Hanley and Aish and Anor
[2015] FCCA 514
•30 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HANLEY & AISH & ANOR | [2015] FCCA 514 |
| Catchwords: FAMILY LAW – Children – child’s best interests – child had no time with father since October 2013 – subpoena must serve a relevant forensic purpose – procedural fairness – meaningful relationship – family violence – child’s views – father’s lack of insight – sole parental responsibility – no order to spend time. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 69ZN |
| A & A and Ors [2005] FamCA 561 Runcorne & Raine [2008] FamCA 837 Sproat & Brimm [2013] FCCA 1823 |
| Applicant: | MS HANLEY |
| First Respondent: | MR AISH |
| Second Respondent: | MS PAINE |
| File Number: | LNC 191 of 2011 |
| Judgment of: | Judge Roberts |
| Hearing dates: | 11 & 12 February 2015 |
| Date of Last Submission: | 12 February 2015 |
| Delivered at: | Burnie |
| Delivered on: | 30 March 2015 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondent: | Mr J Petersen |
| Solicitors for the Respondent: | McGrath & Co |
The Second Respondent appeared in person
| Counsel for the Independent Child’s Lawyer: | Mr P McVeity |
| Solicitors for the Independent Child’s Lawyer: | McVeity & Associates |
ORDERS
That the Orders made by this Court on 30 April 2009 are discharged.
That MS HANLEY (“the mother”) have sole parental responsibility for [X] born [omitted] 2001 (“the child”).
That the child live with the mother.
That the child spend such time with MS PAINE (“the maternal grandmother”) as may be agreed between the mother and the maternal grandmother from time to time.
That there be no Order requiring the child to spend any time with MR AISH (“the father”) or to communicate with him.
That all extant applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Hanley & Aish & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT BURNIE |
LNC 191 of 2011
| MS HANLEY |
Applicant
And
| MR AISH |
First Respondent
| MS PAINE |
Second Respondent
REASONS FOR JUDGMENT
The dispute in this matter is about [X], who is 13 years old (“the child”). The Applicant is her mother, MS HANLEY (“the mother”) and the First Respondent is her father, MR AISH (“the father”). The child’s maternal grandmother, MS PAINE (“the grandmother”) is the Second Respondent but she was treated as a joint applicant during the hearing because she is seeking the same orders as the mother.
There have been earlier proceedings in relation to this child, which were resolved when orders were made with the consent of the grandmother, the father and the mother on 30 April 2009 (“the consent orders”). In those earlier proceedings, the grandmother was the applicant and the mother and the father were respondents. The consent orders of 30 April 2009 provided for the grandmother, the mother and the father to have equal shared parental responsibility for the child and for the child to live with the father each alternate weekend, for one night during the intervening week and during school holidays.[1] There was a similar order made in favour of the mother,[2] and an order that the child would live with the grandmother at all other times.[3]
[1] Order No. 5
[2] Order No. 6
[3] Order No. 7
The father filed a Contravention application on 10 October 2012 (the first Contravention application”), alleging that the mother had contravened the consent orders on a number of occasions in September and October 2012. That application was dismissed when the father filed a Notice of Discontinuance on 22 October 2014. However, he had effectively “replaced” the first Contravention application with the two Contravention applications referred to in paragraph 6 below.
On 1 March 2013 the mother filed an Application seeking to have the consent orders discharged and that:
·she have sole parental responsibility for the child;
·child live with her; and
·the father’s time with the child be reserved.
The father filed a Response on 2 August 2013 in which he sought orders that:
·he and the mother have equal shared parental responsibility for the child;
·the child live with him and the mother “on an equal basis, to be further particularised prior to trial”; and
·the child spend time with him, the mother and the grandmother during school holidays and on special occasions “as shall be particularised prior to trial”.
The father filed two further Contravention applications on 16 October 2014 alleging that there had been numerous contraventions of the consent orders without any reasonable excuse by both the mother and the grandmother. I dismissed those Contravention applications on 10 February 2015.
When the parties’ competing applications for parenting orders came on for hearing on 11 February 2015 the mother’s position had not changed and she was supported in that by the grandmother. The father’s position was essentially that:
·he and the mother should have equal shared parental responsibility for the child;
·the child should live with the mother; and
·the child should spend specified periods of time with him, with such to occur after therapeutic counselling for both himself and the child with a psychologist to be agreed (or if there was no such agreement, with his own treating psychologist).
