Hanson and Delaney

FAMILY COURT OF AUSTRALIA

HANSON & DELANEY

[2010] FamCA 1031

FAMILY LAW – CHILDREN – Parental responsibility – Shared care where equal shared parental responsibility does not apply – High level of conflict between parents – Child of Aboriginal descent – s 60CC(3)(h) and s 60CC(6)

APPLICANT:

Mr Hanson

RESPONDENT:

Ms Delaney

FILE NUMBER:

PAC

2823

2009

DATE DELIVERED:

19 November 2010

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Cleary J

HEARING DATE:

14, 15, 16, 24 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schroder

SOLICITOR FOR THE APPLICANT:

Watts McCray

COUNSEL FOR THE RESPONDENT:

Mr Greenaway

SOLICITOR FOR THE RESPONDENT:

Barber & Massey

Orders

That all previous orders are discharged.
That in relation to long term issues involving N (“the child”) born … November 2008 including but not limited to: her enrolment at school, education, significant medical treatment and religious instruction each parent must advise the other in writing of his or her proposal not less than 28 days before the decision is made and/or implemented and the other parent, if opposed, must reply in writing with his or her counter proposal within 14 days.
That the father has responsibility for decisions as to the daily care of the child during periods when she is living or spending time with him and the mother has that responsibility at all other times.
That the child live with the father as set out below and otherwise shall live with the mother:-
4.1      Until the child reaches the age of 3 years:-
(a)in week one on Tuesday from 9.00am to 5.00 and from 5.00 pm Friday to 5.00 pm Sunday; and
(b)      in week two from 9.00 am Thursday to 9.00 am Saturday;
4.2      From November 2011 until commencement of school 2014:-
(a)      in week one from 5.00 pm Thursday to 5.00 pm Sunday;
(b)      in week two from 9.00 am Thursday to 9.00 am Saturday;
4.3      From the commencement of school in 2014:-
(a)in week one from Thursday after school to before school the following Monday;
(b)in week two from Thursday after school to before school Friday;
(c)      for half of each school term holiday period;
(d)for two periods of 10 days in the Christmas school holidays in 2014/2015 and 2015/2016 each period to be separated by not less than 10 days and thereafter for half of all Christmas school holiday periods and failing agreement otherwise the first half where the holiday period begins in an even numbered year and the second half where the holiday period begins in an odd numbered year; and
(e)at such other and/or additional times as are agreed between the parties.
That except as otherwise specified in these Orders changeover shall occur failing agreement between the parties otherwise at the maternal grandmother’s residence and the mother shall ensure that only the maternal grandmother or maternal grandfather collect and deliver the child at the front door.
That without admissions:-
(a)neither parent is to consume alcohol 12 hours prior to or whilst the child is in their respective care;
(b)neither parent is to consume non-prescribed drugs, narcotics or steroids;
(c)both parents are to ensure that the child is not exposed to cigarette smoke at home or in the car.
That each party ensure that the other is advised promptly of any medical emergency or significant illness suffered by the child whilst in that parties’ care, including sufficient details to enable both parties to be consulted with respect to and fully advised regarding such illness or condition and any treatment recommended or provided.
That both parties be restrained from relocating the residence of the child outside the Sydney metropolitan area without the written consent of the other party or Order of the Court first obtained prior to any such relocation.
That each party be and hereby is restrained from denigrating the other party or members of the other party’s family in the presence or hearing of the child and further each party shall use his or her best effort to ensure that no third party denigrates the other party or members of that party’s extended family within the presence or hearing of the child.

NOTATION:
A.In relation to Order 2 above, if the parents are unable to agree on a particular long term issue they should attend mediation or counselling before making further application to the Court.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2823 of 2009

MR HANSON

Applicant

And

MS DELANEY

Respondent

REASONS FOR JUDGMENT

Introduction

These are competing applications for parenting orders by the parents of the child, N, born in November 2008. Both parties seek residence. The father sought sole parental responsibility in his Application but changed his position to sole responsibility for education and health issues.
In her Amended Response the mother asked the Court not to disturb the position at law which applies prior to Parenting Applications being made. During her oral evidence the mother referred to sole parental responsibility for herself but did not press that position.
The child, N, presently lives with her mother and spends time with her father each week from 5.00 pm Friday until 5.00 pm Sunday pursuant to orders made on 28 August 2009.
The mother’s proposal is that the child spend time with her father for four hours each Wednesday and each alternate weekend from 5.00 pm Saturday to 5.00 pm Sunday until 31 October 2011 when the weekend would extend from 9.00 am Saturday to 5.00 pm Sunday.
In the case outline prepared on behalf of the father the relevant order sought was that the child live with the mother each Wednesday from 9.00 am until Friday 5.00 pm, and for Mother’s day from 9.00 am until 5.00 pm. The father changed his position in the witness box during cross examination to the following position: that the mother spend time with the child for two days each week from 9.00 am to 5.00 pm which would extend to an overnight period when the father was satisfied that the mother had stable accommodation.

History and Background

The applicant father, Mr Hanson (“the father”), was born in 1979 and was 31 years at the date of hearing. He is a tradesman. His family operates a business through a company which employs him. The father lives at home with his parents and maternal grandparents. He has worked as a tradesman in the family business since 1994 (Exhibit “M1”) and I assume he therefore left school at age 14 or 15 years.
The respondent mother, Ms Delaney (“the mother”), was born in 1975 and was 35 years at the date of hearing. The mother also left school at age 14 or 15 years. At that time she had already left home and had begun living independently. The mother married a Mr P and had two children, JP born in February 1996 and CP born in November 1997. JP lives with his father and spends time with the mother. CP lives with the mother and spends time with her father.
The parties met in approximately 2001 and formed a relationship. They began living together in July 2007 in a property owned by the father and leased until cohabitation began. The parties lived together with the mother’s children, JP and CP. The domestic relationship was a turbulent one from the beginning. The mother says there were frequent periods of separation in 2007 and that the father was violent towards her and intensely critical of her at all times. The father says that the mother was unable or unwilling to keep the house clean to a standard that was acceptable to him, was regularly affected by alcohol and was verbally abusive to him. The relationship, on the evidence of both parties, was angry, stressful and unpleasant.
Early in 2008 the parties conceived a child, N, who was born in November 2008. Both parties agree that the relationship deteriorated further after the birth of the child and it ended in dramatic circumstances in April 2009 when both parties and the child (however slightly) were all injured in an incident in the home which reflected badly on both the parties.

The Evidence

Documents relied on

Documents relied on by the father:-
a)Case Outline;
b)Further Amended Application filed 6 August 2009;
c)Affidavit of the father filed 23 July 2009;
d)Affidavit of the father filed 12 January 2010;
e)Affidavit of the father filed 3 September 2010;
f)Affidavit of the paternal grandmother filed 23 July 2009; and
g)Affidavit of the paternal grandmother filed 12 January 2010.
Documents relied on by the mother:-
a)Case Outline;
b)Amended Response to Initiating Application filed 20 August 2009;
c)Affidavit of the mother filed on 25 August 2010; and
d)Affidavit of S Delaney filed on 25 August 2010.

