Hardie and Katona
[2018] FCCA 3015
•26 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HARDIE & KATONA | [2018] FCCA 3015 |
| Catchwords: FAMILY LAW – Parenting – final orders – one child aged 5 years – competing live with applications – where mother has always been primary carer – where there is a lack of stability in the mother’s care regarding housing and schooling – where the mother’s partner has a serious mental health condition and violent criminal history – where the mother has shown poor parental role modelling – best interests of child. |
| Legislation: Family Law Act 1975 (Cth), pt.VII |
| Cases cited: Goode & Goode (2006) FLC 93-286 MRR & GR (2010) FLC 93-424 |
| Applicant: | MR HARDIE |
| Respondent: | MS KATONA |
| File Number: | NCC 230 of 2016 |
| Judgment of: | Judge Betts |
| Hearing dates: | 24, 25 and 26 September 2018 |
| Date of Last Submission: | 26 September 2018 |
| Delivered at: | Newcastle |
| Delivered on: | 26 September 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Davies |
| Solicitors for the Applicant: | Stacks - The Law Firm |
| Counsel for the Respondent: | Mr Mueller |
| Solicitors for the Respondent: Solicitor Advocate for Independent Children’s Lawyer Solicitor for Independent Children’s Lawyer | Paul Stubbs Law Office Ms O’Rourke Legal Aid NSW, Port Macquarie |
ORDERS
Based on the draft order which is provided to me from the Independent Children’s Lawyer:
All previous parenting Orders are discharged.
That the Father have sole parental responsibility for decisions relating to the child, [X] born 2013.
That in the event that the Father makes a major decision in relation to the following:
3.1[X]’s education;
3.2[X]’s medical care;
3.3Relocating [X] within a 50km radius of his current residence
Then the Father shall notify the Mother, in writing (with writing to include text messages), within 14 days of making such decision, and the Mother shall have 14 days to reply in writing with any view she holds in relation to same.
The child, [X], shall live with the Father.
That from the date of these orders, [X] shall spend time with the Mother, as agreed in writing, but failing agreement as follows:
5.1During school terms, each alternate weekend from 5.00pm on Friday until 4.00pm on Sunday;
5.2In the event the Mother is living in the Town A locality then [X]’s weekend time with the Mother will extend to commencement of school on the Monday and being the first weekend of each school term;
5.3In the event the Mother is living in the Town A locality, then [X] will also spend time with the Mother on the alternate Monday from after school until Tuesday commencement of school.
5.4During school holiday periods for half of the April, July and September school holidays with such halves to be the first half in even numbered years and the second half in odd numbered years.
5.5During 2018 and 2019 for half of the Christmas holidays with the parents to have [X] in their care for one week alternating blocks.
5.6Thereafter, for half of the Christmas school holiday periods with such halves to be the first half in even numbered years and the second half in odd numbered years.
5.7For the purpose of these Orders the school term and Christmas school holidays are deemed to commence at 9am on the first day after the public school term ceases and changeovers shall occur at 4.00pm on the day in the middle of the school holiday period or, in respect of order 5.3 at 4.00pm on each Sunday.
5.8In the event that the Mother’s weekend falls on a long weekend then the Mother’s time shall end at 4.00pm on the Monday after the long weekend.
In addition to the time that [X] spends with the Mother as set out in order 5 on the following occasions of special significance [X] shall spend time with the parties as follows:
6.1That notwithstanding any other order the Mother shall have care of [X] from 2pm on Christmas Eve until 2pm on Christmas Day in even numbered years and from 2pm on Christmas Day until 2pm Boxing Day in odd numbered years.
6.2That notwithstanding any other order the Father shall have care of [X] from 2pm on Christmas Eve until 2pm on Christmas Day in odd numbered years and from 2pm on Christmas Day until 2pm Boxing Day in even numbered years.
6.3The person who does not otherwise have care of [X] on their birthdays will spend time with [X], from after school until 6pm if it is a school day or from 2pm to 5pm if it is not a school day with such time to take place within 20kms of the parties’ residence that [X] is in the care of at the time.
6.4If Mother’s day falls on a day when the Mother does not otherwise have care of [X], the Mother will have care of [X] from 5.00pm on Friday until 4.00pm on Sunday notwithstanding any other order.
6.5If Father’s day falls on a day when the Father does not otherwise have care of [X], the Father will have care of [X] from 5.00pm on Friday until 4.00pm on Sunday notwithstanding any other order.
6.6The parties will both be entitled to attend all events involving [X], including:
6.6.1Sporting fixtures;
6.6.2Extra curricular activities that allow for parental attendance;
6.6.3School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions
And the parent who has [X] in their care on the day of such activity will be responsible for their day to day care at such event and [X]’s transportation to and from the event.
6.7That for the purpose of [X] spending time with the Mother, the Mother shall collect [X] from the Town A (store) at the commencement of her time with him, and the Father shall collect [X] from the Town B (store) at the conclusion of the Mother’s time with [X].
That [X] shall have the following communication with each parent:
7.1Telephone conversations with the Mother between 4.30pm and 5.30pm on each Tuesday and Saturday in the week that [X] does not spend with the Mother.
7.2Telephone conversations with each parent as [X] shall request and the other parent will facilitate that phone call.
7.3Each parent will give [X] privacy while he is talking to the other parent.
Each party shall ensure the other is kept informed of the following within a reasonable time:
8.1Any medical problems or illnesses suffered by [X] while in the other’s care;
8.2Any medication that has been prescribed for [X];
8.3Any social or school function [X] is to attend;
8.4Their residential address, phone number and email address including any change to the same;
8.5Any other matter relevant to [X]’s welfare.
That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of [X] and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of [X].
The parties are restrained by injunction from physically disciplining [X], or permitting any other person to physically discipline [X].
