribly surprising given her age.
The father then missed two visits and Contact Centre 2 cancelled the time. The father was upset and annoyed about that and said that he had told Contact Centre 2 that he wasn’t going to be there on those two occasions and they had no right to cancel all his future visits. I will refer later to the way he spoke to staff at Contact Centre 2 but they cancelled the visits and time at Contact Centre 2 ceased.
On 8 November 2016 orders were made for time to occur supervised by Contact Centre 1 for two hours per week. A visit was supposed to occur on 26 November 2016. I am not sure if one visit occurred or no visits occurred but once again time broke down. There was a disagreement about who was going to pay for the extra time involved in having a staggered changeover. The mother, quite fairly, requested a staggered changeover given the restraining order that had been made by this court. The father did not want to pay the extra amount that this entailed.
After the arrangements with Contact Centre 1 broke down the mother made some suggestions about alternative time that could happen between then and the next court date which was not until May 2017. She said that she received no response and nothing happened.
In summary in 2016 the father saw the child on a couple of occasions at McDonalds and on a couple of occasions at Contact Centre 2 and that was about it for the entire year.
On 16 May 2017 the matter was back in court, following the release of the family report I imagine although the matter was in another docket at that stage.
An order was made for the father to spend time with the child for two hours per week with supervision provided by Family Service Centre.
There was one successful visit which [A] attended. When I say successful, success in this case is measured by the fact that the visit actually happened, but on the next occasion the father did not attend at the time that Family Service Centre were expecting him and no time occurred.
The father blamed Family Service Centre. He rang them up and became angry and hung up on them and they declined to supervise any further time.
On 6 June 2017, at which time the matter was definitely before me, I made an order suspending the father’s time.
I listed the matter for trial in February 2018 but as I have already mentioned the trial did not proceed because I had over-listed the week and could not reach it.
In May 2018 the father approached Contact Centre 2 to see if they would be willing to recommence supervised time and on 1 August 2018 when the hearing could not proceed because the mother’s counsel was not unavailable, an order was made for the child to spend supervised time with the father at Contact Centre 2 when a place became available.
However he was also required to do a hair test to test for excessive alcohol consumption by 1 November 2018 and he did not comply with that order. He did a test on 1 November, the very last day to do one, but the laboratory he went to did not test for alcohol, they tested for illicit drugs.
Two visits took place at Contact Centre 2 before the problem was discovered; one on 23 November 2018 and one on 7 December 2018, but the terms of the order meant that there were no further visits at Contact Centre 2 once it was discovered that the father had not done the correct test.
The father did two hair tests for alcohol in January 2019 but his time did not resume and when the matter came before me in March 2019 the father had again not spent time with [X] for a very considerable period.

The father’s circumstances

The father is a self-employed tradesman. He lives in a unit in Suburb L.
The father was at one time involved in legal proceedings with [A]’s mother, Ms C, but he settled that matter last year and the orders in that matter provide for the father to spend time with [A] for five nights a fortnight during school terms and for a defined period during the school holidays. The father gave evidence in his affidavit about the fact that he also cared for [A] for a block of time recently when Ms C went overseas.
The father and Ms C separated in 2013. In Ms C’s affidavit and also during cross-examination she said that she and the father currently had a good relationship and that the father also had a good relationship with her husband Mr M.
However that has not always been the case. Ms C alleged that there was family violence in her relationship with the father the details of which I will refer to later and in cross-examination she said that it was only in the last year or so that she had felt comfortable communicating with the father and had not felt intimidated by him.
The father’s relationship with Mr M has not always been good either. At one time Mr M had an Apprehended Domestic Violence Order against the father. The father did not mention anything about this history between himself and Ms C and Mr M in his affidavit.

In his affidavit the father said he could work his own hours but generally worked 45 hours a week, Monday to Friday, and he also said that he worked on an as needs basis on weekends and that he did work for something called …employer.
Ms C said that [A] told her that the father often took him to the pub when he was spending time with the father, and the father’s work apparently involves some work on various clients premises, although the father did not provide much detail about that. Ms C said that the subtext of what [A] was telling her was that the father was drinking when at the pub with [A].
The father said in his affidavit that his working hours were flexible but clearly from Ms C’s evidence he chooses to work while [A] is with him.
The father said and the paternal grandmother who gave evidence confirmed that the paternal grandmother sometimes minded [A] if the father had to work or wanted to socialise in circumstances where it was not appropriate for [A] to be with him.

The mother’s circumstances

The mother lives in rented accommodation in the Region N with [X] and [H]. [H] spends five nights a fortnight with her father Mr J. The mother said that there were no orders and that she and Mr J had a good relationship and there was nothing to contradict that.
[X] attends day care three days a week and the mother takes her to playgroup.
The mother is completing a course, and said that she would look for a placement once she finished. Currently her income is parenting payment.
The mother has an ongoing relationship with her parents who assist her with the care of [H] and [X] on occasion.