The Father, Mr Hanson

The father gave his evidence in a straightforward manner. On many occasions he apparently found it difficult to articulate responses and was at pains to repeat himself in order to be understood. I formed the impression that the father moved in with the mother and her children with a belief that the running of the home would in some way resemble the way his family home was organised and run by his own mother. He clearly felt bewildered by the contrast, especially some of the noise and inevitable chaos that comes from children in the home. JP and CP were aged 11 and 10 years when the parties began living together. Clearly there were arguments between the parties on many occasions over the expectation of the father that the home would be clean and tidy, dishes done and children fed by the time he got home from work. Equally, the respondent mother felt both confronted and criticised by the father’s expectations.
This situation accelerated greatly after the birth of N, the father’s first child, the mother’s third. The father agreed that he might have said:-
“Why didn’t you get a chance to do that?”
referring to any particular aspect of housework and:-
“Do you want Mum to come over” and “I like the house to be kept clean.”
The father said that when he came home in the evening he cooked dinner every night, picked up nappies off the floor, that very little cleaning had been done and no cooking. He said his mother had done the washing for the family and that if the mother did the washing it ended up in a “big crumpled up pile”.
The following exchange took place:
Q: “Were you proud of anything she did?”
A:“Not in the last few months. Not a great deal. She sat on the couch watching TV and drinking.”
This was a reference to the last few months of the parties living together. They separated when the child was five months old so presumably this represented that period after the child’s birth. Not surprisingly, as a new parent, the father had very little understanding at that time of what was involved in caring for a new baby and getting two older children off to school each day, as well as the demands of cooking, cleaning, washing, ironing and maintaining the home.
The father had provided accommodation for the mother and her children on two occasions, once prior to their living together and on the second occasion when they all lived together in the father’s property at H. He was particularly concerned about the thought of the child regularly moving to different houses and perhaps being accommodated on an emergency basis in hotels.
The father thought that the minimum requirement would be that the mother had a six month lease and that he knew where she was staying and that the accommodation was suitable. This was in respect of overnight time between the child and her mother. I accept that the father has genuine concerns about the physical safety of his daughter and the risks associated with constant changes of accommodation and especially emergency accommodation in hotels and refuges. Part of his concern was that if there was a domestic crisis which required a change of accommodation Orders for his time with the child could be disrupted.
The father did not give the impression that he had considered the impact on his daughter of removing her from the care of her mother to the extent that he was proposing, that is that the child would spend from 9.00 am to 5.00 pm on two days per week, at least for a period of months, until the father was satisfied that the mother’s situation was stable.
The father clearly understood that there would be an impact on the child of spending less time with him, as was revealed in the following exchange:-
Q:“What time are you seeking to spend with [the child] if she continues to lives with her mother?”
A:“Anytime that is less than what is currently happening would be a shock to both of us. She is happy when she arrives, sad to go on Sunday so no less than that.”
His next remark was:-
“I do think the mother should have overnight time when she is stable.”
I consider that in that moment where the father was considering the thought of having less time with his daughter, understanding that she would be distressed by seeing him for a shorter period of time, he understood that she would also be distressed by seeing her mother much less then she was used to doing.
The father gave evidence that he works from home other than quoting on work onsite and that his usual days for doing that were Tuesday and Wednesday. He explained that office work could be done at any time, in the evening, early in the morning or at weekends. The father was vague about the extent of his work and the amount that he was paid for it by the family company. In response to a call for the work diary where all his working hours were recorded and for his St George Bank accounts statements and any wage statements to be brought to court, there was one letter dated 14 September 2010 brought to court on the following day after the call (Exhibit “M1”). This document simply stated that the father had been employed in the family business since 1994, the first five years as an apprentice, then approximately nine years as a sub contract tradesman and in the past 18 months as the estimator/organiser. It said his hours are flexible, working an average of three days per week at a fee of $40 per hour.
It is still unclear the number of hours that the father works in any particular week or on average, however, I note that in the Facts Sheet dated 16 April 2007 contained within Exhibit “M2”, being an indictable brief of evidence prepared on 16 April 2009 under the heading “Antecedents” is this statement:-
“The accused is a [tradesman] and earns about $1,600 per week. The accused has one dependent child.”
The evidence suggests that the father works about 40 hours per week or was working about 40 hours per week in April 2009. His evidence was that in the week prior to the hearing he had worked about 16 to 18 hours and earned $100 and that in the week before he had earned $900, that his hourly rate was $28 to $30 and that his weekly wage varied from $500 to $1,200. The position is quite unclear.
The father said he was also working around the house, helping in the garden, his parents were getting older and he needed to take up the maintenance of the home, that he only needed to work three days or so to pay his bills and he also had to make provision to look after his daughter. I find that the father made no genuine effort to disclose to the court the extent of his earnings or the number of hours that he routinely works. I accept that he would arrange his working days to accommodate the need to look after this daughter when she is with him but I find that he had a capacity to work full time in the business and that he has been choosing to work an average of three days per week since the child was born.
The father presented as very much part of his family of origin, in effect making the application for the child to live with them all. He stated that nobody in his family drank alcohol: his parents not for the last two years and his brother would have a beer on Friday afternoon after work but otherwise was not a drinker. He said he himself did not drink.
He was highly critical of the mother’s extended family. He said this:-
“She hasn’t shown a lot of family responsibility and she hasn’t got the family support unless she bribes them with marijuana.”
I note that the father pays child support, either of $130 per month (father’s evidence) or $100 per month (mother’s evidence) which is a minor contribution to the needs of a child of the age of N. I note that the father also provided food, clothes and other things that he considered that his daughter needed every week. He said that he had offered to pay rent for the mother provided that he could see the child in the afternoons and talk to her on the phone. He himself bought groceries as a contribution to his family’s household but did not otherwise pay rent there. In answer to the question as to whether or not he had thought about sending a cheque rather than buying goods for the child, the father said he had not because the mother might spend it on alcohol and drugs. He said he spent $150 to $200 per week at Woolworths, in the butcher and on clothes and that he knew what his daughter needed. The proposition was put to the father that he had tailored his wages to keep his child support down. He simply answered “no”.
The father owned the property at H where the parties lived together. I find that the father has a much stronger financial position than the mother and a capacity to work full time as a tradesman, either in his family’s business or elsewhere.
The father gave evidence about the involvement of his mother in the child’s life, how she had originally taken the child for an hour at a time extending to a whole day and that on those occasions the mother would drive the child to the paternal family home after she had taken CP to school. Subsequently, arguments between the parties developed over the length of time the child should spend with the paternal grandmother. The ultimate argument, on the day of the parties’ final separation, was over the father’s insistence and the mother’s reluctance about the child spending the whole day with the paternal grandmother. I conclude that the mother was initially grateful for the assistance offered by the paternal grandmother in caring for the child from time to time but she increasingly became anxious, even suspicious, that there was an intention to take the child away from her.
The father was asked about his weight training which he had been doing for, on his evidence, 10 years seriously. He said he had stopped using marijuana and got serious about his training. He regularly used testosterone boosters, amino acids, supplements, protein shakes and attended the gym more than one day per week as his only social activity. He denied the allegation that he had taken steroids and denied that he had been injecting any substance into his body in 2007 as the mother alleged she had seen him do.
The father agreed that in April 2009 when the relationship ended, there had been no door on the main bedroom and no door on JP’s bedroom. The father denied that he had punched a door in a rage and put his fist through it. He gave the explanation that he had run down the hallway in the dark in a hurry to use the bathroom, the door was shut when he thought it was ajar, and he ran against the door, pushed in one side of it. He said the incident had been accidental, his body weight had kept going and his palm went through the door and his face went right after it. The door caved in. I am unable to make a finding about the incident with the door but on balance it seems extraordinary that the father in the middle of the night, in darkness, would bring so much force to bear on the bathroom door that it caved in simply because he was in a hurry to use the bathroom at that time.