The Mother is restrained from allowing [X] to have contact with Mr M except in the company of another adult. This restraint operates unless and until the Mother provides the Father with a copy of:
(a)A report from a psychiatrist that Mr M has been compliant with his prescribed medication for a 6 month period and that he is in remission of his mental illness;
(b)Every 6 months thereafter a further report from a psychiatrist that he has continued to be compliant with his prescribed medications and remains in remission of his mental illness.
Both parties do all acts and give all irrevocable authorities necessary to [X]’s treating doctor(s), and any specialist doctors he may attend from time to time, in order to permit both parties to communicate with the doctor or specialist and to obtain copies of the child’s medical records as required.
In the event [X] requires medical treatment, the resident parent will notify the non-resident parent as soon as practicable to advise where [X] is being treated, details of the treating practitioner and any diagnosis.
Each party is hereby authorised to obtain from [X]’s school all notices, letters, school reports and invitations and to attend parent/teacher interviews, and attend all other extra-curricular and sporting activities that the child attends.
Both parties will facilitate the child’s attendance at any sporting or other extra-curricular activities in which the child is enrolled provided that the child shall not be enrolled in any activity to take place in a parent’s time without that parent’s consent.
In the event of a party changing their residential address or telephone number, they shall notify the other of any change to these details within 48 hours.
Either party shall be permitted to travel with [X] outside the Commonwealth of Australia under condition that:
(a)The travelling party provides the other party with not less than 30 days written notice of his/her intention to travel with [X] outside the Commonwealth of Australia;
(b)The total period of travel does not exceed 21 days, unless otherwise agreed by the parties in writing;
(c)Such travels occurs, as much as possible, during [X]’s school holiday periods, or as otherwise agreed in writing;
(d)The travelling party provides the other party with written details of the proposed travel with [X] including;
(i)Dates of departure from and return to Australia;
(ii)A copy of the proposed itinerary;
(iii)A copy of the return airline tickets for [X];
(iv)A copy of all visa applications and a copy of any visa issued [X] for any country (so requiring a visa) to which they are travelling;
(v)Details of who will accompany [X] at all/any time throughout the proposed travel;
(vi)Details of how [X] can be contacted whilst away from Australia, including contact telephone numbers, the address at which the children will be staying, and the names of the hotel, motel and/or person with whom [X] will be staying.
(e)The parties arrange for the Mother to have make up time with [X] to compensate the Mother for any contact that does not occur in accordance with the Orders due to the overseas travel of the Father.
As a condition of [X] living with the Father under these Orders, the Father is to enrol in a Parenting after Separation course within three (3) months, complete same within twelve (12) months and provide a copy of the certificate of completion to the Mother.
As a condition of [X] spending time with the Mother under these Orders, the Mother is to enrol in a Parenting after Separation course within three (3) months, complete same within twelve (12) months and provide a copy of the certificate of completion to the Father.
That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
The Independent Children’s Lawyer is discharged.
All extant applications are dismissed
The proceedings are removed from the Active Pending Cases List.
IT IS NOTED that publication of this judgment under the pseudonym Hardie & Katona is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 230 of 2016
| MR HARDIE |
Applicant
And
| MR KATONA |
Respondent
REASONS FOR JUDGMENT
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons more readable.
Background:
These are parenting proceedings brought pursuant to the provisions of Part VII of the Family Law Act (“the Act”).
The child the subject of these proceedings is [X], born 2013. [X] is presently five (5) years and six (6) months old.
The applicant in these proceedings is [X]’s father, Mr Hardie (“the father”). He seeks orders that [X] live primarily with him in Town A.
The father’s circumstances are that he works in a (occupation omitted) role at (employer omitted) at Town A. He lives in Town A in a self-contained section of a home owned by the paternal grandparents. He is presently paying off debts and plans to save money to buy a home in the future. He is in a relationship with Ms J, the two of them having been together since approximately 2014, although they do not live together.
The respondent in these proceedings is [X]’s mother, Ms A (“the mother”). She seeks orders that [X] stay living in her primary care. It is common ground that the mother has always been [X]’s primary carer.
The mother’s circumstances are that she is married to Mr M and, together, they live in Town C in a home rented by the maternal grandfather. The mother does not work outside the home, but she is engaged in a full-time basis as a mother, not just to [X], but to all of her children. From oldest to youngest those children are:
(a) [A], born 2008. [A] suffers from attention deficit hyperactivity disorder and/or attention deficit disorder. [A]’s father has no relationship with her;
(b) [B], born 2010, who has some behavioural issues. [B]’s father has no relationship with him;
(c) [X], the child of the proceedings, is the third child in the sibship;
(d) [C], born 2018. [C] is the daughter of the mother and Mr M.
Mr M is a disability support pensioner consequent upon a medical diagnosis of paranoid schizophrenia, being a condition that he appears to have suffered from for a very long time. He is unable to work outside of the home and requires regular medication including fortnightly injections in order to manage his condition. He has previously had to undergo involuntary treatment at mental health facilities.
[X]’s parents were in a relationship between 2011 and 2014. After they separated, [X] stayed in the mother’s primary care, and it appears that the father’s time with [X] was inconsistent. The mother was initially resistant to participating in mediation in relation to [X], but the parents later agreed upon a parenting plan whereby the father spent some time with [X] each week and some overnight time in the other week. Regrettably, those arrangements broke down.
Later, in March 2015, the parents entered into another parenting plan following a further mediation. A copy of that parenting plan is annexure “C” to the mother’s trial affidavit in these proceedings. Pursuant to that plan [X] was to live with the mother and spend time with the father in a graduated arrangement. In particular, from March to September 2015: in week 1, on Monday from 12.00 pm to 3.00 pm; and in week 2, on Sunday from 12.00 pm to 3.00pm, and Monday from 12.00 pm to 3.00 pm. From September 2015 for the following six (6) months the father was to spend time with [X]: in week 1, on Monday from 9.30 am to 3.30 pm; and in week 2, on Sunday from 9.30 am to 3.30 pm, and Monday from 9.30 am to 3.30 pm. The parents also agreed that the father would spend such further or other time with [X] [X] as they might agree.