The Independent Child’s Lawyer (“the ICL”) supported the mother’s case.
The evidence
A Family Report was completed by Senior Family Consultant D (“the Family Consultant”) on 30 October 2013 and was released on 1 November 2013 (“the Family Report”). In accordance with my usual practice, the Family Consultant was the first person to give oral evidence at the hearing.
I have said elsewhere that I agree with what my brother Judge Scarlett said about Family Reports in Sproat & Brimm:[4]
There is no magic in a Family Report or a Court Expert Report, but such a report is usually a most useful resource for a Court making parenting orders. It is the judge who must decide, having considered all the evidence (Hall & Hall[5]).
[4] Sproat & Brimm [2013] FCCA 1823 at paragraph 107
[5] Hall & Hall (1979) 5 Fam LR 609; FLC 90-713
However, a Family Report is very often the only independent evidence that is available to the Court and that is why it is “a most useful resource for a Court making parenting orders”. In this matter, I will say from the outset that I accept that the Family Consultant is well qualified and I find her observations and opinions to be valid.
The mother relied upon two affidavits, filed 1 March 2013 and 27 January 2015. I will simply refer to those as her first or her second affidavit. The mother also gave oral evidence.
The grandmother relied upon two affidavits, also filed on those dates, and I will refer to those as her first or her second affidavit. The grandmother also gave oral evidence.
The father relied upon a trial affidavit filed on 27 January 2015 and he gave oral evidence.
Credit
In general, where there is a conflict between the evidence of the mother and that of the father, I prefer the evidence of the mother. That is because the father has a tendency to understate the facts and provide versions of events that are a little “light on” when it suits his case. A good example can be seen from what is set out at paragraphs 68 to 70 below in relation to the circumstances in which the mother sought and obtained a restraint order against the father.
Background
The Family Consultant set out the background to the parties’ dispute in the Family Report, which was not seriously challenged so I repeat it here:
2. The parents commenced a relationship as teenagers when the mother was almost 14 years and the father almost 19 years. At the time [the mother] was estranged from her mother and living with friends. [The child] was born when [the mother] was sixteen years. According to the mother the relationship between herself and [the father] was abusive with [the father] being very controlling. In about March 2002 Child Protection Services became involved and [the child] was removed from her parents’ care and placed into the care of the maternal grandmother …. The parents had time with [the child] at the home of the paternal grandmother on alternate weekends and the mother had other time with [the child] when she visited at the maternal grandmother’s home. The parents separated later that year. Apparently [the father] ceased having time with [the child] from around November 2005 until September 2006 (mother’s affidavit 16/4/2013) due to the maternal family’s allegations that the paternal uncle (a child) had been sexually assaulting [the child]. The mother’s involvement with [the child] continued via the maternal grandmother. Interim orders were made in early 2007 for the father to have regular time with [the child] and these parenting arrangements largely continued in the final orders of 30 April 2009 - [the child] living with her maternal grandmother during the week except Wednesday nights which alternated between her mother and her father, and weekends, when [the child] spent one weekend with her mother and the alternate weekend with her father (from 4:30pm Friday to 4:30pm on Sunday). School holidays were shared in a similar fashion.
3. The Department again became involved in the middle of 2010 due to a notification. They recommended counselling for [the child] (which apparently occurred at Centacare), and reinstatement of the father’s time with [the child]. The father’s time recommenced in February 2011. There have been various contravention applications initiated by the father including in March 2011 and again in October 2012.
4. As a result of difficulties in January [2013] about [the child]’s holiday time with the father (a factor in these difficulties being the reduction in overall summer school holiday time due to the change to a four term school year commencing 2013), [the father] retained [the child] and the police apparently attended.
5. The mother and grandmother claim that [the child] no longer wishes to spend time with her father. [The child] has not spent time or communicated with her father since the difficulties last January. [The mother] filed an initiating application 1/3/13. [The grandmother] has not filed a response however has filed an affidavit (16/4/2013) in which she responds to the contravention application of [the father] of 10/10/2012 and in conclusion comments that she is fully supportive of her daughter’s initiating application of 16/4/2013.