[X]’s best interests

Any orders I make about [X] must be orders determined by treating her best interest as the paramount consideration and to determine her best interests I must have regard to the matters in s. 60CC (2) and (3) of the Family Law Act.
There are primary and additional considerations and I am going to start with the additional considerations.
As I mentioned earlier, Nygh J was lucky because he didn’t have to do what I am about to have to do, which is make findings about a very large number of considerations. They just did not exist in the Act in 1983.
The first of the additional considerations is any views of the child and the weight to be given to those views.
[X] is too young to have a view about future parenting arrangements.
I must consider the nature of the relationship between the child and each of her parents and any other relevant person.
I will start with the mother because she is [X]’s primary carer and she is caring for [X] very well and [X] has a strong attachment with her. The family report writer said as follows:
There was a strong indication observed in the interactions that the children are very closely attached and bonded to their mother, and would no doubt see their mother as their primary carer, and indeed their primary attachment figure.[4]
[4] Paragraph 73 of the Family Report.
[X] and [H] also have a strong attachment.
[X] has virtually no relationship with the father at the moment. If you count it up, in the three and a-half years of her life, absent the first nine days she has seen him on only a handful of occasions for a very limited amount of time.
The father saw [X] at the family report interviews but they took place some time ago. [X] was a baby who did not know her father and not unsurprisingly, through no fault of the father’s she became unsettled and the observation had to be ended.
In November and December 2018 there were two visits at Contact Centre 2. I have had a look at the records which were tendered. [X] did not talk much on the first visit. On the second visit she was a little more vocal, although still did not talk much. She did not realise the father was her father, which is not surprising given the amount of time that he has spent with her.
The father and [X] have virtually no relationship at present and whether the father has the capacity to foster one in the future is something I will consider in a separate section of the judgment. The evidence suggests that the father can be caring with the child and if he was appropriate with her and had no anger outbursts or impatience and was not affected by alcohol there is a basis for him to form a good relationship with her but I do put those riders on it.
The father sees [A] regularly and [A] is [X]’s brother. At the moment [X] does not have a relationship with [A]. That could be fostered if the father spent time with [X]. It could also be fostered if Ms C contacted the mother but it would not occur in the same kind of way or at the same level.
The next thing I have to consider is the issue of child support.
The father is not paying child support but the mother has not applied for it. In those circumstances I cannot hold that against the father and child support is not a relevant consideration in the case.
I must consider the extent to which each parent has taken or failed to take the opportunity to spend time with the child, make decisions about the child or communicate with the child.
The father has only spent time with the child on a handful of occasions in her life apart from the first nine days and he bears considerable responsibility for the fact that the supervised time has repeatedly broken down. However dealing with that under this particular heading will not assist me. I am satisfied that on one level the father does genuinely wish to have a relationship with his daughter.
I must consider the practical difficulty and expense of a parent spending time with the child.
Both parents live in Town O or near to Town O. It is practical from that perspective for the time the father proposed to occur.
A practical difficulty could arise if supervision was required. The father said that he was confident that Contact Centre 2 would supervise for six months but even if they do there is the question of what happens after that.
There is also a concern about whether it will last given the history of the father’s problems with service providers.
There is a potential difficulty with the time, not so much as to expense as a practical difficulty.
I must consider the likely effect of any change in the child’s circumstances.
If the child resumes spending time with the father at Contact Centre 2 this will at least create the possibility of him going on to form a bond with her and if there was some prospect of the child being able to spend regular unsupervised time with the father safely and happily then a change which sees the time at Contact Centre 2 commence would be a beneficial change for the child.
However I will have to determine in the course of this judgment whether I consider that is a realistic likelihood.
One of the most important issues in this case is the capacity of each parent to provide for the needs of the child, including her emotional and intellectual needs.
I am going to deal with the mother first even though she is the respondent because there are no issues with her capacity to care for the child.
[X] is a happy, healthy little girl. The mother was asked about her alcohol consumption in cross-examination but there was no evidence that she had ever had an issue with substance abuse in the form of alcohol or in any other form.
The mother has seen a psychologist over the years but everything suggests that the mother seeks assistance when she needs it. She is not taking medication because the need for it is not perceived.
The mother to her credit has engaged with Counselling Service and done a Staying Home Leaving Violence course and a Moving Forward mentoring program for domestic violence victims. The mother is taking steps to manage her own life. She is taking very good care of [X] and there are no issues with the mother’s capacity to care for the child.
An issue which is relevant in this case is the potential impact on the child of the mother’s anxiety about her spending time with the father. The mother’s anxiety is referred to in the family report. The assessment of the family report writer was not that it would affect not the mother’s parenting capacity but that it might affect the capacity of the child to form a good relationship with the father and I am going to consider the implications of that in another context.
The father is only seeking supervised time at the moment but supervised time cannot go on forever and I have to make some assessment of the father’s capacity to care for the child if time ultimately becomes unsupervised.
The father’s case was that he was caring well for [A]. He said that there were no issues with [A]’s school attendance, feeding, clothing or hygiene and that this spoke well for his parenting capacity.
That may be so but there are two significant reasons to be concerned about the father’s parenting capacity.
Before dealing with those I will touch briefly on the issue of drugs because consumption of drugs can have a negative impact on someone’s parenting capacity for a whole host of reasons.
The mother said that the father used drugs on a few occasions in early 2014. I accept her evidence. She was a witness of credit. However there was no report of him doing it after April 2014 and there are no test results to suggest that he is currently or has in the immediate past been, using illicit drugs. I cannot find that drug use is a problem in relation to the father at the moment.
Another issue that I cannot find is a problem at the moment, but is probably more tied in with other concerns, is the father’s mental health. The mother said that he was very reactive and he could not handle stress.
The father’s issues with anger management/family violence are a significant issue in this case and it is better to deal with the mother’s concerns about him being reactive and not able to handle stress in that context rather than by me attempting to determine whether he has any mental health issues.
The issue of significant concern about the father is his alcohol consumption.
The mother made allegations about this as soon as the proceedings commenced and the family report writer mentioned in his report that the mother had raised as an issue that the father had abused alcohol to the point of intoxication.[5]
[5] Family Report paragraph 18
The father did not dispute that his alcohol consumption had been a problem in the past. One of his answers in cross-examination when he was asked about his drinking, I think in late 2013 or early 2014, was “I was drinking too much at the time”.
The mother’s evidence was that during the relationship the father drank very heavily and that this impacted on his behaviour. She alleged that when he was intoxicated he yelled and was verbally abusive.
The notes in the tender bundle from the father’s GP indicate there were concerns about the father’s alcohol consumption prior to his relationship with the mother commencing.
In a note made on 21 October 2013 there is reference to excessive alcohol daily and a recommendation that the father attend quit drinking counselling, and the father’s GP referred him to Mr P, a psychologist.