That parenting plan also broke down.
One difficulty that arose in terms of implementing the parenting plan is that the mother was effectively evicted from her rental home at Town A, where she was living at the time of the plan and where handovers pursuant to the plan were supposed to occur. The mother was evicted due to damage to the property and because she owed outstanding rent. She subsequently moved away to Town C.
The mother’s evidence is that the father was somewhat stubborn about her move and still required that handovers occur at Town C notwithstanding that she no longer lived there, and that she had other children to care for. Her evidence was that the father did not go to Town C. However, I am comfortably satisfied on the evidence that the father did go to Town C on occasions. I am also satisfied that, on occasions, the father put his foot down, as it were, and insisted on handovers at Town C in circumstances where this caused the mother some inconvenience.
In any event, the arrangements broke down.
These proceedings:
The father commenced these proceedings in January 2016.
In the course of these proceedings an Independent Children’s Lawyer (“ICL”) was appointed and a family report was ordered. Interim orders have been made, pursuant to which the father spends four (4) nights per fortnight with [X] as a regular arrangement.
The matter has come on before me for trial this week with each parent seeking orders that [X] live primarily with that parent. The Court has been assisted by the legal representatives in this case, and particularly would acknowledge with gratitude the assistance of Mr Mueller for the submissions he has made on behalf of the mother, he having vigorously put her case throughout; Mr Davies, on behalf of the father, who has done likewise for his client; and Ms O’Rourke, who has vigorously represented the interests of the child on behalf of the ICL and whose assistance is also appreciated.
Material relied upon at trial:
At trial, the father relied upon his Amended Initiating Application filed 17 December 2017, his Notice of Risk filed 2 February 2016, his trial affidavit filed 10 September 2018, the affidavit of Ms J filed 10 September 2018, the affidavit of Mr J (the father’s brother, [X]’s uncle) filed 10 September 2018, the affidavit of Mr R (the paternal grandfather) filed 10 September 2018, and the affidavit of Ms D (the paternal grandmother) filed 10 September 2018. The father had also filed a Case Outline Document for trial.
At the commencement of the hearing, the father also provided to the court a voluminous folder of documents – being the annexures referred to in the father’s trial affidavit. In these reasons I will refer to those documents as relevant.
At trial, the mother relied upon her Amended Response filed 30 August 2018, her trial affidavit filed 30 August 2018, and the affidavit of Ms T (being Ms T’s mother) filed on 31 August 2018. The mother had also filed a Case Outline Document for trial.
The ICL relied upon the Child-Inclusive Conference Memorandum of 7 August 2018 and the Family Report of Family Consultant Ms C of 27 March 2018 - the latter being marked as an exhibit in the proceedings. The ICL had also filed a Case Outline Document for trial.
I have had the advantage not only of considering all of this material, but also observing the witnesses give their evidence in the witness box, the manner in which they answered questions, the answers that they gave.
I have also had the advantage of considered submissions made on behalf of all of the parties.
Observations of the witnesses:
The father:
The father was the first witness to give evidence at trial.
My impression of the father is that “still waters run deep”. I detect that he harbours some bitterness at the mother in relation to what he says are the past parenting arrangements for [X] and, particularly, his suggestion that the mother at times excluded him from being involved in [X]’s life.
He appears to have adopted a somewhat difficult approach to communication in that he requires the mother to text him, rather than ever speaking to her on the telephone. He takes this position because I accept that, from his perspective, he considers that the mother is dishonest, and he doesn’t trust her.
I, too, have some concerns about the reliability of what the mother says, and I will turn to those matters later.
The father was cross-examined in relation to his interrogation or attempted interrogation of [X] following visits with the mother. In my view, the father’s attitude in this respect is a cause for concern. Played in court, as exhibit F-3, was a video in which the father cross-examines [X] at length in March 2017. I should add here that this was at a time when [X] was four (4) years old. [X] appears to be giggling and fairly light-hearted throughout, but the father continually probes him in relation to whether he is witnessing inappropriate behaviour in the mother’s home, including asking him whether the mother was hitting Mr M, and whether Mr M had smacked him. Interestingly, [X] says in the video that Mr M never smacked him, but he did say at one point that the mother and Mr M had been smacking each other.
In the video the father also questioned [X] about the suggestion that his older brother [X] had thrown a knife at him. To put this into context, the father’s evidence is that [X] had allegedly done so, the knife apparently having a black handle. The mother’s evidence is that [B] had only thrown a plastic Play-Doh knife at [X]. In any event, I could discern no distress or concern whatsoever from [X] in that video.
The only thing about the video that particularly stands out to me is that it is evidence of the father interrogating his son. I do not consider his behaviour to be appropriate on this occasion; it showed a lack of insight, and it would concern me if the father considered this to be appropriate behaviour going forward.
The father was also cross-examined about his evidence that on one (1) occasion he had allegedly observed bruises all over [X]’s body. This alleged event does not appear in the father’s supposedly comprehensive journal of relevant events which constitutes part of his folder of affidavit annexures. This I find surprising if in fact the father treats it as a serious matter.
The existence of that journal rather gives me the impression that the father has been evidence-gathering against the mother for some time.
To be fair to the father, there are some reasons for his evidence-gathering behaviour. In particular I note his concerns about the mother’s past history of instability in housing, issues around the mother’s exposure to family violence in other relationships, and particularly the father’s concerns that arose in relation to [X] allegedly telling him in August 2017 that some bruising on his right lower leg was a direct result of having been smacked by Mr M.