6. There are two current family violence orders on [the father] for the protection of [the mother] and her two younger children … and for the protection of [the grandmother]. These are two year orders which expire 14/1/2015.
7. [The child] has lived with [the grandmother] since infancy. She has spent time with her parents, more so her mother than her father, since then. Although it is clear that she is not spending any time with her father at present, it was somewhat unclear what time [the child] is currently living with her mother and with her maternal grandmother. It appears that the mother and grandmother were being less than transparent on this issue as [the child]’s living arrangements are in the process of changing between their two households. [The child], her mother, and her grandmother all indicated that [the child] is in the process of moving to live with her mother. However their accounts varied as to whether [the child] was as yet residing predominantly at her mother’s home.
I accept the mother’s and the grandmother’s evidence that the child has been living with the mother full time since January 2014, and that in November 2013 the mother ended her 10 year relationship with the father of her two other children aged 9 and 6 years.
It was common ground between the parties that the father has not spent any time with the child since late February 2013, other than the time spent with her during the interviews for the Family Report on 16 October 2013. I will refer to that in more detail below.
Legal principles to be applied
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration.[6]
[6] Section 60CA
Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects. The objects of Part VII are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. [7]
[7] See subsection 60B(1)
Except when it would be contrary to a child’s best interests, some of the principles underlying those objects are that:
·children have the right to know and be cared for by both their parents; and
·children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development; and
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children.[8]
[8] See subsection 60B(2)
In determining what is in a child’s best interests I must consider the matters set out in section 60CC. It refers to “primary considerations” and “additional considerations”.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.[9] The court must also take into account those of the “additional considerations” that are relevant.[10]
[9] Subsection 60CC(2)
[10] Subsection 60CC(3)
The court must apply a presumption that it is in the best interests of children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent has engaged in abuse of a child of that parent’s family or in family violence[11].
[11] Section 61DA
If a parenting order is to provide that the parents are to have equal shared parental responsibility for the child, the court must consider whether spending equal time with each of the parents would be in the best interests of the child and is reasonably practicable. If it is, the court must consider making an order to provide for the child to spend equal time with each of the parents.[12]
[12] Subsection 65DAA(1)
However, if an order is to provide that the parents are to have equal shared parental responsibility but the court does not propose to order that the child is to spend equal time with each of the parents, then the court must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each of the parents and whether that is reasonably practicable.[13]
[13] See subsections 65DAA(2) and (3)
It is clear that the court is not restricted to considering only the proposals put forward by the parties.[14]
[14] See KB & TC (2005) FLC 93-224
The conduct of the proceedings
In deciding what orders I should make, I will consider the evidence in the light of the considerations under section 60CC of the Act. However, before I do that, I consider it appropriate to make some comment about the conduct of proceedings in relation to children under Part VII of the Act.
In our judicial system, proceedings generally follow an adversarial format. Unfortunately, that can sometimes cause one party to fall into the trap of unnecessarily belittling the qualities and actions of the other party. That does not accord with the principles for conducting child-related proceedings as set out in section 69ZN of the Act. Indeed, it is worth re-stating that one of those principles is that “the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties”.[15]
[15] See subsection 69ZN(6)
In this particular matter, the father adopted a position that was neither cooperative, nor child-focused. I considered it to be most inappropriate for the father to seek to rely upon some subpoenaed material (which the mother had not seen until the hearing) in an apparent attempt to suggest that the child’s reluctance to have any contact with him may have been caused by the mother’s mental state, rather than by his attitude and actions. An attempt to question the Family Consultant about some of the contents of the subpoenaed material was not permitted by me.
It is also important to keep in mind that the subpoena process is not designed to enable a party to “dig for dirt”. It is clear that the issuing of any subpoena must serve a relevant forensic purpose. As Guest J said in A & A and Ors:[16]
Any pious expectation or hope of landing a document that may be of relevance to the actual proceedings before the Court is nothing short of fishing.
[16] A & A and Ors [2005] FamCA 561
I also repeat what I said more than once during the hearing; “trial by ambush” does not apply in this Court, and is clearly contrary to any concept of procedural fairness.