In a letter to the GP dated 4 December 2013 Mr P said that the father was using alcohol regularly and heavily. He said that he had talked to the father about possible consequences, both health and psychological, of abusing alcohol in the way he was and noted that the father was not drinking and driving but was going out most afternoons and having a few drinks.
On 21 July 2014 the GP notes refer to the father using alcohol regularly and heavily, at least five standard drinks a session; and note that his current girlfriend, (who must have been the mother) had told him to be seen or she will leave him and that CAGE questions confirmed that “this patient has an alcohol dependency problem”.
On 11 January 2016, there is a reference in the GP notes to the father drinking six drinks five days a week although interestingly there is a comment that this is not an indication of an alcohol dependency problem.
There is ample reason to be concerned about the father’s alcohol consumption. The mother raised it as an issue from the get-go and the court from the get-go made orders about the father doing some testing.
In 2017 the father was directed to do a CDT test and liver function test within 7 days. He did not do so.
Between February and June 2018 the father did three CDT tests. The first two readings were high but not high enough to indicate probable excessive alcohol consumption. The last one was 3.3 which clearly indicated probable excessive alcohol consumption.
An order was made on 1 August 2018 for the father to do hair testing by 1 November 2018. On 1 November he attended a lab and provided a hair sample but they only tested for illicit drugs.
The father said that he gave them a copy of the order. The order clearly required hair testing for alcohol.
The father said that he did not get the results until 19 December. He attached a letter from the lab confirming that he was telling the truth about that.
I have some concerns about the father’s credit around the issue of alcohol testing given his history of compliance with orders and I cannot dismiss the possibility that he deliberately delayed doing the test. It is also difficult to understand why he did not go to Counselling Service, the service mentioned in although not mandated by the orders, who definitely do hair tests for alcohol. In one document the father said that it was because there was some delay in Counselling Service being available. In the witness box he said it was because the other service, the one that did not do the test that needed to be done, was much cheaper.
In any event the father did not do the test and as a result of that and the terms of the order his time with the child at Contact Centre 2 ceased.
The father had a test done at Counselling Service on 9 January 2019. The results of that test indicated that the father was drinking alcohol at a very high level. Excessive alcohol consumption was defined on the test result as being equal to or greater than 30 pg/mg, with a comment that 30 pg/mg indicated average daily consumption of four to six drinks over a 90 day period. The father’s reading was 170 pg/mg.
On 31 January the father did a further test. His reading had come down to 137 but it was still way over the figure of 30 pg/mg which was sufficient to indicate excessive daily alcohol consumption.
In the affidavit he filed on 26 February 2019 after the second test result the father said this:
I am a social drinker and I drink regularly with friends at the pub, particularly when watching the football. I do not drink in front of [A]. When I have the care of [A] and we are at a barbeque or social occasion, I do not drink more than 2 or 3 beers.[6]
[6] Paragraph 49 of the father’s affidavit.
I am not sure why the father does not see a contradiction between the second and third sentences but anyway that was the only evidence he gave about his current alcohol consumption although he did go on to say:
On special occasions, I binge drink to get drunk. I wouldn’t do it while [A] and [X] were in my care.
The father also said this:
I do not believe that drinking to excess when I do not have the children affects my parenting capacity.[7]
[7] Paragraph 150 of the father’s affidavit.
He then commented that he was open to doing a breathalyser test before spending time with [X]. That was the extent to which the father addressed his alcohol consumption in his affidavit.
The father did not express concern in his affidavit about his hair test results either in terms of his health or his parenting capacity. In the witness box he said the results concerned him because of the possible impact his drinking might be having on his health but there was no evidence that as a result of that he had sought any professional assistance or had sought to have a health check.
The other evidence about the father’s drinking, which leaves absolutely no room for doubt that the father continues to drink heavily, is that the paternal grandmother said in the witness box that she believed the father drank too much although she said it was not her place to say anything to him about it, and Ms C said in her affidavit (remembering Ms C was the father’s witness):
I understand that there are allegations in these proceedings that Mr Grover consumes alcohol to excess. I understand Mr Grover probably does consume alcohol to excess. Since our court proceedings concluded, there have been no incidents to concern me about [A]’s safety in Mr Grover’s care. I trust Mr Grover to do the right thing when [A] is in his care.
Ms C also said in cross-examination that the father took [A] to pubs and that the subtext of it was that he consumed alcohol while he was at the pub.
Notwithstanding all of that evidence about the father’s drinking, notwithstanding the fact that it has been an issue in this case from the very beginning and notwithstanding the very high hair test results in January 2019, the father came to this Court seeking an order in which he proposed no restraint on him drinking while [X] was with him and no restraint on him taking [X] to pubs.
The father’s approach to the matter, and this became very clear in submissions, was that there was no external indicia that his drinking was getting him into trouble with the community and Ms C trusted him so the Court should not be concerned about his drinking.
The father said that he had one low-range DUI conviction in January 2015 with a reading of .059. He stressed that he had no violence convictions involving alcohol and no other DUIs. He said that he drove [A] to and from school and nobody had picked him up for drink driving. It was his case that there was no evidence that his alcohol consumption was impacting on his care of [A] and he stressed that he had said in his affidavit that if he wanted to go out and have a heavy drinking session he left [A] with his mother.
It was the father’s case that his drinking did not justify the court refusing to make orders about [X] spending time with him in the way he proposed. He even expressed surprise during cross-examination that his alcohol consumption was such a big issue. He made no proposal in his affidavit to change one iota the way he conducted his life or his drinking or his going to pubs and at one stage during cross-examination he threw up his hands and said “what do you want me to do, I will do anything you want me to do.”
The problems which will arise if the alcohol issue is not resolved are first, a risk of orders not being complied with because of the mother’s lack of trust of the father in relation to the drinking and her anxiety about [X] spending time with him and second, a risk to [X] if she is with the father when his is drinking heavily.
I want to make these points about the alcohol consumption issue.
First, there is absolutely no prospect of the father changing his level of drinking or his pattern of drinking. He was told by a GP and psychologist in 2013 that he was drinking excessively. The issue was mentioned in the family report which was prepared in 2016. The father was ordered to do tests in respect of his alcohol consumption during the course of these proceedings. He knows his alcohol consumption is an issue for others. His January 2019 hair test results did not motivate him even to get a health check. He does not see his drinking as a problem and he has no intention of making any changes.
Second, there is a risk of the father drinking excessively when [X] is with him, because he will certainly drink when she is with him. On his own admission he drinks with [A] at barbeques. On Ms C’s evidence he drinks with [A] at the pub. It is almost a given that the father is going to drink alcohol if [X] is with him unsupervised.
I cannot be certain that the father is being truthful about his current level of drinking or truthful about any assertion he might make that he is not going to become intoxicated if [X] is with him. He has some credit issues in this regard.
The family report writer said as follows in his 2016 report:
The father denies any illicit substance use, and stated that he did not drink any alcohol at all when caring for [A]. Alcohol consumption outside of this responsibility was stated to be ‘normal’, moderate levels.[8]
[8] Paragraph 44 of the Family Report.