The father denied that he had at times hit himself or punched himself in the head. He said this was completely untrue.
There was an incident on 24 January 2009 where the parties had planned to go on an outing. Apparently the plan was for N to remain with the paternal grandmother and the parties and JP and CP would go on the outing. The father said he had made sandwiches and prepared an esky on that morning when an argument had broken out. The father denied that he had been “slamming” around the house and breathing heavily for half an hour that morning, as was alleged. He denied that he had been calling the mother names but agreed there had been a loud argument between them and that the mother had left the house with N and CP and walked down the road. The father agreed that he then rang his mother and said words to the effect:-
“[the mother] is going mental” or “[the mother] is going crazy.”
On the evidence of both parties this was an incident where the parties had yelled at each other and in any event the outing was cancelled. It seems likely that the argument was about the state of cleanliness of the house and that the father had felt considerable resentment about taking the outing when, as he saw it, the mother had failed in her side of the bargain which was to clean up the house before they left. The police were called on that occasion and the mother remained away with CP and N in a women’s refuge.
The parties began living together again and the mother and the two children returned to the home and the relationship continued for a little over two months before the final incident. Again, the argument apparently broke out over the state of the house. The father said this:-
“We had an argument two days before. I may have come up with something relating to cleanliness of the house. [The mother] said she wanted another man, I didn’t satisfy her. She took the kids and left.”
Then on 16 April 2009 there was the final dispute. The child had apparently been unwell during the night as she was teething. The mother had slept with the child on an inflatable bed on the floor in the lounge room. There was an arrangement made for the child to be cared for that day by the paternal grandmother. The father came out to collect the child to take her to his mother’s and the mother asked for the collection to be a little bit later in the day when the child had caught up on her sleep. The father said he disagreed, “she’ll be alright with my mother”, and made to take the child out of the house to his car. The proposition was put to the father that he had simply overruled the mother on the matter. He denied that but said this:-
“No, what’s wrong with my mother. [The child] was better off with her than being dragged back and forth to school.”
This comment, in my view, was illuminating and showed some resentment by the father over the fact that the child was taken out morning and afternoon when the mother dropped off and collected CP from school and that the father had a view that N would be better cared for and understood in his mother’s home. The father said that when it became an argument he said:-
“I’ll ring my mum and call it off. She can stay”
but the mother had continued to be aggressive and abusive towards him. He denied that he had insisted that the child go to spend the day with his mother.
There was undoubtedly a violent incident between the parties on that day. It was CP who called the police and CP gave a statement to the police on that day. She was then 11 years of age. She said at 7.30 am on 16 April she had woken to the sound of yelling. She then walked out of her bedroom and saw the father facing her mother, his back was to the wall. She said her mother was crying and that she called out “stop hurting my mum”. The father pushed the mother down the hallway towards the door frame of the bathroom. CP again called out “stop it”. She said the father pointed his finger at her and said “shut up bitch.” CP ran back into her bedroom because she felt scared and rang the police. CP went on to describe an incident that she saw through the window which took place in the front garden.
The father’s evidence was that he had sat down beside N on the blow up mattress in the lounge room, picked her up and held her in both arms and had said to the mother:-
“You have to calm down, I’m taking [N] to my mother’s.”
He then rang his mother and said:-
“Can you please hurry up. Can you get here as soon as possible. [The mother] is going crazy.”
I note that this evidence is inconsistent with the father’s evidence that when the matter had become an argument between he and the mother, he had said:
“I’ll ring my mum and call it off. She can stay”
It may be that the father did make that statement, however, I find that he did not make the call to his mother calling off the arrangement for her to care for the child. He said he went out to the car and realised he did not have his keys. The mother followed him out and asked for N to be given to her. He went back in to get his keys. He said the mother ran in and came in front of him. He said that she kicked him in the testicles and that he buckled over. He went out the front door intending to walk to the car. He said the mother then came behind him, put her fingers in his eyes and pulled back. He began to fall backwards, slid his hand up his cheek, pushed her hand away from his eyes and she ended up in the bushes. The father said he had sore eyes, injuries to his eyes, and that the child had a red mark near her eye from having been held closely to his chest.
This was a potentially dangerous situation where the conduct of both parties put the child at risk. Had the father called the arrangement off once he realised there was an argument over whether or not the child should spend the day with his mother the matter is likely not to have escalated. Likewise, the mother could simply have agreed to the child going and had the discussion afterwards. It would simply have remained as a disagreement between the parents about the arrangements for the care of the child on that day. The fact that the father stumbled and almost fell in the garden with the child in his arms, falling backwards and struggling to correct himself, illustrates the risk to the child.
The father was arrested and charged and an Apprehended Violence Order was put in place. Those proceedings are ongoing, the father having been convicted of an assault and now having lodged an all grounds appeal due to have been heard on 5 November 2010. CP was called to give evidence at the hearing and was cross examined by counsel for the father. The father was asked why what he had done on the day was better than leaving N there with her mother and his answer was:-
“In the moment it seemed right.”
He agreed he thought the mother had mental health problems and had told the family consultant that he thought so. He also agreed that on that day the mother had said to him:-
“She’s teething. Don’t take her out. Its cold.”
The father had realised the truth of that statement and had then wrapped the child, either in his jumper which he took off or his flannelette shirt. In this particular setting, the father’s insistence on removing the child from her mother and persistence despite her vehement opposition and physical confrontation put the child at risk although I conclude that the father did not consider that he was doing so at the time.
I note that the father was particularly frustrated in describing this incident, with heightened colour and a deeply furrowed brow. I formed the impression that he was reliving his immense frustration that the mother would not simply allow him, emotionally or physically, to leave the home with the child as had been planned. I consider that the father was inflexible in this situation where the child had been unwell during the night and the mother had simply asked for a delay to the arrangement that had been made.
Subsequently, the parties separated and the mother went to live with her parents and the father returned to live with his. The father made an application for a Recovery Order. The mother was not at court on that day. The father agreed that although he was in contact with the mother through text messages he had not told her of the court date considering that was a matter for solicitors and process servers. After the Recovery Order had been made, the father and his mother arranged to meet the mother and N in order that the Federal Police could attend and remove the child from the care of the mother. Subsequently, orders were made for the child to be returned, but for about 15 days she was separated from her mother. The child was then about six months of age and may have experienced distress no matter how well physically cared for she was during that period.
The father was cross examined about the observations in the report of the family consultant, Ms G. He agreed he had been surprised to see the statement by the family consultant that the child’s primary attachment was to her mother. He also said that in reading the report he had missed the following statement:
“As [the child] is primarily attached to [the mother] it is likely that a change in [the child’s] living arrangement would be distressing to [the child].”
I formed the impression that the father had had difficulty absorbing the information available in the report but, further, was unable to accept that at this stage of her life, the child’s primary source of security was with the parent with whom she spent the most time. The father’s responses about the nature of the room in which they had been assessed for the family report, particularly this statement:
“It would have been different if she’d come in with me and we’d been in a better room”
is a reflection of the fact that the father has misunderstood the information in the report about the bonding and attachment between the child and her mother and between the child and himself.
I accept that the father believed that if the assessment had been undertaken in a bigger room or more attractive room and that if the child had come to the assessment process with him rather than the mother, that the recommendations or observations would have been different. I find that the father simply does not understand the nature and significance of attachment. Indeed when he was asked whether he thought it would be distressing for the child to have a change in her living arrangements he disagreed.
To his credit, the father conceded that there was a close relationship between N and CP and reasonably said that the concerns that he had about the child’s safety overrode the bond between the child and her sister. He agreed that the child would feel the loss of CP. The father went on to say that the child would see CP a few days per week, that he loved CP like his own daughter and she was welcome to come over and see N at any time. In the circumstances, this appeared to be a genuine reflection of the father’s affection for CP but undoubtedly unrealistic about how likely it was that that would happen, especially as CP has been a witness in the criminal proceedings.
The father was asked if the child lived with him and missed her mother what would he do. The father responded:-
“As her father I have to care about her feelings but [the mother] has not been responsible enough to care for her. It’s her physical and mental health that matters. A dangerous situation outweighs missing her mother.”
I find that this response is a failure by the father to recognise the distress that would be caused to the child by extended periods of time away from her mother, particularly overnight, the mother being her primary attachment, despite the fact that he said:-
“as soon my daughter said ‘mummy’ (in the context of the child missing her mother), I’d be straight on the phone and if [the child] really, really wanted to and was missing her that much then I might agree to it if I could be shown where the mother was living and that the accommodation was suitable.”
I had the sense that if the child was in his care as a residence parent, the father would be extremely reluctant to initiate additional time between the child and her mother beyond what was ordered.
The father was asked about the significance of the child’s Aboriginality. He agreed it was important and said he would give her everything he could about her history and culture. His evidence suggested that that would need to be a matter of looking things up in libraries and museums and that would be a matter for the future at a point when the child herself may ask about her own Aboriginality and the significance of that matter.
The father was clearly proud of the child and happily agreed with the observation in the family report at paragraph 32 that she was advanced compared to other toddlers and that her speech development was very well advanced. The father attributed that to the fact that she spoke both English and Italian in his home. The general proposition was put that with the child doing so well, particularly in her gross and fine motor skills, she was apparently not neglected in that regard. The father’s response was this:-
“If she neglects her so much physically I find it hard to believe she puts as much time into her at home as I do.”
The father was unwilling to give the mother any particular credit for the child’s advanced development and, rather, concluded that it was the time that he had spent with her at weekends, reading and drawing. It was apparent that the father was unable to give the mother credit for the child’s health and development or attribute exposure to a loving older sibling, CP, rather than it simply being the input from the father’s household.