The Section 60CC criteria
As mentioned above, I will consider the evidence in the light of the considerations under section 60CC of the Act.
Primary considerations
The benefit of having meaningful relationships with both parents
In McCall & Clark,[17] Bryant CJ, Faulks DCJ and Boland J said this:[18]
We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents.
[17] McCall & Clark (2009) FLC 93-405
[18] At paragraph 119
Clearly, the benefit to a child of having a meaningful relationship with both parents is one of a number of factors to be considered under section 60CC, but nowhere in the Act does it state or imply that having a meaningful relationship with both parents “trumps” all of the other considerations under section 60CC. It is a matter of the weight to be attributed to each relevant factor in the specific circumstances of the particular case, and I note that in Godfrey & Sanders,[19] Kay J (sitting as the Full Court) said:
The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case.
[19] Godfrey & Sanders [2007] FamCA 102 (23 February 2007)
As the ICL pointed out, subsection 60B(1)(a) makes it clear that while one of the objects of Part VII of the Act is to ensure that “children have the benefit of both of their parents having a meaningful involvement in their lives”, that is expressly qualified by the words “to the maximum extent consistent with the best interests of the child”. [20]
[20] See paragraph 5 of the ICL’s Case Outline filed 4 February 2015
In this particular matter, the father cannot be criticised for wanting a meaningful relationship with his daughter. That is only natural. However, the court needs to weigh up whether orders requiring the child to attend counselling and/or to spend time with the father are in her best interests. I shall refer to the child’s relationship with her father further below.
Protecting the children from harm from abuse neglect or family violence
Subsection 60CC(2A) now requires the court to give greater weight to this consideration than to the benefit to the child of having meaningful relationships with both parents.
There is no doubt that the father has engaged in family violence as defined by the Act.[21] His threats to the mother (as referred to at paragraphs 68 to 70 below) clearly fall within that definition and the child should be protected from witnessing or overhearing any abusive or threatening comments by him. Unfortunately, I cannot be confident that the father is able to control himself in that regard. I note and accept the Family Consultant’s comments at paragraphs 24 and 25 of the Family Report:
24. After seeing her resistance to him, the option of [the father] waiting for [the child] to initiate some contact in the future was discussed with him. His response was quite startling in its aggressive nature “No….if she turns up on my doorstep (some years later) I’ll punch her head in”.
25. Although [the father] expresses himself aggressively and apparently has done so in a similar fashion to school personnel and to his lawyer, for him to make such a comment in relation to a daughter whom he ostensibly loves and cares for seems very inappropriate and indicative of his own neediness and fear of rejection. Coupled with his issues of controlling behaviour and inflexible parenting style it is likely that he will experience more and more difficulties with [the child] as adolescence is developmentally a time for children to test boundaries, desire independence, and so on, which [the father] is likely to find difficult to cope with.
[21] Section 4AB
The father’s explanation was not particularly persuasive. He said: [22]
I admit making the comment about a punch to the head; however, this was intended to be exaggeration and was around my upset at the time. In hindsight I accept that it was extremely poor wording. Given how distant [the child] was in the interview, I felt that she had been very rude and disrespectful and the idea of having to wait years before seeing my daughter upset me further.
[22] At paragraph 69(d) of his affidavit
I also remain unimpressed by the explanation given by the father’s treating psychologist, who said this in an email to the father’s solicitor after he had read the Family Report: [23]
As you know [the father] is a client of mine. He does not always acquit himself well in interviews and my impression is that he is prone to making extreme statements for dramatic effect without any intention of acting on them.
Relevant additional considerations
[23] See Annexure “K” to the father’s affidavit
The child’s views
I repeat that Kay J said in Godfrey & Sanders that section 60CC “does not seek to mandate that any one or other matter becomes determinative in any particular case”. In a finely balanced case, it can sometimes be just one section 60CC consideration that becomes decisive in determining the outcome. However, there can also be cases where matters are not finely balanced, but one of the section 60CC considerations is so strong that the others are overwhelmed by it. In this case, “the child’s views” is quite clearly a strongly determinative consideration.
At paragraph 45 of the Family Report, the Family Consultant said:
[The child] was asked what she wanted the Judge to know about the issue of her time with her father and she responded “I’m hoping he’ll (the Judge) just say I can choose if I want (to go)”.