Neither of those things are true so I cannot necessarily accept any assertions the father makes now that he will not drink if [X] is with him or that if he is with [A] or [X] he is not going to drink to excess nor can I expect the mother to accept them.
Given the father’s failure to do some of the tests he was ordered to do in a timely fashion, and given his hair test results, I have a serious concern that he may be heavily intoxicated much more frequently and to a greater extent than he admits.
To add to this, as I mentioned earlier the father did not propose in the orders he asked the court to make that there be any restraint on him consuming alcohol when [X] was with him. He only referred to being restrained from using illicit drugs.
The father may have only one DUI conviction and he may not have had any police involvement in relation to offenses in which alcohol has been an issue, but alcohol consumption is a serious issue when you have the care of a child.
It is not just a matter of whether you might get in a car and drive while drunk. Someone who is drunk or drinking heavily may well not properly supervise the child. I simply cannot understand how the father could possibly think that the mother was going to happily hand [X] over to him at the age of three and a half or four in the knowledge that he might take her to a pub.
The mother’s evidence was that when she and the father were together the father drank heavily at home and that he drank more when he was out.
There are risks for children if they are around someone who is drinking; risks that the adult is not going to be paying proper attention to them and taking proper care of them, and that concern is ramped up if the child is in the care of someone at a hotel while there are drinking.
Even though there are no external indicia of the father getting into trouble except for the one DUI, I am satisfied that his alcohol consumption seriously compromises his capacity to care for [X], and [A] but that is a matter for Ms C. I share the view the mother expressed in the witness box that Ms C’s judgment in respect of [A] spending time with the father must be questioned.
It does not appear the father has ever placed himself in the mother’s shoes and thought about how she would feel if required to hand over her extremely young daughter to someone who was likely to take her to the pub.
That problem would not arise at the contact centre and during the trial a proposal was put forward that after that there would be a period when time was supervised by the paternal grandmother. I will have to consider that later on.
The other issue for the father of course is anger management/family violence, but I am going to come to that in a moment; I will just deal with another section first.
I have to consider the child’s maturity, sex and background.
[X] is three and a half and is healthy and is doing well. There is nothing really to comment about here except that a child of that age is utterly defenceless and totally dependent on adults to look after her needs.
I must consider any family violence involving the child or a member of the child’s family.
The mother raised a concern about family violence when speaking to the family report writer and he said as follows in his report:
The mother has raised concern into the aggressive and abusive nature of the father towards her and describes many occasions of the father being drunk and verbally abusive towards her, and also describes that he pushed her on an occasion when she was pregnant and this occurred in front of one of the older children. The mother further suggests by way of examples provided in her affidavit that the father was often angry, jealous, and smashed or threw objects around, as well as threatening her, and others, with harm.[9]
[9] Paragraph 17 of the Family Report.
The mother said that the problems began soon after the parties met. She said that on occasion the father would yell obscenities at her on the phone over things like her contacting Ms C on Facebook. She said that he would hang up on her and verbally abuse her when he was drunk.
The father sent a friend of the mother’s a text message in which he called the friend “an ugly, fat, dumb bitch” and told her to fuck off. That is attached to the mother’s affidavit so the father is certainly capable of indulging in that kind of verbal abuse, and the mother gave evidence in her affidavit about the father being verbally abusive intertwined with problems with his alcohol consumption.
The mother gave evidence about an incident in … 2015 when the parties went on a trip to Melbourne. She said that the father was drinking and was aggressive and called her names. She said that he also abused a tram driver. She and the father had an argument over keys to the hotel room and she said that the father got in her face, yelled, ran off across a busy road yelling and ultimately when they got inside passed out on the lounge.
The mother gave some other evidence about the father’s behaviour when he was drinking and said that in … 2015 they broke up for a period but on … 2015, after attending an ultrasound, they agreed to attend couples’ counselling and the father agreed to see a psychologist to work on his anger.
There was another argument at the end of June. The mother said that the father called her retarded and crazy. In cross-examination the father denied calling the mother retarded but admitted calling her crazy. The mother said that he pointed a finger in her face and at the end of June broke up with her.
The parties got back together again and there was then an incident after the mother’s visit to Town Q Hospital on …. The mother gave evidence in her affidavit about what she alleged was sexual abuse on that occasion.
The mother said that on 2 September 2015 the father was physically abusive and very aggressive and verbally abusive to her and was stomping around and slamming doors. This was quite a serious incident on the mother’s description and was the incident which occurred because the father formed the view that the mother had deleted photos from his computer.
The mother said that the father took her mobile and her iPad and pushed her out of the way and his hand collided with her belly (she was heavily pregnant at the time) and accused her of stealing the files from his computer and told her to leave the room. She said that [A] was present during this event.
The mother said that she wanted her phone. She said the father yelled abuse and pushed her out of the room. She said that he smashed the phone and the tablet together and went through her photos and began deleting her photos, saying that unless she told him where the files were he would continue to delete the photos.
The mother said that the father put her phone in the microwave and threatened to turn it on. Eventually he left with [A] and the mother ran to the neighbour’s house for help and called the maternal grandfather.
The maternal grandfather and the mother’s brother came around and tried to help the mother to leave. She said that as she tried to gather up her things the father was yelling abuse and asking if it was too late for an abortion and that he threatened to bash the paternal grandfather and her brother and a few of his mates turned up.
The mother said that the father seemed to become remorseful when she was actually leaving, but that was a fairly dreadful incident on 2 September 2015.
The mother attached a text message to her affidavit in which the father appeared to make admissions about some of his behaviour on that occasion.
The mother stayed away for a week and then she went back and [X] was born on … 2015.
The mother said that after [X]’s birth the father continued to yell and that he spent most nights at the pub drinking and was angry and began demanding that the mother pay rent, and in the end, on … 2015, the mother told him that she was going to stay with her parents.
The father would not let the mother leave, he said for good reason because she wasn’t fit to drive, but the police were called and eventually the mother was able to leave and she began residing with her parents.
Family violence is defined in s. 4AB of the Family Law Act and it may be constituted by a range of actions. Physical violence is one but damaging or threatening to damage property and repeated derogatory taunts are others.
Some of the father’s behaviour as described by the mother if I accept her evidence, certainly comes within the definition of family violence. Some might be at the lower end of the scale and be an example of the father having anger management issues.
The father made a couple of admissions about calling the mother some unpleasant names but said that I should not otherwise accept her evidence.
There is only a little bit of corroboration for the mother’s allegations but as the Full Court said in Amador & Amador:
Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission. We have not been referred to any authority in support of such a proposition.[10]
[10] Amador & Amador (2009) 43 FamLR 268
For the following reasons, with one rider which I will explain, I accept the mother’s narrative about the father’s behaviour.
First, there were some issues with the father’s credit. His credit in relation to his drinking was poor. Second, he is certainly capable of being aggressive and intimidating and third, he made some admissions about some of his behaviour during the relationship. Not many but some.
It is possible that the father does not understand the nature of family violence. In his affidavit he said as follows:
I understand the mother has accused me of violence toward her. I deny that I was physically violent towards Ms Edens.[11]
[11] Father’s affidavit paragraph 126
Family violence includes much more than just physical violence; for example it includes repeated derogatory taunts.