The paternal grandmother

The paternal grandmother gave her evidence calmly and in a considered way. Her household consists of herself, her husband, her son, the father in these proceedings, and her parents. She works in the family business typing quotes and doing the accounts.
The paternal grandmother agreed that the child had a very good relationship with herself and her husband but denied the observation of the family consultant that that might be a better relationship than the child had with her own son. As her son had done, she attributed the observations of attachment to the circumstances of the day of observation. She was that the room was unfriendly, that the child was confused and that she came to the observation with her mother, that the child appeared nervous and did not concentrate very long as she did in their home.
She was unable to comment on whether she thought the child had a very good relationship with her mother. There did not seem to be any understanding that the child’s enthusiasm in arriving in the paternal family home each Friday evening probably reflected a positive support of the relationship in the mother’s home.
The paternal grandmother described the child’s conduct on being taken back on Sunday evening to the mother’s home:-
“All I see is the distress. She cries and cries in the car. I make up stories to help her about how the cat needs feeding but [the child] says ‘Nonna, no back, back back’ when we are within 2 kilometres of the mother’s home.”
She said these changeover problems had occurred for about one year. I accept the evidence of the paternal grandomother about what she observed. I note that the response to the child’s distress has been to pull over, take the child out of the car and reassure her and amuse her, extending the journey. It seems likely that a pattern of conduct has been created by the genuine concern that the paternal family feels for the child. The child is likely to feel significant distress at the changeover. The evidence of the family consultant is that at her age the child has not yet developed a notion of cause and effect or of the timing of events. She is likely to simply associate the trip home with saying goodbye to the father and grandparents that she loves, and so becomes upset. I consider that the distress described does not relate to the child’s attitude to her mother.
The paternal grandmother was affronted by the child’s physical care in the mother’s home. She mentioned particularly that the child’s feet were dirty inside clean socks which suggested that the child had been running around in bare feet, a thing of which the paternal grandmother clearly disapproved.
I formed the impression that the paternal grandmother had always taken a kind and loving approach to the child and that in the situation where she had arranged with the mother to meet with the child so that the Federal Police could remove her, she had known how upsetting that would be for the mother but she had seen herself and the father effectively rescuing the child from the mother’s household. I have no doubt that the paternal grandmother has provided a very high level of physical and emotional care for N who is a well loved child in the paternal household.

The mother

The mother was unwilling to give her address although providing it in writing to the court. The mother is physically slight and was pale in the witness box, looking exhausted at the end of each hearing day. In oral evidence she said she was seeking sole parental responsibility because she needed the right to go ahead in an emergency if she couldn’t contact the father. She appeared to be expressing a wish to have authority in emergency situations and not press for sole parental responsibility. She agreed that discussion and mediation between the parents would be appropriate. She said that in relation to education, both parents should discuss it. As an example, she said that she had rung the father to tell him that she wanted to take the child to play group. He said no, she is too young and she would be bullied. The mother said she had thought she should allow for the father being a first time father and wait for 12 months. The mother did not go ahead with including the child in a playgroup although she would have liked to do so. This was to the mother’s credit.
The mother said she would like to have a weekend with the child. The child has not spent a weekend with her for the 13 months prior to the hearing. The mother wanted the child and her other two children to be together at least on alternate weekends. The mother’s son, JP, now lives with his father and spends time with his mother on alternate weekends and on other occasions. She thought that alternate weekends and two days through the week would be an appropriate arrangement for N to spend with her father and holiday time once she was in kindergarten at school and could understand holidays. The mother has not taken the child on holiday to date.
The mother was extensively cross examined about her history of accommodation and the proposition was squarely put to her that the father made allegations of neglectful parenting by her through alcohol use and violence. She agreed that she had been excluded from public housing and attributed the failure to pay rent to her ex husband, the father of her older two children. She agreed she had been warned in relation to her behaviour and attributed the problem to neighbours who she said had been “real nasty” through the fence. She agreed she had complained about her former husband, Mr P. There was an incident with an elderly neighbour who the mother said had “done silly things to all of us (in the area where the mother was then living)”.
The mother was cross examined about an incident in December 1995 when she is alleged to have abused a staff member at the Department of Housing. The mother explained the incident. She said she had fallen into arrears of rent. She tried to negotiate with the Department on the basis that she would pay the money if she could stay on in the property but if she wasn’t to be allowed to stay on then she shouldn’t have to pay as she would need the money to re-establish herself. She said she had paid the money and then been refused permission to stay on. She had reacted with anger to what she saw as unfairness. However, it was not clear to me, even on the mother’s own evidence, that the Department had agreed to her bargain. The mother certainly showed no understanding at all that the staff member who was the brunt of her anger may have been upset and offended by her conduct. The proposition was put to the mother that she was quick to lose her temper. The mother’s response was:-
“Not so much now, was when I was younger. It doesn’t get you anywhere.”