Somewhat disturbingly, the Family Consultant said this at paragraph 47 about the only time that the child has spent with her father in the last two years:
[The child] was observed with her father. She held herself in a protected position - that is she folded her cardigan tightly around her body and face. She appeared to be crying and cringing away physically from him although [the father] did not attempt to come into contact with her. She largely resisted his overtures of conversation and his questioning. [The father] was redirected in his line of approach on a couple of occasions due to his tendency to revert to wanting explanations from her for her rejection of him. When the consultant engaged [the father] in conversation about other things, [the child] appeared to relax a little, opening up her cardigan and adopting a more open body posture. She engaged in some brief eye contact with her father. The consultant remarked on [the child] speaking with her about a bee sting that she received when on an outing with her father and he asked her if she was keen to go on this outing again however she shook her head.
When the Family Consultant was questioned by the ICL about her statement that it appeared somewhat unlikely that the child would cooperate with court orders to spend time with her father,[24] she opined that, as the child moved further into adolescence, it was even more unlikely that she would cooperate.
[24] At paragraph 56 of the Family Report
I am therefore not surprised that the mother reported the child’s views in the following terms in her second affidavit:
Following recent discussions with [the child] she continues to state firmly to me that she does not wish to have any form of contact with [the father].
The relationships of the child with the parents and other people
As mentioned above, I accept that the child has been living with the mother full time since January 2014. I have no reason to conclude that the child’s relationships with the mother and her two half-siblings are anything other than warm and loving.
It is clear that the child also has a very warm and loving relationship with the grandmother. In the Family Report, the Family Consultant described that relationship as “most significant”[25] and in her oral evidence she described the grandmother as the child’s “safety net and her stability”.
[25] At paragraph 54
The Family Consultant stated that the child’s relationship with the father “may be tenuous”.[26] Given the father’s behaviour at the Family Report interviews and the child’s reaction to his presence, that is hardly a surprising statement.
[26] Also at paragraph 54
The capacity to provide for the child’s needs
In paragraph 55 of the Family Report, the Family Consultant said:
[The father] appears unrealistic about his relationship with his daughter and the way forward. He sees more connection in the father/daughter relationship than is felt by [the child] at this point. He appears to lack insight into [the child]’s behaviour and to lack appropriate skills in responding to her as a pubescent young woman. He is focussed on his feelings of anger and rejection and does not seem aware of the part he may have played in the current difficulties in his relationship with [the child]. It is easy to blame others and harder to see one’s own contribution to problems however unless [the father] can do so he will continue to experience significant problems as a parent. He needs to modify his expectations in relation to his relationship with his daughter, and to rectify his parenting style if he wishes to play a role in relation to [the child] in the future.
That Report was made available to the father approximately fifteen months ago, but I cannot see any significant improvement in the father’s insight in relation to his role in his relationship with his daughter. He is clearly still focussed on his feelings of anger towards the mother and the grandmother and his desire to pursue Contravention proceedings even after reading the Family Report was simply reflective of that.
In his affidavit the father said this:[27]
Over the past 2 years, little has been able to be done in terms of rebuilding the relationship between [the child] and I. Both [the mother] and the ICL have not been supportive of counselling occurring, despite the Family Report and the failed processes. This has been incredibly frustrating for me - I simply want to return to having a warm relationship with my daughter, and to overcome the obstacles that have been imposed on our relationship.
[27] At paragraph 77
That paragraph shows clearly that the father blames both the mother and the ICL for not being “supportive of counselling occurring” and by inference for what he describes as “failed processes”. The facts do not support his view. In relation to that, I note the following:
·It is clear from Annexure “M” to the father’s own affidavit that the ICL did try to involve an employee of Anglicare (“the counsellor”) following the release of the Family Report.
·On 20 February 2014 I made an order with the consent of all parties to allow the ICL to provide a copy of the Family Report to the counsellor.
·The counsellor met with the father on 3 April 2014.
·On 10 April 2014 the counsellor attended the mother’s home but he was unable to engage the child in the process.
·Nothing in the fairly lengthy report by the counsellor to the ICL[28] suggests that the mother or the ICL were responsible for any “failed process”.