Although there is not much corroboration for the mother’s evidence there is some. The maternal grandparents both gave evidence of observing the father being very aggressive and unpleasant. They gave evidence about him telling the mother and the maternal grandmother at McDonalds after the end of the relationship they needed to lose weight; swearing and cursing about the mother to the maternal grandmother; telling the maternal grandfather that his brother would fight him; and saying he would bring 20 people to McDonalds.
I accept their evidence and it is evidence of the fact that the father is capable of behaving violently and some corroboration of the mother’s allegation about violence and intimidation during and after the relationship.
Another reason why I prefer the mother’s evidence about the family violence issues is that the father simply failed to address in his affidavit in even the smallest way what I will call the iPad incident. He just basically ignored it. He has never complied with the order made by Judge Middleton in 2016 to file an affidavit addressing the domestic violence issues. He made some admissions in cross-examination about the iPad incident including admitting that he forcibly removed the iPad from the mother and while he denied physical violence he agreed that he pushed past her. That is referred to in the family report.
There is ample evidence in the material of the father’s capacity to easily and rapidly become aggressive and angry. Mr P refers to it in his letters to the father’s GP in 2013 and 2015. In his 2015 letter he said that one of the things he intended to start working on with the father in depth was anger management issues.
There is plenty of evidence from service providers about the father very easily becoming very aggressive. A note made by Relationships Australia after the father contacted them on 18 August 2016 reads as follows:
Mr Grover phoned about his visit the next day – 19^th August. I explained that there was no visit scheduled as he did not arrive for the visit on 22^nd July or 5^th August and had not phoned the service to explain his absence. He then became very aggressive – insisting that he had sent emails and we were at fault for not emailing him – we had phoned him several times and left messages. He hung up after angrily saying “you are a public servant and I am the public – I will make a complaint – give me the name of the person to complain to”. I provided him with the Managers name and email.[12]
[12] Page 48 of Exhibit “E”.
There is a note made by Counselling Service mentioning that they had received aggressive angry calls from the father.
Family Service Centre ceased to provide supervision after the father had an argument with them on the phone and then hung up on them.
There is plenty of evidence of the father being angry with other people and that again inclines me to accept the mother’s evidence about what happened to her during the relationship.
There is also of course Ms C’s evidence.
There is reference in the police records to a couple of particular incidents of violence involving the father and Ms C. On one occasion it was alleged that the father dragged Ms C’s mother. On another occasion he gained entry to Ms C’s house and took the fuses out of the fuse box and he brought three people and a dog which was very intimidating to Ms C and other people in the house.
Ms C said in cross-examination that each of those things had occurred.
The father denied that each of those things had occurred. I do not accept his denials. Ms C’s evidence is consistent with the police records made at the time and I prefer her evidence that those things occurred to the father’s denials that they did.
The mother did not report much violence during the relationship to police or any authorities. That is extremely common in relationships involving family violence. She went back repeatedly to the father. She did not want to lose the relationship. She sent him loving messages on occasions. All those things are entirely consistent with someone being in a violent relationship and certainly not inconsistent with it and a note in the tender bundle from Psychology Clinic is particularly relevant to this issue.
It is a note dated 1 July 2015 prepared by Ms R, a psychologist, and it says as follows:
Ms Edens attended today, her affect low. She had made the decision to try to make it work with her partner yet he had been verbally and emotionally aggressive towards her. She advised that she had been staying with him more often and that he was trying to actively change and make it work since she had been assertive with him about her needs. She was pleased that he was trying however since our last session she reports his inconsistent and abusive behaviours had been very stressful for her to continue to try to manage. I reiterated the importance of safety particularly in regards to herself and her daughter. She reports a good support network in her family whom she had recently called on to pick her up from his house when things became heated. I provided contact details for DV support centres and encouraged her to access her supports from her parents.[13]
[13] Page 27 of Exhibit “E”.
The fact that the mother did not report most of the incidents, the fact that she kept going back to the relationship and the fact that there were occasions when she sent the father loving notes does not mean that there was not violence in this relationship and I am satisfied that the mother’s allegations should be accepted.
I am satisfied that during the relationship the father did become angry, that he yelled at the mother and that he called her vile names such as bitch, slut and whore. I accept that the mother was frightened of him on occasions. I accept the mother’s version of events about the iPad incident and I accept the mother’s and her parent’s version of events about the father behaving in an intimidating fashion during the McDonald’s visits.
However in relation to the allegation of sexual assault it would be unsafe for me to make a finding that what happened on that occasion constituted a sexual assault. There could be an element of reconstruction in that. I accept the mother’s evidence that the event occurred in a broad general sense. I accept that it was extremely upsetting for her and I accept that it remains a source of upset for her but I cannot find that there was family violence on that occasion in terms of a sexual assault or rape. It would be unsafe for me to do so.
Subject to that I am satisfied that the mother’s allegations should be accepted.
The family report writer was satisfied that the mother was genuinely frightened of the father and the behaviour she experienced explains why she would be.
The family report writer referred to that issue on a couple of occasions on his report. He said this:
A factor that may impinge on the father’s ability to parent was identified as his blunt assertive nature. While the father was quite pleasant during the assessment with the report writer, there appeared to be some evidence suggesting recurring communication issues surrounding the father. The likelihood that he would be disrespectful and intimidating toward the mother on an ongoing basis cannot be discounted.[14]
[14] Family Report paragraph 58
Given the father’s denials, his failure to accept responsibility and his quite regular flaring up with service providers that opinion should be given weight.
It is also relevant that there was violence in the father’s relationship with Ms C. There was the violence described in the police reports, which Ms C confirmed occurred, but the mother also made some allegations about the father’s behaviour to Ms C. She said that while she and the father were together his behaviour in regard to Ms C was volatile, one minute arguing with her, going to her workplace and abusing staff and the next minute helping her around the house or taking [A] to shows.
She said that the father threatened that he was going to smash Ms C’s car windows and slash her tyres and tell police she had stolen money from him and said he would love to wrap her hands around her neck and see the fear in her eyes.
I have no reason to believe the mother is making things up and I accept her evidence.
The father’s volatility in his relationship with Ms C, one minute being nice and loving and the next minute being extremely abusive and threatening and intimidating, is similar to the pattern that happened in his relationship with the mother and it raises a considerable concern about what might happen in the father’s future domestic relationships.
I must consider whether there are any family violence orders and if so the inferences that can be drawn from them.
No family violence orders have been made in this matter. The mother has been to the police on a few occasions, but no application has ever been made for an ADVO.
I must consider the attitude of the parties to the child and the responsibilities of parenthood.
That consideration as a separate one does not assist me.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
That is definitely preferable given the length of time this matter has been in the Court system.
I am satisfied that there is substance in the mother’s concern about the father’s drinking and about his capacity to be verbally abusive, angry and up and down in the way he behaves to people and to be sometimes violent and intimidating, and the family report writer said this in his report:
The mother’s anxiety and fear regarding the father and regarding the father spending time with the child are noted to be very high and could, indeed, conversely have an impact on the child should the Court order such time with the father.[15]
[15] Family Report paragraph 85
Nothing has happened since the report was prepared in 2016 which would have made the mother feel any more comfortable about or less afraid of the father.