I formed the impression that the mother was quick to lose her temper and was inclined to an impulsively angry response to anything that she perceived as a threat or criticism. The mother has clearly fallen into a pattern of not so much standing up for herself in situations of conflict, but of going on the attack at the first sign of trouble.
The mother was cross examined about an incident with a former neighbour where she had called out rude and racist comments and made offensive gestures. She denied these specific allegations but agreed that there had been an argument between herself and the neighbours. The evidence suggests that the mother’s history has been one of arguments, disputes and conflicts where she has impulsively been verbally abusive and on some occasions has picked up a weapon to threaten. She conceded a tendency to overreact and that was evident by the way she gave her evidence in the witness box.
The mother seems to lack the ability to contend with difficult situations without becoming fired up. The situation then escalates. There have been many situations where she hasn’t known what to do and has taken a stand in a way that has been unhelpful to her. For instance, in May 2004 she lost a Department of Housing property when there was a warrant for possession. The mother’s explanation was that there had been termites right through the house, she’d notified the Department who had taken a long time to come out so she stopped paying the rent to get some attention. She had become concerned that the white ants, which she could hear in the walls at night, would start attacking her furniture. She agreed that it had been highly irresponsible to cease paying the rent when she had children to house. She said, as she did about other situations:-
“I didn’t know what to do, I would do it differently now.”
She agreed that there had been termination notices and warrants for possession of housing where she had been on five occasions. She said that when she was younger she hadn’t been particularly good about money management or paying the rent on time. I take this to be a reference to the fact that the mother lived out of home from the age of 14 years.
The mother agreed that she has bought alcohol regularly over the years. She had drunk alcohol with her former husband, mainly beer on weekends while he did his drinking also after work. She agreed that she had gone to the pub, both with him and without him, and that on occasions when she went to the pub with a girlfriend the children had stayed at home with the father.
The mother was cross examined about an incident involving the use of drugs, mainly marijuana. The evidence she gave was inherently unbelievable. She said a man had helped her and didn’t charge her for it. He threw drugs into her open bag, it had been the only time she had had drugs in her possession and on that one occasion she was stopped by the police and the drugs were found in her handbag. The mother was convicted of using the drugs, indeed pleaded guilty, as she said, to clear the matter out of the way.
In that same year there was a fire in the mother’s accommodation where she lost everything other than the family dog and the children’s trampoline. She said at that time she was sleeping in the lounge room and the two children had the use of the bedroom. She believes that her daughter, CP, came out of her room and turned on the heater and put a blanket on the floor to sleep beside her mother. The blanket caught fire and both she and CP received burns. The accommodation was in a granny flat at the back of her sister’s place. At that time the father assisted the mother with clothes and shoes and a bond on new accommodation. It is of some significance that the father had been in a relationship of this sort with the mother for six or seven years before they began living together in 2007. The father, through his counsel, was immensely critical of the mother. Nevertheless, he had known her throughout these incidents of eviction and misfortune and had come to her assistance. It seemed evident that the father had been genuinely fond of the mother and both the children, particularly CP:-
“I loved the kids to bits.”
but that after the final incident in April 2009 he was no longer willing to engage with the mother and regretted having done so.
The mother lived in a property which the father had helped her to obtain from 2005 until either 2006 or 2007. She had obtained employment at a factory. She became permanent in that job and was able to go off Centrelink benefits. However, she had mistakenly thought that her rent would continue to be directly deducted from her wages as it had been from her Centrelink benefit. Eviction proceedings commenced but the evidence of the mother was that the Tribunal accepted her explanation and said she could go back, however, she chose to take up her parents’ offer to live with them in order to save, rebuild and replace all that she had lost through the fire. She remained living with her parents from early 2007 until July 2007. She was able to purchase some things to replace what she had lost in the fire during that time. The relationship between herself and the father also continued during that time.
On at least three occasions counsel for the father asked the mother what time she would seek with N if the child was to live with her father. The mother found the utmost difficulty in contemplating extended periods of time away from the child but on the third occasion when counsel tactfully pressed her about the matter she said four nights of the week with her but if it had to be less than that Friday to Monday and dinners through the week. She became too distressed to answer the question about whether there could be alternate weekends.
I formed the impression of the mother that she has the capacity to understand relationships and to become emotionally engaged. She also has the capacity to obtain paid employment. Despite impulsive anger and over reactions at times, she has provided loving care for the child. However, the solid contribution of time with the father is needed to ensure stability for the child.
The mother started drinking alcohol when she was about 17 years and drank with friends from school after she had left home. Her parents were clearly disappointed that she left home at 14 years and there is no basis for knowing why that occurred. She has struggled to survive, particularly once her first marriage broke down leaving her with the care of her two young children.
The mother gave evidence that she moved into the father’s property at H in July 2007 on the basis that she would live there with the children but that he would not be living there and that he had moved in one week later and said to her:-
“You didn’t think I’d let you move in without me coming too” or words to that effect.
I do not entirely accept this evidence from the mother. It seems much more likely that the mother moved in with the father knowing that her family strongly disapproved and that it was really a choice between them and the father.
The proposition was put to the mother that before moving in with the father she had seen him banging his head, that he had been abusive to her, that he had been physically violent to her, and that she thought he was on steroids, that she had seen him using marijuana and that knowing all these things about him she had moved in with him with her two young children. She agreed to all of those propositions other than a proposition that she had seen the father taking steroids. She said she hadn’t seen that prior to him moving in. I am unable to make a finding about past use of steroids by the father.
The mother said she saw a change in the father within a week of them living together:-
“He behaved like a fruit loop from the beginning. I had been with [the father] for a long time, he was a good person.”
I accept that from the time the parties commenced living together their experience of each other was completely different to what it had been for the six years prior. The mother had found the father’s reactions threatening and hard to understand. The father found the mother’s temperament intolerable and was at a loss to understand her attitude to running a household.
The mother was asked whether she asked to move back in with her own mother. She said she had asked if her children could stay for awhile. Her mother had said the children could stay but she could not because of the father’s behaviour. At this time the mother became distressed in the witness box, she raised her voice, her speech was pressured, her answers became faster and her voice was quite loud. It seemed to me to be a reflection of the mother remembering how distressing it had been to move in to the property with the father only to find that they were incompatible.
The children did go to live with their maternal grandmother in October or November 2007 where they remained until January 2008. They then went to live with their father, Mr P. I accept that the mother moved her older children to her mother’s home and then to their own father’s home to protect them from the increasingly violent and abusive arguments that occurred between herself and the father. JP continues to live with his father. CP, on learning that her mother was pregnant in about March 2008, asked to return to live with her. She was permitted to do so.
The mother gave evidence that between June and December 2007 there were frequent periods of separation due to episodes of violence. I am unable to find who the instigator was or what events occurred but I accept there was an increasing level of violence between the parties and that the mother sought to protect her children from exposure to it.
In August 2007 the mother’s finger was caught in the car door. On the evidence of the father it was an accident. On the evidence of the mother it was a deliberate action by the father. I am unable to make a finding about that but there is an echo in that incident of what happened on the last day the parties lived together in April 2009 when each became so angry and aroused by a dispute that they were physically violent to each other, both wilfully and carelessly.
The mother says she put the children with her mother and would sleep in her car and the father would beg her to come back reassuring her that it would be alright. The mother was asked why she was then willing to leave the children with their own father, somebody she had described as a drunken abuser (of her). Her answer was as follows:-
“He drinks. I don’t like him particularly but he loves his kids and he looks after them. He’s stepped up at last.”
At this point the mother was tearful, her voice was loud, and she was shaking. There was a dramatic tone and towards the end she was shouting. This is another example of the mother apparently reliving the moment and revealing the emotions she had felt at the time of the relevant incident.
I also accept that the mother, at least on some occasions, was affected by alcohol during these arguments, probably prepacked bourbon and coke. There were increasing arguments about the cleaning of the house. The mother’s behaviour became disruptive and disturbed. There was an incident on 1 December 2007 where the mother was accused of writing offensive comments on the house of former neighbours with whom she had a dispute. The dispute involved whether or not these people had allowed the mother’s dog to get into their yard. The mother said she hadn’t done those things, that is write slogans on their house, but she had admitted to doing so on legal advice. She was convicted of malicious damage to the house and fined and ordered to pay court costs and compensation.
The mother’s lowest point came on 4 January 2008 when she lost her job. She was at that time staying in her car as a result of the parties’ arguments. At that point the mother says that the father said to her:-
“You can stay with me until you get on your feet.”
The mother returned to live with the father and in February or March became pregnant with N. At that point CP returned to live in the household.
The parties then lived together continuously until January 2009 when there was a separation and the mother went to live in a women’s refuge with both CP and N. This was the outing incident that the father gave evidence about. On that occasion the mother said that she had seen the father punch himself in the head, throw a can of baby formula which broke the kitchen window. Her evidence, as had been the father’s, was that he had rang his parents to say that she was “mental” and “an unfit mother”. The mother went to stay with N and CP in a motel overnight. She subsequently stayed in a refuge until the parties agreed to reconcile. As a result of the incident the mother says some firearms which the father had were confiscated by the police.
It seems likely that the only period of relative calm throughout the whole of the relationship between July 2007 and April 2009 was during the period of the mother’s pregnancy with N.
The mother has a bad record of driving a car whilst unlicensed and in an incident on 19 February 2008 she was pulled over for tailgating and found to be unlicensed. The mother undoubtedly overreacted and her behaviour was disgraceful. Her evidence was that she had wanted to communicate to the police that she had a problem with her lung and it was important that there be no pressure put on her back. She was clearly anticipating being arrested and probably handcuffed. She said one of the police officers had said to her, after this explanation, “I don’t give a fuck” and had laughed at her. Whether or not any such words were spoken, there is no excuse or explanation which could justify the mother doing what she did, which was to attack a policewoman and bite her on the breast breaking the skin. The mother agreed she had lost her temper and there can be no other explanation for such conduct. She was subsequently ordered to attend an anger management course, which she did.
There have been times when the mother has grabbed an instrument, in one case a golf club, and in an earlier situation with Mr P, a knife. On that occasion she said that Mr P had come to her home drunk during the night. He had broken in, she had grabbed a knife, stabbed him in the arm and said “get the hell away from me and my kids.” The children were not in the house at the time. She said she had received a black eye when Mr P broke into the home and she was not charged because the police accepted that this was self defence. On another occasion she had become involved in an argument with Mr P with a screwdriver in her hand.
The mother gave this evidence in response to a question:-
Q:“You are a person who is content to lay hands on a weapon to threaten.”
A:“Yeah, I do what I can. I haven’t known what else to do. The bastards grab you. Men are bigger than me. I can’t keep acting like this. I have two kids, 14 and 12 years old, who are growing up to be adults. I want them to be better people then me.”
In my view this is a reflection of the mother’s frustration at her own lack of skills and poor impulse control competing with her desire to protect herself and not to be injured at the hands of a stronger partner. When she was asked about the impact on her children, she said this:-
“When I’ve done them things they were scared too. They have looked to me for protection. I haven’t known what else to do. I wish this would end.”
I accept that the mother has always felt protective towards all of her children. It may well be the case that she has put them at risk by engaging in abusive and violent conflict either with Mr P or the father in front of them. She has wanted to protect them and has literally not known how else to go about it.
A further example of this is how the mother became involved in an incident between her daughter, CP, and an older girl who attended the local high school. This girl and her family were well known to the mother. CP is in primary school. The mother said that this older child and other girls were calling in at the primary school and shoulder barging CP and generally bullying her in the morning. The mother stated, with ever increasing frustration and distress in her voice, that she had spoken to the other child’s guardian about this conduct. She had also spoken to the headmaster at the high school where the older child attended who told her that there was nothing he could do outside school hours. She had gone to the primary school to see if the teacher there could assist. She had gone to Police and had asked for help from the Liaison Officer. She had finally resorted to confronting the girl herself. She had got out of her car and threatened the girl, probably by saying the following words or words similar to them:-
“Oiy, you fucking little slut. Don’t touch my daughter.”
At this point in the evidence the mother said she didn’t want to be in any more trouble, she just wanted to be a mum. She was at that point both crying and shouting.
Shortly thereafter an application was made to adjourn the proceedings. That application was denied for the reasons given at that time and the proceedings resumed.
The mother was cross examined about the day of separation and gave very similar evidence to that given by the father, that she had tried to prevent the father from taking the child out of the house on that day in April because the child had been upset and awake during the night and because it was cold outside. She was also concerned that the father appeared to be heading for his vehicle and that there was no child safety seat in that vehicle. She denied trying to take the child from the father’s arms but said she was trying to get him to stop and wrap the child up warmly, put a blanket over her, and not to take her in the ute.
The evidence of both parties confirms that the relationship was an exhausting, volatile and violent one in the experience of both parties and that each, in his and her own way, understood that it was destructive for themselves as well as for N and the older children.
Unfortunately, perhaps understandably, the father and his parents became ever increasingly critical of the mother and the mother was unable to communicate her legitimate concerns about N to them post separation. For instance, the mother did not consider it appropriate for the child to sleep in the same bed with her grandparents or with the father or with anyone else. In the mother’s clear view the child should sleep in her own bed and with no one else. The mother was incredulous that the paternal grandmother had allowed the father’s brother to sleep in the bed with herself and her husband until the boy was about seven years old. The mother simply was unable to understand why anyone would do that. Indeed, she was strongly critical of herself for having fallen asleep with the baby in bed because it was:-
“not the right thing to do.”
The mother also had strong views about the child’s diet and that if she developed constipation from time to time that should be addressed through diet. Again, the paternal grandmother had told the mother that she had used suppositories with her own children when that problem arose and the mother was quite horrified at the thought of that being done to N.
These concerns, which reflect legitimate differences of parenting style, were unfortunately communicated in this way: the mother’s evidence is that she said:-
“Don’t put [N] in your bed. I don’t want [the child] sleeping in your bed like your son did for seven years and can we look at what the child is eating before we put things up her arse.”
The mother said this at the door of her own home in an undoubtedly angry tone at a time when the paternal grandmother came to collect the child for a period of time with the father. The mother in her evidence went on to say:-
“I know they don’t like me. That’s okay. I can live with that. But if she (the paternal grandmother) could just give me five to ten minutes to just listen to what I need to say, she doesn’t listen to me, she doesn’t treat me like [N’s] mum. It’s like I’m invisible. We just need to be friends long enough to say things to each other about what’s been happening.”