But in relation to this latter point, I was concerned about the father continuing to take [X] to medical practitioners in relation to apparent growing pains, seemingly in an effort to try to establish that Mr M’s actions were the cause. The father persisted in taking [X] to medical practitioners despite receiving medical advice that the pains were innocent growing pains.
In short, I have some concerns about the father’s attitude in relation to parenting that arise out of the cross-examination.
One other matter that arose in the course of the father’s cross-examination is that it is quite apparent that he has “second-guessed” the mother in relation to medical and occupational therapy assessments for [X]. This reflects a lack of trust on his part and, perhaps, also some evidence gathering. What is regrettable is that [X]’s treatment has involved the duplication of services by doctors and allied professionals.
Apart from the above concerns about the father’s parenting, I should record that I am comfortably satisfied that the father deeply loves his son, that he is devoted to him and that he would not be here, having taken this proceeding all the way to a final hearing, if he did not genuinely consider that it was in [X]’s best interests to live with him. Subject to the concerns I have identified about his evidence, I find him, generally, to be a reliable witness.
Ms J:
Ms J was cross-examined.
Her evidence is, relevantly, that she has been cautiously progressing her relationship with [X] because of a concern arising, in her mind, as a result of the past threats, verbal abuse and threats of violence towards her by the mother and her associates.
She gives evidence of a telephone call that the father had with the mother in which the mother tried to intimidate the father by saying that she knew the biggest drug lords in Town A, that they were going to come and break the father’s kneecaps and Ms J’s kneecaps. The mother’s comments were:
They break the kneecaps because you can’t fix them.
Her evidence was that although she was not a party to the telephone conversation, she heard what was said because the father held up the phone for her.
I accept Ms J’s evidence, and find that the mother did make the threat, as she deposes.
I was impressed with the evidence of Ms J. I considered her to be an honest and reliable witness doing her best to assist me in these proceedings.
Another issue raised by Ms J in her affidavit, which partly explains the slowness of the development of her relationship with [X], is that she received an ominous and threatening Facebook message. This message is annexed to her affidavit. Her evidence is that although the Facebook message came from an anonymous profile, Ms J considers it abundantly clear that the mother made the threat using a fake profile, or using the fake profile of one of her friends. Relevantly, the threat reads thus:
Friendly reminder to stay away from [X] or you will get hurt. You have no business with that boy, and you’re only taking his father away from him. Go back to being the town slut, like everyone knows you are. Mr A even told Ms Katona [the mother] what you and your family do or how you root and boot every guy. Stay away from [X], and go back to riding your town bike instead of ripping families apart. Understand, you’re not wanted near [X], and you mean shit to [X].
45. And so the message goes on. I accept that Ms J received this message. In all likelihood, it came from the mother or from somebody close to the mother. And although no threat was ever executed, as such, it is common ground that in July of 2015 the mother had telephoned the father to tell him that there were people who were going to break his and Ms J’s kneecaps, apparently due to Ms J having:
…ripped off a drug dealer in Town A-
It is common ground that the mother rang the father, and told him that:
…head people –
or, perhaps –
…the biggest drug dealers in Town A…
had contacted her to tell her that Ms J had ripped them off and that there would be consequences.
In my view, the mother did make a clear threat to the father on this occasion. And there is no evidence before me, whatsoever, that Ms J has been involved in the illicit drug scene.
This causes me concern that either:
(a)the mother knows people who are involved in the drug scene; or
(b)she doesn’t, but was nonetheless willing to issue an empty, bullying threat of that nature.
In either event, this Court is concerned about that conduct. It does the mother no credit whatsoever, particularly in circumstances where, I might add, she had herself re-partnered after separation, and one of her partners was using illegal drugs. Her behaviour was not only threatening but also hypocritical.
I am impressed with the evidence of Ms J.
Mr J:
Mr J was required for cross-examination at trial, but he was ultimately not asked any questions.
Having reviewed his unchallenged affidavit, I am confident that he is a much-loved uncle to [X] and that he holds [X] in very high regard. I note his evidence that he was “elated” to become an uncle, and I accept that evidence.
Mr J maintains communication and contact with [X], which is no doubt beneficial to [X].
Mr R:
Mr R (the paternal grandfather) was not required for cross-examination, and I also accept his unchallenged evidence.
There is no doubt in my mind that the paternal grandfather is a loving and much valued family member to [X].
Ms D:
The paternal grandmother, Ms D, was cross-examined at trial.
She gave evidence that she felt betrayed by the mother - in particular her evidence is that she had loaned the mother over $1,000 that had never been repaid. I accept the genuineness of Ms D’s evidence in that respect. The mother’s failure to make repayment would be consistent with other evidence before me as to the mother’s history of running up unpaid debts.
I have little doubt that the paternal grandmother was disappointed in the mother for her conduct in this regard, but obviously, there are much bigger issues in a case such as this than the payment or non-payment of a $1,000 debt.
Interestingly, the paternal grandmother confirmed that [X] apparently does not misbehave when he is at the father’s home. One possibility is that [X] is trying to impress them. But I’m not sure that I can really draw any conclusion about that.
Although the paternal grandmother gives evidence of seeing other bruises on [X], I do not accept that they were a cause for any concern, otherwise they would have been referred to more fulsomely in her material.
I consider that the paternal grandmother is a protective influence for [X], and that she can provide support to the father. However, like the father, she too needs to be aware of the limits in terms of questioning [X] about his home life with the mother. In my view, excessive questioning of a child about what happens in the other parent’s household can constitute emotional abuse.
The mother:
The mother was cross-examined at trial, and in many ways I was unimpressed by her evidence.
The mother had a distinct theme of “playing the victim” in circumstances where she should, perhaps, have simply admitted to her own conduct.