I am satisfied that her anxiety and her fear for her child if she spends time with the father, particularly unsupervised time, is likely to continue.
The family report writer expressed the opinion that if the mother’s anxiety was transmitted to the child, the child might display reluctance about spending time with the father. The mother’s anxiety could also result however in the mother being reluctant to comply with orders and being hyper vigilant about possible breaches of the orders.
In circumstances where the father has done nothing about his problems an order for unsupervised time carries with it a high risk that there will be problems with compliance, either because the child becomes reluctant to go or because the mother sees problems and either does not send the child or brings the matter back to court.
I must consider any other relevant matter.
There was disagreement between the parties for a very long time about the child’s name.
The mother called the child [X] from the beginning and she explained in her affidavit why she chose that name; the child was born with jet black hair. The father would not permit the child’s birth to be registered with that name. He wanted the child called [X].
There was also a dispute about the surname and the parents took some 18 months or so to resolve that and the child’s birth could not be registered until it was resolved.
Another relevant matter is that it was suggested at the end of the hearing that the paternal grandmother could be a potential supervisor of the child’s time with the father.
It was however a very inchoate suggestion. It was not fleshed out in terms of how long it was proposed that the paternal grandmother supervise or what amount of time it was proposed should happen if she was supervising and whether it was to be a full weekend or a full day or just a little bit of time.
There was no suggestion about whether it was to be close supervision or loose supervision. It was almost an on the fly suggestion which the father adopted without a great deal of enthusiasm as a result of the way the evidence played out.
The mother does not trust the paternal grandmother and that creates a concern about how successful such an arrangement would be.
I do not know anything adverse about the paternal grandmother. She has been a foster carer so obviously the Department has considered that she is a suitable person to look after children but it is a complete unknown to me whether she has either the capacity or the willingness to do anything in relation to her son if problems arose.
The paternal grandmother said in the witness box that she knew that he drank too much but it was not her place to say anything. She said that she knew both her sons drank too much; I think she was referring to the foster child [S] who grew up with the father.
I have some considerable concern about the proposal in the form that it was put due to the fact that the mother is anxious about the paternal grandmother and her capacity to protect her young daughter and the grandmother’s capacity to do that is unclear. That is going to be an issue for me if the only time I can order is supervised time.
I then come to the primary considerations.
The first of those is the benefit to the child of having a meaningful relationship with both of her parents. The father hung his hat on that and it is an important consideration because it is a loss to a child not to have a relationship with one of her parents, a parent she may look like, a parent she may sound like when she talks, a parent she might share interests with. A child who cannot have a relationship with of her parents misses out.
However I have to consider the child’s safety and I am satisfied that the barriers the mother has put in the way of the father spending time with the child have arisen out of her concerns for the child’s safety.
The reason the father has seen his daughter so little over the last three years is because of his own actions. Over and over again attempts were made to get supervised time of the ground. On every occasion it broke down due to problems caused by the father. He failed to attend at Contact Centre 2 and they cancelled his time. He had an argument with Ms T from Contact Centre 1 and told her not to contact him again so that time did not happen. He failed to attend his second Family Service Centre visit and then had an argument with Family Service Centre which resulted in them refusing to provide a service. He had two visits at Contact Centre 2 recently and that stopped because he did not comply with the hair testing order.
The father has had many opportunities and on every single occasion they came to nothing because of him. None of those breakdowns were caused by the mother. There was one occasion when she did not want Ms T or some employee of Ms T to supervise but that was easily resolved. The father is responsible for these breakdowns. On every single occasion he had some excuse about it but on every single occasion it was because of his actions.
As a result the mother reached the point of proposing no time and she continues to do so.
I am satisfied that the only reason that the mother is opposing the child spending time with the father is because of safety concerns. [H] spends time with her father. I have to decide whether it is safe for [X] to spend time with hers.
S.60CC(2A) says that the second primary consideration takes priority over the benefit to the child of having a meaningful relationship with both of her parents and the second primary consideration is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
There are two problems for the father, or perhaps three but I will call it two and put anger management at one end of the spectrum with behaviour which comes within the definition of family violence at the other end. The other problem is the father’s alcohol abuse.
Either of those problems could result in [X] being at unacceptable risk of harm in the father’s care. I have already explained why in my view the father’s alcohol consumption has that potential. Given my findings about family violence there is a considerable risk that the father may behave violently in future relationships. He has in two in close succession to each other. He does not accept that he has a problem.
The father has known throughout these proceedings that his anger is an issue. He knew that when he spoke to Mr P around the time that he met the mother and he has done nothing about it. He said in his affidavit that he had recently signed up for a men’s change program. It is unclear what that involves and I cannot have any great confidence the father is going to complete it. He certainly did not include it in his orders as something he needed to do.
There is no prospect of the father doing anything about his alcohol use at the moment.
In my view [X] would be at unacceptable risk of harm if she spent unsupervised time with the father.