In my view it was entirely understandable that increasingly the paternal grandmother simply wanted to come to the house, collect the child and leave, to avoid angry and abusive outbursts from the mother. However, I accept that the mother was attempting to communicate genuine concerns in the best way she could. Her way of going about it was inappropriate and ineffective.
The mother was extensively cross examined about the child having sustained a burn to her hand on 1 July 2010. The incident is set out in considerable detail in the mother’s Affidavit sworn 24 August 2010, paragraphs 134 to 160. The mother clearly felt tremendously guilty. The child had apparently climbed up onto a shelf where the mother had left a hot iron to cool down. The child touched the iron and burnt the palm of her hand. The mother was present in the home preparing food in the kitchen. The child had woken up from a sleep and then played about the house, both in the kitchen with her mother and in the lounge room with her older sister prior to the incident taking place.
The mother gave evidence that she blamed the father “25 per cent” for the injury to the child because he had encouraged the child to climb. The mother did not assist herself by taking this position. Clearly, as the mother of two older children, she was well aware that children of N’s age, then 20 months, start to be able to walk, run and climb without warning and require the supervision of an adult at all times. However, every step that the mother took after the burn was appropriate and thoughtful, including immediate treatment, which proved to be effective and removal to hospital. I find that the injury to the child was a failure by the mother to supervise adequately on that occasion rather than neglect. The mother let the father know and anticipated that he would be upset as of course he was. If it is the case that the father constantly reproached the mother repeatedly saying “how could you let that happen” on a great many occasions then that was not particularly well judged by the father, however, understandable.
Other than this serious incident, N appears to have been well cared for and is a well nourished and well developed child.