[28] See Annexure “M” to the father’s affidavit
What is set out in the two numbered paragraphs immediately above shows me very clearly that the father still has no insight into his own role in his difficult relationship with his daughter and he is still blaming others for the difficulties.
It has been suggested that the father may not have been attuned to the child’s need for privacy when she was spending time with him. During her cross-examination by the father’s counsel, the Family Consultant stated that, although it was not in the Family Report, comment had been made to her about the father supervising the child’s personal hygiene too closely for the child’s comfort “in a manner that most female children over the age of about nine would find intrusive”. When questioned further, the Family Consultant conceded that these comments may have been made by the mother or the grandmother, rather than by the child herself.
In her first affidavit the mother had said that the child had told her and the grandmother inter alia:
He watches her in the shower and dries her whole body, not letting her do it. He has told her that he is going to do it, until she will know how to do it properly. [The child] has told me that she has asked her father to stop doing this on many times in the past. [She] is now 11 years old and is developing into a young lady. She has told me that she is extremely embarrassed and afraid. She has told me things like, “My friends’ dads wouldn’t do that. It makes me feel sick. I don’t like it.”
The grandmother confirmed that evidence in her first affidavit.
The father’s evidence about his supervision of the child’s hygiene was as follows:
During her time with me, I would help [the child] set the water temperature in the shower, and I help her dry her hair. I told her that, when she felt ready to do things herself, I would stop, but she never asked for this. She doesn’t seem disturbed by it at all.
That statement suggests to me that the father may not have appreciated the possibility that the child might not have wanted to tell him that she needed her privacy and that she could have been too embarrassed to tell him. I also note that the Family Consultant observed that the father was not insightful about the power imbalance between himself and the child.[30]
[30] Paragraph 26 of the Family Report
The attitudes of the parents to the child and parental responsibilities
At paragraph 19 of the Family Report, the Family Consultant said:
[The father] recalled an incident where he had disciplined [the child] by making her stand in the corner for about 20 minutes in the middle of the night. This occurred the night before the car rally event last January. [The child] had a young friend staying in another bedroom who is a boy in the year below her at school. She had got up in the night to go to the toilet and spoken with the boy on her way back to bed. When questioned by her father she had denied spending any time speaking with the boy. He described “going off my fucking head” and said that this was because she had lied to him (about talking to her friend) and also because she hadn’t washed her hands after going to the toilet.
When she was cross-examined in relation to that paragraph, the Family Consultant said “for a child of her age, in the middle of the night, I thought it was entirely inappropriate”. I agree.
The father’s reaction to his contact with the child during the Family Report interviews is a cause for concern. The Family Consultant said:
He reported to the writer that [the child] was “not the girl I remember” and a bit later when he was spoken to further he remarked on her being “pretty hostile” and “it’s like she’s not allowed to talk to me”. [The father] reported to the consultant that, when he had gone out to the waiting area after seeing [the child], he had commented to his mate: “I didn’t know my kid could be such a totally disrespectful fuck”.[31]
[31] Paragraph 22 of the Family Report
In my view, the father’s evidence about that did little to mitigate the disturbing nature of his reaction on that day. He said this in his affidavit: [32]
I was greatly taken aback by the behaviour I witnessed from [the child] that day; she seemed distant and disrespectful. I had never witnessed this side of her before. My anxiety levels went through the roof when I saw this. I admit that I made comments - out of [the child]’s hearing - that I should not have. I was just distressed at the time.
[32] Paragraph 69(c) of his affidavit
It is not very surprising to me that the Family Consultant was of the opinion that the father needed to rectify his parenting style.
The practical difficulty and expense of the child spending time with and/or communicating with a parent
The parties live in relatively close proximity, so there are no unusual expenses associated with the child spending time with her father. However, the child’s unwillingness to spend time with her father does create some practical difficulties. The Family Consultant stated:
From this assessment it also appears somewhat unlikely that, should [the child] be forced by new court orders to spend time with her father, she would do so. This is because she does not want to see her father, she does not trust him to meet her needs for love and security and to parent her appropriately …[33]
[33] At paragraph 56 of the Family Report
The Family Consultant commented in her oral evidence that the difficulties in re-establishing a relationship between the father and the child were likely to be greater given the time that had passed.