The recommendations in the family report

The family report writer, and this was back when the parents had been separated for less than or about a year, said that [X] needed to have ongoing frequent and short contact time with her father if she was to become familiar and bonded with him with the hopes of potentially developing an ongoing and enduring bond of quality.
He said however that this would only be of benefit to the child if a certain degree of safety and reassurance for both the court and the mother was possible.
The family report writer mentioned certain things the father should do to provide that reassurance such as being abstinent from illicit drugs (which I have found is not currently a problem) and sober from alcohol and he said this:
It is finally recommended that the child when of school age and assuming that there are no interventions by FACS or New South Wales Police regarding the father or child, or any psychological concerns of the child, shall spend unsupervised time with the father for four hours every Sunday from 10 till 4, increasing to overnight stays when the child is seven from every alternate Saturday from 5 pm to Sunday at 10 am or as agreed between the parties.[16]
[16] Family Report paragraph 97
He recommended that there also be some time during the holidays and special occasions.
I mention that recommendation only because it is for an unusually limited amount of time compared to what is often recommended in reports when there are no risk of harm issues.
That kind of time that might have been appropriate if the father had taken steps after the report was released to deal with his issues and had successfully commenced supervised time after the report was released but neither of those things happened.

Parental Responsibility

The presumption in s.61DA of the Family Law Act 1975 about the parents having equal shared parental responsibility does not apply because I am satisfied that there has been family violence.
I can still make an order for equal shared parental responsibility but in this particular case I could not consider doing it.
These parents have had no productive communication for years. The mother’s evidence and the evidence of the father’s intermittent involvement with service providers suggests that the father is impulsively aggressive when communicating with others. The parties could not agree on a name for this child without court intervention and that took a bit of effort as well.
These parents are not people who can share parental responsibility for the child in a way which is productive for the child and the only appropriate order I can make is for the mother to have sole parental responsibility for the child.
Sometimes when a Court makes an order for sole parental responsibility it also makes an order that before a party makes a decision they have to contact the other party, tell them what decision needs to be made, seek their input, take it into account and then make the decision. The father suggested that if I made an order for sole parental responsibility in this case I should make that kind of consultation order.
I am not going to do it because the same problems are going to beset that as would beset any attempt by these parties to reach agreement about this child.
To put the best possible spin on it the father seems disorganised. He blames others and becomes quite aggressive when things go wrong. It is always someone else’s fault, even in relation to him not doing the hair testing.
The mother is somewhat frightened of the father and feels intimidated by him. It would not be in [X]’s best interest for me to make the consultation provision any more than it would be in her best interests for me to make an order for equal shared parental responsibility.