The Family Consultant, Ms G

Ms G gave evidence that unfortunately the sound system in the Interview Room had not been working on both occasions when the child was observed by her with different family members. Consequently Ms G had to remain in the room making notes while she made observations of the parents and other family members with the child. Had the sound system been working Ms G would have observed from outside the room. Ms G said that the child was conscious of her being there but Ms G was careful not to make eye contact to avoid engaging with the child and becoming part of what she was doing.
Ms G agreed that the paternal grandmother had said to her that the child was different to how she was when she spent time with them, that the child loved to be in the home of the paternal grandparents and didn’t want to leave. Ms G said she had taken those comments into account in describing the degree of attachment that she saw between the child and her mother and the child and her father.
Ms G said her observations of greetings and departures were a helpful way of assessing relationships between parents and others.
Ms G confirmed that the child was advanced for her age. She agreed with the proposition that the child’s advanced gross and fine motor skills would have come from effort by adults in play and the child not being left to her own devices. Ms G also agreed that high order speech development didn’t happen by chance, that children learn though verbal interaction with adults.
Ms G also agreed that the child was sociable, outgoing, not inhibited and that accordingly her social interactions must have been positive.
What the paternal grandparents and the father had referred to as “appalling neglect” was not consistent in the opinion of Ms G with her observations of the child’s developmental level or presentation.
Ms G said that the child was primarily attached to her mother. Her opinion was that changing the arrangements so that the child spent the majority of time with her father could disrupt her ability to feel secure and to be able to regulate her feelings and emotions:-
“She’s at an age where an enormous amount of learning is happening. Disruption to the attachment could disrupt that learning. It’s a very big risk.”
Ms G went on to say that language, cognitive development, social development and sense of self could all be put at risk and that taking away overnight contact with her mother could have a significant adverse affect.
The question of a change of residence was canvassed and Ms G’s clear view was that a change of residence would require great sensitivity and care by the parents and the grandparents and others involved in the child’s life, that everyone would need to be aware of her distress and bridge that gap for her.
Ms G’s view was that since the child had been spending Friday 5.00 pm to Sunday 5.00 pm each week with her father for over one year, she had adjusted to that situation but if there was too much time away from her primary carer, then the risk of affecting her would be greater.
The problem that Ms G identified was the conflict and negativity the parents have with each other. She expressed the view that it’s very important at N’s age for there to be one stable home with the parents needing to be flexible and cooperative. As the child got older she would be able to cope with more time away from her mother, her primary attachment.
Ms G was questioned about CP. She did not agree that CP had been parentified. This was in relation to CP’s assistance with changeovers. She felt that CP had wanted to protect her mother from a not very good situation and that although it would be better for an adult to do the changeovers, she had found CP quite mature. CP had apparently said to her:-
“Mum had a lot of difficulties and she does the best she can.”
Ms G had felt quite impressed by CP’s awareness of what was going on and her maturity of assessment. She agreed that it was of concern that CP had some alerts and warnings at school over school attendance and behaviour and that she may have intercepted letters from the school to her mother about that conduct. Nevertheless, I had the impression those matters did not affect Ms G’s assessment of CP.

The maternal grandmother

The maternal grandmother was cross examined briefly. She gave her evidence in a calm unemotional way. She confirmed that she had strongly disagreed with her daughter about her decision to move in to live with the father in July 2007. She said that her daughter could have stayed in her home if she had wished to.
As a result of the disagreement, mother and daughter fell out. Indeed, the mother did not see her own mother again, other than on one brief occasion, until early in 2009.
The maternal grandmother said that she first saw N when she was three or four months old and that her daughter had started to come to her home to show her the child. She understood this was opposed by the father. She described her daughter as:-
“very nervous and had taken off within 15 minutes of a call (from the father).”