One such example is in relation to her admitted consistent contact with the police and the Courts in relation to driving offences. She has a woeful driving history for somebody so young and who has had a drivers licence for such a short time. Of concern to me is that she was twice on the one day pulled over for disqualified driving on 29 February 2016. Her evidence is that on the first occasion the police officer told her that she had to ring SPER to pay some money towards a debt that she owed, and that they would then lift the relevant licence restriction. She says that she contacted SPER and made an appropriate arrangement. A short time later, the same police officer pulled her over and charged her again with disqualified driving. The mother effectively said that she was the victim of poor advice from the police officer - but the mother’s version of events beggars belief. It requires me to accept that the police officer gave her wrong advice the first time he pulled her over and was then mean enough to charge her again on the same day when she had already done what she was meant to do in reliance upon his advice. In my view, the mother was simply flouting the law. I do not accept her evidence about what occurred. As indicated, her traffic history is woeful.
The mother was not forthcoming in relation to her relationship with Mr M. Mr M told the Family Consultant in the Child-Inclusive Conference Memorandum that, after reconnecting on a dating website, he and the mother had started living together essentially straightaway. Yet the mother’s version to the Family Consultant was that she and Mr M were not living together in a de facto relationship.
I was unimpressed with the mother’s evidence as to the education of the children. According to exhibit ICL-6, [A] has attended seven (7) schools in a four-year period. [B] has attended five (5) schools.
In the period between July 2016 and February 2018, [A] missed seventy-three (73) days of school and [B] missed ninety (90) days of school. These figures does not include partial days absent. In the case of partial days absent, [A]’s total eighteen (18) and [B]’s twenty-five (25).
It surprised me that when confronted with this evidence in the witness box, the mother’s first reaction was to try to justify these absences on the basis of medical, dental or other sound reasons.
These school absences cannot be justified. This court does not accept that they are justified. They are grossly excessive. The mother should have, in my view, properly conceded this instead of dissembling and suggesting that there was a valid excuse for the absences when there clearly wasn’t. The school had recorded the absences as being largely unjustified, and yet the mother’s evidence was that she had informed the school about the allegedly valid reasons for the absences. Whatever the mother may or may not have told the school in relation to such absences, I found the mother’s evidence on this issue unconvincing and unimpressive.
Likewise, I was unimpressed with the mother’s attitude towards Ms J. In my view the mother harbours some resentment towards Ms J. Indeed, right up until the Family Report interviews the mother’s position was that Ms J should spend no time, or only very limited time, with [X]. The mother in fact said to the Family Report writer that Ms J was not allowed to see [X], which was plainly untrue. In the witness box the mother conceded that she had now had no concern about Ms J, but the mother only took that stance literally at the “eleventh hour” in these proceedings.
In relation to the threat against Ms J that is referred to as a Facebook threat and annexed to Ms J’s affidavit, the mother admitted that she knew Mr A, who is referred to in that Facebook message as apparently being the source of some of the adverse information about Ms J. There are a number of strong indicators from that Facebook message that it was posted by the mother or by somebody close to her. The mother can offer no alternative explanation as to who it might have been who would send such an aggressive, inappropriate, threatening message. I do not accept the mother’s evidence that she knows nothing about it.
I do not accept the mother’s evidence in relation to her conviction for a dishonesty offence. Her evidence is that she owed $100 to a boarding kennel in relation to her dog, and that the kennel operator told her that she was going to put the dog down if the mother couldn’t pay the outstanding fees. I accept that the kennel operator did threaten to put the dog down, this evidence being consistent with the relevant exhibit that was tendered - but the difficulty for the mother is that the Magistrate who sentenced the mother ordered her to pay compensation of $752.50. This is a lot more than the $100 to which the mother admitted, and inconsistent with the mother’s evidence. I add here that the mother is the only person in this courtroom who personally knows what happened, yet her version of events in relation to the amount of the debt is not credible.
I was unimpressed with the mother’s evidence about the photographs of [X]’s bruising. Her suggestion that [X] injured himself on multiple occasions on the one day at a skate park, as a result of a skateboard striking him on the leg and then subsequently falling over and injuring himself with a scooter, in my view, seems unlikely. It requires me to accept that the child continued to engage in skateboarding or scootering having seriously injured himself on a multiple occasions.
The mother was forthcoming in the witness box to some extent in relation to Mr M’s mental health status, although in giving the evidence she did, it became painfully apparent that she had grossly downplayed his condition when discussing it with the Family Report writer and with the Family Consultant who prepared the Child-Inclusive Conference Memorandum.
I accept that the mother has recently addressed the schooling issue in relation to [B] and [A], and she has turned things around significantly in recent times. According to the school reports that are tendered on her behalf, the children have not missed school recently, and they seem to be doing well. The fact that they are doing so well is probably a reflection of their natural ability, because it seems to me that their success at this point has been achieved in spite of their inadequate past school attendance.
Ms T:
Ms T was not required for cross-examination in this case.
I accept from her unchallenged affidavit evidence that she is a supportive person to the mother, and that she provides her with some assistance, and has no doubt developed a relationship with [X] and the other children. She is a protective factor for [X] while he is in the mother’s household.
Family Report writer:
Ms C, the Family Consultant who authored the Family Report, was cross-examined at trial.
Her Family Report was, in my view, quite comprehensive. Her oral evidence, consistent with her report, was that she considered it to be in [X]’s best interests that he live with his father. She considered that [X] would cope with any change, noting that he already has a relationship with the paternal family and with the father. She also considers that [X] could maintain a meaningful relationship with his siblings in the mother’s home if he was to move into the father’s care.
Ms C’s concerns about the mother’s care relate to stability and also in relation to Mr M and his mental health condition, which it is acknowledged is somewhat profound. Ms C has concerns about the mother’s previous instability - as do I - and about the previous school attendance of the children. She had seen the video of the father interrogating [X], and her view was that she did not place a lot of weight on it because it consisted of lots of leading questions.