Conclusion

The father wants time with [X] and he is certainly capable of cuddling and looking after her in the right circumstances. There is a photo in his material of him nursing baby [X] with [A] next to him and leaving the side the caption which says “Here is me being violent to my daughter” it is a pretty little picture.
It shows the father cuddling a sleeping or quiet baby and the observations at the family report interviews and the two recent visits at Contact Centre 2 suggest that there are positive aspects to the father's parenting and that if he chooses to be and is not under the influence of alcohol he can be gentle. He can be positive with the [X]. He enjoyed reading stories to her at Contact Centre 2.
However as a result of the father's inability to deal with service providers he has at best an embryonic relationship with [X]. He wants me to give him another chance and he pledged that if I made an order which allowed him to spend time with [X] at Contact Centre 2, this time he would keep it going and he would build a relationship with her so that we could slowly move to unsupervised time on weekends and during school holidays, although he said that he was also prepared to have some time supervised by the paternal grandmother if the court considered that necessary.
However that will only work if the father is able to keep it together and keep attending Contact Centre 2 and given the number of occasions on which supervised time has fallen over due to his actions I have reservations about whether he will be able to do that.
If that were the only problem however I might be inclined to take a chance and say, well, we will give it one more go, because when the family report writer was cross-examined he said that he did not think it would be psychologically harmful to [X] if the time started and then fell over again.
If that were the only problem it would be worth giving the father another chance because it is a serious loss to a child if they cannot have a relationship with one of their parents.
However it is not the only problem. The father chose to come to court having done nothing about the two issues which have been significant in this case from the beginning, the alcohol consumption issue and the anger management / family violence issue.
He chose to do nothing about the alcohol issue even though doctors expressed a concern about his drinking five years ago, his mother thinks he drinks too much, he had a high CDT reading in 2018 and he had two extremely high hair test results in 2019 and even though the family report highlighted that the mother was anxious about [X] spending time with him and he must have realised that merely telling the mother that Ms C trusted him was not likely to prove very convincing.
Even in the orders the father proposed that I make he offered no comfort to the mother. His attitude basically seemed to be that the mother just had to accept him as he was, drinking and all.
[X] is three and a half years old. If the father did six months of supervised time at Contact Centre 2 she would only be four when unsupervised time commenced as the father proposed in his orders at the commencement of the trial. I could not ask the mother to allow [X] to spend unsupervised time with the father if the alcohol issue was unresolved.
The other concern of course is the father's aggression and impatience at the lower end of the scale and perpetration of family violence at the upper end, and there is a considerable risk of family violence occurring in future relationships. It has already occurred in two in close succession. It is extremely damaging for children to be exposed to someone perpetrating family violence.
The father has never let children's presence deter him from expressing his anger or from being violent. He has only very recently enrolled in a course and he is yet to commence it. I have no information about its content and I cannot have any particular confidence that the father is going to complete it.
The mother is highly anxious about the child spending time with the father. That is likely to make her hyper vigilant. There is a considerable risk that her anxiety will be transmitted to the child and a risk of the orders breaking down if I make an order for unsupervised time.
I could certainly order supervision at Contact Centre 2 but where do we go from there? Because Contact Centre 2 do not supervise indefinitely, and professional supervision is just not viable in the longer term and supervision by the paternal grandmother is not an option.
The mother does not trust her. There was no evidence she would prioritise [X]'s issues over her son's. The proposal about her supervising was inchoate and an added difficulty is that [X] has no relationship with her. It is a situation that might work if the mother had a good relationship with the paternal grandmother and could take the child there and make sure the child was comfortable with the paternal grandmother before the time commenced but they do not have that relationship.
[X] does not know her paternal grandmother and there is a considerable risk that she would not be comfortable and happy with that sort of supervision even if I considered it suitable, and then the time with the father probably would not work either.
It is highly regrettable if a child does not have a relationship with a parent. I am continually faced with the need to make a decision which will mean that there cannot be such a relationship and it never makes me happy to do it.
[X] needs on some level to know about her father, to see photos of him, to know something about him and to know that there are aspects of him that she should value, such as his skills as a tradesman. She needs to know that he has not abandoned her. Steps need to be taken to make sure [X] knows something about the father but I do not have a solution to the problem of how I can be sure that she will be safe if she does spends time with him and how I can make an order which is not going to break down.
Problems with alcohol are always very difficult to deal with. I had a case in 2018 involving an alcoholic father. His children had been exposed to considerable risk of harm as a result. The mother in that case though was quite willing to continue to deal with him. She purchased a breathalyser and she was willing to administer it and to make sure that the father did not have an excessive reading at the beginning of the time and she was very positive about the father spending time with the children. She proposed a set of orders about that and I was able to make orders about that father spending some time with the children but I do not have a solution in this case.
I cannot ask this mother to breathalyse the father, not with the family violence issues. I cannot make an order for long-term professionally supervised time. I cannot make an order for the paternal grandmother to take over and supervise. I cannot see a time when it is going to be appropriate for this little girl to spend unsupervised time with the father and in those circumstances there is usually no point in making an order for supervised time.
I cannot make orders which will allow this child to spend time with the father at the moment. The court does not always have a solution and I do not have a solution in this case.
The Independent Children's Lawyer suggested that an order be made that the time be as agreed by the mother. That is highly likely in the immediate future to mean no time but it does keep the door open just a chink.
If the father is able to take on board the issues which have been squarely identified and do something about them then it might be that things can change in the future.
It might be the father never spends extensive time with the child but this might allow the child to attend special events. If the paternal grandmother was to contact the mother and try to mend some bridges with her something might happen there by agreement. If [X] got to know her paternal grandmother there is some potential for time. It is not much potential but I agree that it is better to do that in this case than make a complete no time order.
The father’s GP, his psychologist Mr P, the family report writer, the mother and Ms C (although she is willing to look past things at the moment) all see the problems but not the father. If he chooses to face his problems, perhaps things can change in the future but I cannot work a miracle.
I am conscious of the fact that it is likely that as a result [X] is not going to have much relationship with her brother [A]. That is sad. If Ms C contacts the mother then perhaps some time can happen. Ms C did not rule that out in her affidavit.

I certify that the preceding two hundred and eighty nine (289) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 24 April 2019

[2019] FCCA 1009

27 March 2019

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Procedural Fairness

Duty of Care