The Law

Section 61DA

I must apply a presumption that it is in the best interests of the child for her parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of a child has engaged in:-
2(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or;
2(b) family violence.
In this case there has been family violence, the consequences of which are still being dealt with in another Court. In this case, even if the presumption did apply, I consider that it would be rebutted by the evidence of the:-
a)high level physical and emotional conflict between the parties;
b)poor communication between the parties which is unlikely to improve, at least in the short term (s 61DA(3))
I consider that each parent should retain the parental responsibility which arose by law when the child was born (s 61C).
Order 2 is directed to ensuring that a major long term decision is not made by either parent without the knowledge or input of the other.
In deciding whether to make a particular parenting order in relation to this child I must regard the best interests of the child as the paramount consideration (s 60CA).
In determining what is in a child’s best interests I must consider the matters set out in sections 60CC(2) and (3).

Section 60CC(2)(a) The benefit to the child of having a meaningful relationship with both of the child’s parents

N does have a meaningful relationship with both her parents. She has her primary attachment to her mother and is thriving in the care of both parents.

Section 60CC(2)(b) – the need to protect from physical or psychological harm

N has been exposed to family violence during the time when her parents were living together and there is a need to ensure that she is not exposed to the potential psychological harm arising from such exposure to violent and abusive conflict between her parents.

Section 60CC(3)(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

N is just two years old. She does not have sufficient maturity to understand the situation she is in.

Section 60CC(3)(b) The nature of the relationship of the child with:

each of his or her parents; and
other persons (including any grandparent or other relative of the child)

N has a warm and loving relationship with each of her parents. She is assessed to be primarily attached to her mother. She also has warm and loving relationships with her paternal grandparents and with her half brother and sister, JP and CP.

Section 60CC(3)(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

The parents each understand the need for N to have a close and continuing relationship with the other parent. There has been compliance with the interim Order which has allowed N to spend weekly time with her father, including overnight time, and to develop the stable and confident bond she has with him.
The father seeks residence and is reluctant to agree to the child spending overnight time with her mother if she lives with him. The father is being protective of his daughter but has not sufficiently weighed the impact on N of such a change to the relationship between herself and her mother.

Section 60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

a) either of his or her parents; or

b)any other child, or other person (including any grandparent or other relative of the child), with whom they have been living

N is likely to be adversely affected if she is separated, especially abruptly, from her mother and to a lesser extent from her sister and brother. She would also be adversely affected by a reduction of time spent with her father.
N will be assisted by having alternate weekends with her mother; at the same time continuing the two day per week pattern with her father.
To do other than to slowly increase the time that N spends with her father would be to run the risk of disrupting her attachment to her mother and destabilising her relationship with her father.

Section 60CC(3)(e) the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

N has been moving between the respective homes of her parents for almost 12 months and there are no practical difficulties to her having contact with both parents on a regular basis.

Section 60CC(3)(f) The capacity of the child’s parents and any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs

The mother has a capacity to provide for the physical needs of the child. She has shown an inability to control her own behaviour in order to protect the child from exposure to frightening conflict. However, when she is not under threat the mother clearly has the ability to engage with the child in a warm and lively way. The mother would benefit from therapy which assisted her to moderate her behaviour. This benefit would flow on to the child.
The mother has had a limited capacity to provide for the financial needs of the child but it is likely that once the child is at pre-school or school the mother will again find work which will enable her to become more independent and will expand her capacity to provide for the child’s needs at every level.
The father has the capacity to provide for the physical needs of the child with the assistance of his extended family, especially his mother. He also has the capacity to meet her emotional needs although he has underestimated the strength and importance of the relationship between N and her mother.
Both parents left school at aged 14 or 15 years, however, I have no doubt they will both encourage the child at school and support her in obtaining an education to whatever level she is capable of. The early signs are that the level will be a high one.

Section 60CC(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

N is a two year old girl. She will be bilingual in English and Italian. She is part of an extended paternal family of Italian heritage where she is greatly loved and beautifully cared for.
N is also part of a family that consists of herself, her mother, and her teenage brother and sister. Her sister, CP, is particularly close to her. Her maternal family identifies as Aboriginal.
N is doing exceptionally well in terms of her language, fine and gross motor skills and social skills. Despite the tumultuous relationship of her parents she has thrived.

Section 60CC(3)(h) If the child is Aboriginal or Torres Strait Islander

The mother identifies as Aboriginal through her great grandmother. The mother sets out relevant historical matters in paragraph 113 of her Affidavit sworn 24 August 2010.
The mother has raised JP and CP with a knowledge of their Aboriginal culture and history. The mother says both children have attended Aboriginal study classes at their Primary School over a period of 12 months. Both the children participate in Aboriginal music and dancing. It is the mother’s intention to raise N with a knowledge and understanding of her Aboriginal culture and heritage.
The father revealed in his evidence a willingness and interest in assisting the child to learn about her Aboriginal culture through reference books and attendance at museums and other places at a time when she expresses interest in the meaning of her own Aboriginality and the history of her culture.
I consider that the Orders made will have a positive impact on the ability of this child to access and participate in her Aboriginal culture.

Section 60CC(3)(i) The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

The mother has shown responsibility in caring for the child, however, she needs to seek further assistance in learning to control impulsive anger and outbursts involving third parties and figures of authority, such as police and government officers. This behaviour is a poor role model for the child as she grows.
The father has shown a commitment to the child and has provided in terms of clothes and food of his choosing but very little in money that the mother could use for those needs that are not met by the choices of the father. More direct financial support in my view would increase trust and confidence between the parties.

Section 60CC(3)(j) Any family violence involving the child or a member of the child’s family

There is an Apprehended Violence Order in force for the protection of the mother. There are ongoing proceedings in relation to an Appeal by the father against his conviction for charges arising out of the incident that occurred at separation in April 2009.

Section 60CC(3)(k) Any family violence order that applies to the child or a member of the child’s family:

See above.

Section 60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

The Orders provide for a gradual increase in time between the child and her father with the introduction of block holiday time after she is established at school.

Section 60CC(3)(m) Any other fact or circumstance that the court thinks is relevant

N would be most assisted by an improvement in the relationship between her parents, especially in their ability to communicate about issues involving the child without anger and over reaction. Any course or program that the parents attend which would assist them to understand the perspective of a very young child in their conflict would greatly assist the child.

Section 60CC(4a) If the child’s parents have separated, the court must, in applying subsection (4) have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred

Each parent has fulfilled their responsibilities as a parent. The parties have been compliant with interim Orders to the benefit of their daughter. There has been discussion about longer term issues and the mother appropriately deferred her plan to enrol the child in pre-school. Appropriate because of the concerns and fears of the father.

Conclusion

The Orders provide for the child to continue to live with her mother and to have increasing periods of time with her father.
N will be assisted if her parents are not openly critical of each other and members of the respective extended families. It would be of immense benefit to the child as she grows up to see her parents talking to each other in a polite and co-operative way.

I certify that the preceding one hundred and forty nine (149) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 19 November 2010.

Associate:

Date: 19 November 2010

[2010] FamCA 1031

19 November 2010

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Jurisdiction

Procedural Fairness

Remedies