I accept the submission made by Mr Mueller for the mother that the continuance of such conduct by the father on a long-term basis has the real potential to cause emotional harm to this boy. The risk of harm would depend upon how often such questioning occurred - the more often, the greater the risk. But Ms C’s evidence is that there is no evidence that [X] has been in any way adversely emotionally affected by what occurred in the course of that “interrogation” captured on video – and I agree with that assessment. Ms C’s evidence was that [X] has by now hopefully forgotten about that event.
Ms C considered that equal shared parental responsibility was preferable to sole parental responsibility, but it isn’t clear to me how she arrives at that recommendation and neither party seeks such an order in this case.
There is a suggestion that the father may have attempted to influence what [X] told Ms C by having him tell her that Mr M had hit him. This is a very difficult matter to make an adverse finding about, because:
(a)it may well be the case that the father did tell [X] to say this to Ms C, as it would appear that the father certainly did remind [X] to point this out to Ms C;
but
(b)I do accept that [X] had previously told the father that Mr M hit him;
and
(c)it is one thing to have a child make a false complaint. It is quite another to remind a child to tell a report writer about something that they believe to have actually happened, which event is relevant on issues of risk.
I don’t suggest for a moment that the father ought to have coached [X], but it is not possible for me to find that the father has done this with a malicious intent as such.
The law:
These proceedings are conducted pursuant to the provisions of Part VII of the Act.
There are a number of key objects and principles which underpin the operation of Part VII, and these are set out in section 60B of the Act. I do not propose to restate them here.
The court has power to make a “parenting order” with respect to children: section 64B. When deciding whether or not to make a particular parenting order the Act requires that this court regard the best interests of [X] as the paramount consideration: section 60CA, section 65AA of the Act.
In arriving at a best interests determination, the Act prescribes mandatory considerations in section 60CC.
The primary considerations are set out in subsections (2)(a) and (2)(b). Subsection (2)(a) refers to the benefit to the child of having a meaningful relationship with both parents. Subsection (2)(b) refers to the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
There are fourteen (14) so-called “additional” considerations set out in section 60CC(3).
The issue of parental responsibility is a key feature of Part VII. Conceptually, parental responsibility is defined in section 61B as all the duties, powers, responsibilities and authority which by law parents have in relation to children.
Parents who share parental responsibility are expected to consult with each other about major long-term issues: section 65DAC. Major long-term issues are defined in section 4 of the Act.
Section 65DAE of the Act provides that, subject to contrary provision in a parenting order, a person who spends time with the child pursuant to the order may make day-to-day decisions about a child’s care without consulting a person who has parental responsibility for the child.
Importantly, section 61DA of the Act imports a rebuttable statutory presumption that when making a parenting order for a child, it is in the child’s best interests for the parents to be allocated equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of a child, or a person who lives with a parent of the child, has engaged in abuse of the child or family violence: section 61DA(2).[1]
[1] The terms “abuse” and “family violence” are statutorily defined in s.4 and s.4AB of the Act respectively
If the presumption does apply, it can nonetheless be rebutted by evidence which satisfies a court that the making of an order for equal shared parental responsibility in accordance with the presumption would not in fact be in the best interests of the child, consistent with the paramountcy principle in section 60CA and section 65AA.
If the court makes an order for equal shared parental responsibility then this engages the statutory pathway set out in section 65DAA of the Act, as identified by the Full Court in Goode & Goode (2006) FLC 93-286. The court also has to consider questions of reasonable practicability, as explained by the High Court of Australia in its decision of MRR & GR (2010) FLC 93-424.
Best interests:
Primary considerations:
Commencing with section 60CC(2)(a), in my view [X] would benefit from having a meaningful relationship with both of his parents. A “meaningful” relationship, as explained by Brown J in Mazorski & Albright (2007) 37 Fam LR 518, is a relationship which is of meaning, of substance and significance to a child. It is a qualitative adjective, not a strictly quantitative one.
In my view, whichever parent’s orders are preferred, the other parent (that is, the non-resident parent), will still have a meaningful relationship with the child. This will continue on either party’s orders.
I now turn to section 60CC(2)(b), and I will start with the father.
He is allegedly a person who has a history of past illicit drug use. However, that aspect was not pursued at the trial, and there is no evidence whatsoever of him having used illicit drugs at any recent time. Indeed, he has produced clear drug screening to the court. I see this issue as being of limited significance for present purposes.
In my view, the most significant risk posed by the father to [X] is the risk of him interrogating [X] in the future about the goings-on in the mother’s home. I have already set out my concerns about this behaviour, and my concerns about the father pursuing medical diagnoses for [X], seemingly with the aim of establishing abuse in the mother’s home.
I also have some concerns that he likely coached [X] to tell Ms C about Mr M abusing him - but as indicated I accept that [X] did tell the father this and in my view the father does seem to genuinely believe that Mr M hit [X].
Certainly, if the father engaged in such a course of “interrogating” conduct longer term, this could place the mother’s relationship with [X] under pressure and could cause emotional harm to [X].
Having said this, there is no evidence that the father breaches Family Law orders, and his own proposal would have the mother spending regular time with [X]. Moreover, if [X] is living with the father primarily as he seeks then there would seem to be little or no purpose to any attempt on his part to continue any evidence-gathering behaviours.
Certainly, the father poses some potential risks to [X], but in my view these are far outweighed by the risks that I discern in the mother’s home.
Turning to the mother, she has a past history of instability in terms of housing. She has a past history of running up debts to landlords with the result that she has now been “blacklisted” for the purpose of rental properties and is effectively forced to rent a home through her father.
She has a past history of not properly promoting the schooling of the older children – which in my view amounts to neglect. It would arguably constitute “serious neglect”, in which case it would constitute “abuse” pursuant to section 4 of the Act, but I don’t go so far as to make that finding against the mother. I find that it is neglect.