The evidence suggests that the child has “run away” at times, so I think it highly unlikely that the child will comply with any orders to spend time with her father, and given that she would not engage with the counsellor, I can see no useful purpose in ordering any further counselling.
Any family violence involving the child or family member and any family violence orders
In his trial affidavit the father said:[34]
On 24 September 2012 [the mother] filed an application for a restraint order, and the order was made final on 14 January 2013. The Court found that a text message I had sent was sufficient grounds for the restraint order - I had said that [the mother] and [the grandmother] should let me have contact “or she’s on”. I had meant by this that the litigation side of this would be on, and had not intended a threat of any physical action, but the Court took the view that the threat could be seen that way.
[34] At paragraph 29
However, in the mother’s first affidavit she had said:[35]
[35] At sub-paragraph 11(b)
On the 29 September 2012, I received some text messages from [the father] saying:
(i) “I will be there at 3.00pm to get [the child] and if you don’t make her available I don’t mind going to gaol. You fucks are dead. No more fucking around you dumb fuck. She’s on.”
(ii) I responded saying, “It’s mum’s time, not yours.” It was not.
(iii) He then replied as follows, “You need to stop playing fucking games or [the child] is gonna have no-one. You and your mum are going to die.”
I am satisfied on the balance of probabilities that the mother’s version is the more accurate version. However, it is clear from Annexure “C” to the mother’s affidavit that her reference to 29 September 2012 is a typographical error and that the events took place one week before that. Although neither party produced the relevant text messages, I accept the version as set out in direct quotes in the mother’s first affidavit, in preference to the father’s version as set out in his trial affidavit filed more than two years after the relevant events. Annexure “C” to the mother’s first affidavit is a document completed by her only two days after the relevant events and it corroborates what she said about threats made by the father. What the father said in his text messages was considerably more threatening than simply “she’s on”. It is therefore not surprising to me that a magistrate made an order for the protection of the mother that was to remain in force for two years.
Is it preferable to make an order least likely to lead to further proceedings?
Given what I have said above about the child being unlikely to comply with any order to spend time with her father and the father’s apparent willingness to commence Contravention proceedings if there is non-compliance, I consider that there should be no orders requiring the child to spend time with the father.
Conclusions
Because I have found that the father has engaged in family violence, the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility is not applicable in this case.
The mother and the grandmother seek an order that the mother have sole parental responsibility for the child. That would deprive the father of parental responsibility for her, and it is a serious step for a Court to make such an order - see Murphy J’s decision in Runcorne & Raine.[36] The father is seeking an order for equal shared parental responsibility.
[36] Runcorne & Raine [2008] FamCA 837
The ICL’s position is that that, while an order for sole parental responsibility is unusual, it reflects the reality of the inability of the mother and the father to make decisions jointly. I conclude that the ICL’s view about that is correct and I note that in Runcorne & Raine Murphy J said this at paragraph 34:
A finding that the parties are utterly incapable of achieving now, or in the foreseeable future, what the Act requires of those who share parental responsibility, and a finding that this incapacity is highly likely to spill over into regular future conflict for the children, appears to me to lead to a conclusion that the sharing of parental responsibility in the manner envisaged by s 65DAC – and, in particular, sharing parental responsibility equally - is contra-indicated in the best interests of the children.
In view of what I have set out in these Reasons, I conclude that it is not in the best interests of the child for there to be an order for equal shared parental responsibility between the parents. Consequently, there will be orders that:
·the mother is to have sole parental responsibility for the child;
·the child is to live with the mother, and spend such time with the grandmother as agreed between her and the mother; and
·there is to be no order requiring the child to spend time with the father or communicate with him.
Comment
I do not have a crystal ball, but it is not beyond the realms of possibility that the child could seek out the father of her own accord at some stage in the future. If that happens, it will be almost entirely in the father’s hands whether or not that could result in a successful re-establishment of their relationship. However, I can say with absolute certainty that it will require a significant shift from the father’s current attitude towards the child. I can only hope that he will seek some assistance from his psychologist about how to handle it if it does happen, and that he does not wait for it to happen before he seeks that assistance.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Roberts
Associate:
Date: 30 March 2015
[29] Paragraph 44 of his affidavit
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