As indicated, although the mother has turned things around to some extent in relation to schooling, this is of recent advent, and I am concerned that she initially attempted to justify the unjustifiable in terms of the past absences.
In terms of [X], he has already been enrolled by the mother into eight (8) separate pre-school or day care type facilities. [X] is just five (5) years and six (6) months old. It beggars belief that she would have enrolled him in so many different institutions, and it adds weight to the concerns that I already have in relation to the older children and their patchy past history in terms of schools. Seven (7) schools for [A] in four years and five (5) schools for [B] in two (2) years paints a grim picture of instability.
In contrast, I am comfortably satisfied that if [X] was to live with the father that he would go to one school, that he would stay in one place, or at least in one town. He offers stability that has been conspicuous by its absence in the mother’s household.
I have concerns about the mother holding herself out as knowing drug dealers, as indicated earlier. If that is in fact true, then it is a bigger concern to me than if it isn’t. But in either event, the mother is either a bully, or attempts to be a bully, on the basis of alleged connections of a criminal nature.
I am concerned in terms of parental role modelling that the mother has the traffic history that she does. This does not set a good example for her son, nor does her criminal conviction for an offence of dishonesty. These matters go to stability and to basic role modelling as a parent, and in circumstances where there is no corresponding risk on the father’s side of the ledger, I consider these risks to be unacceptable for somebody who wishes to maintain the primary parenting role of [X].
I have concerns about the potential risk posed by Mr M to [X] in the mother’s home. It is not Mr M’s fault in any way, shape or form that he suffers from a serious mental illness. But the reality is that there are concerns about Mr M in terms of potential risk to [X], and indeed the ICL initially proposed orders that Mr M not have any contact with [X] until he provides various documents from treating psychiatrists confirming his compliance with treatment and that he is complying with his medication.
Mr M has a violent criminal history. In 2009 he committed the offence of attempted robbery with actual violence while armed in company. The victim was the proverbial “little old lady” walking down the street from whom he attempted to steal her handbag. She fell over. I regard this as a serious criminal offence.
Mr M was admitted to probation. He breached the probation order and appeared back in the criminal courts on a number of occasions for breaching probation before finally in January 2012 he was re-sentenced for the original offence. Mr M clearly did not take the benefit of the probation order, and was ultimately sentenced to a term of imprisonment for nine (9) months, suspended for twelve (12) months.
According to exhibit ICL-4a, as at late May 2016, Mr M was diagnosed with paranoid schizophrenia and polysubstance abuse; he was non-compliant with depot preparation of flupenthixol; he was known to mental health services having had previous admissions to mental health facilities. His mother had taken him into Town B Hospital at that time because she was concerned about deterioration in his mental state characterised by hallucinations, delusional thinking and paranoia. He had reportedly begun carrying a large knife to protect himself from being harmed by others. He was scheduled as mentally ill under the Mental Health Act at that time, having first absconded. He had delusional thoughts relating to persecution, including that people were releasing poison gas into his home.
On any view, Mr M was seriously mentally unwell, and if he was carrying a knife to protect himself, then in my view he was clearly a threat to himself and others at that time as a result of his condition.
According to other documents tendered by the ICL, Mr M was also using illicit drugs at that time, which would be consistent with the diagnosis that he had. The drugs he was taking were cannabis, amphetamines and benzodiazepines.
When the mother met with the Family Consultant for the purposes of the Child-Inclusive Conference in August 2017, the Memorandum reveals that she substantially downplayed Mr M’s mental health condition. She denied that he had a mental health condition of any significance. She denied family violence or any other risk factors in her household. That was in August 2017.
The problem however is that the mother is well aware that Mr M experiences ongoing mental health difficulties.
According to exhibit ICL-4b, the mother attended Region 1 Community Mental Health Unit with Mr M on 15 May 2017, at which time Mr M was suggesting that he was suffering less hallucinations, but the mother was challenging his honesty, saying that he was experiencing regular delusional content. Mr M then went on to describe a firm, fixed belief in demonic persecution. He was struggling to accept the mother’s denials of it. He clearly stated that he has no thoughts of harm towards the mother or the children as a result of such demonic persecution, but would just leave the relationship if it was true.
Mr M was not at that time being adherent to his regular depot injection, and he described being on constant guard against demonic attack, such as being concerned that a portal may be opening up and dragging him to hell. He also described people’s eyes changing to all black at times.
He was assessed with entrenched systematised persecutory delusions secondary to, or consequent upon, schizophrenia. He stated that he would not hurt anyone unless first attacked, but he could not identify any people as being involved in any such attack.
The mother’s evidence in the witness box was that in May 2017, which is around that time, Mr M had delusions that he was a wolf or werewolf. It is quite clear that Mr M was profoundly unwell at that time.
The mother did not proactively go on the front foot about those issues with the Family Consultant or with Ms C in the Family Report interviews – instead she downplayed Mr M’s mental health difficulties. In her oral evidence the mother agreed that when she was pregnant with [C], she ended up ringing the Mental Health Team to tell them that Mr M was accusing her of sleeping with ten (10) men, and that the baby she was carrying was an alien.
To be clear, I am satisfied that the mother is a loving and supportive partner to Mr M in every way. To have made that phone call, the mother must have been clearly concerned about Mr M’s mental health.
The mother admitted that Mr M had put his fist through a car window, and that event is a cause for real concern for me. It is a concern because the mother simply did not make a proper statement or a proper disclosure to the Family Consultant, nor was she particularly forthcoming about the full extent of Mr M’s problems when interviewed by Ms C for the Family Report.
It is quite apparent from the evidence before me that Mr M - for reasons which are on a human level entirely understandable - does not want to continue his regular depot injections which he has to have every fortnight to control his condition. The mother’s evidence is that Mr M’s condition deteriorates in the lead-up to his next injection, and like probably a great number of people who suffer from serious mental health conditions which are not through any fault of their own, Mr M understandably wants to live a normal life and not have to be injected with drugs every fortnight.
Mr M has complained to medical practitioners that the drugs make him tired and sleepy for days. The mother’s evidence is that she encourages Mr M to keep taking his medication.
She needs to do so because if she stops encouraging him, then the risk is that he may stop taking the medication. Mr M has a history of not taking his medication at different times. It is common ground that he did not take his medication between a date in December 2017 and February 2018. (There was a suggestion in the evidence that he may not have taken his medication between 27 March 2018 and 10 May 2018, but I accept that Mr M was in fact compliant with his medication regime at that time given the evidence that is before me.)
The evidence before me establishes that Mr M has a long past history of non-compliance with his prescribed medication regime. He has a recent history of non-compliance between December 2017 and February 2018 and significantly, the mother has to “prod him” and encourage him to keep taking his medication, which she does as a supportive and loving partner to him.
Ms C expressed concerns, which I consider to be understandable and reasonable, in the event that Mr M were to stop taking his mental health medication.
One interesting matter raised in subpoenaed material in exhibit ICL-4d is that the mother’s own report to the registered nurse at a home visit in February 2018 was that Mr M was not helping her with the new baby, and that he continued to think that she could read his mind.
In my view, the mother’s resources - emotional and physical - are stretched to the absolute extreme. She has not only to care for four (4) children at this point in time, but she also has to assist in caring for Mr M who is at real risk of seriously decompensating in the event he stops taking his medication.
It is regrettable that Mr M suffers from this affliction, and the practical reality is that the mother therefore has to manage not just the four (4) children, but also Mr M to some extent. It is a lot to ask of her, and in my view, it inevitably greatly limits the emotional and physical resources she would have available to care for [X].
I would add that there are also subpoenaed records from May 2018 which indicate that Mr M was thinking that the television was telling him to go to sleep and that he was feeling agitated at that time. His condition is a lifelong one, it will require lifelong management, and it inevitably poses a degree of risk to the child, [X], particularly given that Mr M has an admitted past history of carrying knives with him in order to protect himself from perceived but entirely imaginary threats.
I have before me evidence which confirms, in exhibit ICL-8a, that on one occasion in May 2016, Mr M was scheduled for mental health reasons, and at that point, brandished a knife that he had been carrying in his pants. The evidence also establishes that Mr M has a paranoia or a fear about knives, which is perhaps understandable, given his past history.
I should add in this regard that Mr M also has another criminal conviction recorded in exhibit ICL-9a, his Queensland criminal history, for wilful damage. But more importantly, he was also convicted of the offence of possession of a knife in a public place or a school. So he has an unfortunate history with knives – that is the evidence before me.
One other matter that arose in the evidence is the allegation in subpoenaed material that the mother telephoned the Mental Health Team complaining about having to lock up [A]’s Ritalin because Mr M was using it to stay awake. This is referred to in one of the exhibits, but the mother denies ever having said such a thing.
[A] was in fact taking Ritalin at the time. I do not accept the mother’s denial. I find it extraordinary that the Mental Health Team would record such a specific statement, purporting to be a statement made by the mother. I also note that Ritalin is an amphetamine‑based drug, that Mr M has a past history of amphetamine abuse, and that his own complaint is that the depot injections make him tired.
I consider it likely that the mother did tell the nursing staff what is recorded in their notes. But in any event, this matter simply adds to the overall picture that I have clearly formed in my mind, which is that the mother’s household overall poses unacceptable risk to [X] in the context of a proposed primary carer going forward.
I note that the mother annexes material to her trial affidavit, particularly annexures “P” and “Q”, in relation to Mr M continuing to adhere to his relevant medication regime and attending upon his psychiatrist. I accept that in recent times Mr M has been adherent to his medication regime, but he has not been totally adherent, as even on the mother’s evidence, he did not take his medication between December 2017 and February 2018.
I do not what to make of the bruising event in relation to [X]. The bruises are a cause for concern to me as they are consistent with the child being hit multiple times in a very firm way by way of discipline, as he apparently told the father. But then [X] said in the interview, which is exhibit F-3, that Mr M did not hit him. I do not accept the mother’s evidence about the multiple skateboard or scooter injuries, but just because I reject her evidence, does not mean that I have to find that Mr M committed this act.
Mr M is not a witness in the case, and that is obviously a concern as it means that his denial to the Family Report writer is unable to be tested.
In the end, all I can do is express my genuine concern that Mr M may have struck [X], but I cannot put it any higher than that.
The overall picture that emerges in my view is that [X] is at unacceptable risk of harm if he remains in the mother’s primary care.
Additional considerations:
[X] is too young to express any wish, and I disregard the apparent wish that appears in the Family Report that [X] wants to live with his father – I give it no weight whatsoever.
I am satisfied that [X]’s primary attachment is likely to be to his mother. I am satisfied that he has good relationships with his siblings, notwithstanding that he did not mention them in the Family Report interview. I place no weight on the fact that he did not mention his siblings and I do not draw any inferences about that.
I am also satisfied that [X] has a loving and close relationship with his father and with the paternal family, and a developing relationship with Ms J.
The mother complains that the father has not always spent time with [X]. However, in my view, it is plain enough from the journal which appears at page 19 of the father’s affidavit annexures, and also from the mother’s text messages to the father which appear at page 58 thereof, that when the time came to increase the father’s time with [X] pursuant to the Parenting Plan, the mother was unhappy about it and would not agree.
The mother’s message to the father involved a complaint about him spending money on his girlfriend, allegedly spending money on drugs and alcohol, and it went further:
So until future notice by my lawyer, you will not be having contact with [X]. You agreed to [X] going into care on Monday, and you agreed to meet halfway, so I’m done with your little games.
There are also other abusive texts that appear in the father’s affidavit annexures, particularly at page 56.
The bottom line is that I consider that the father was, on occasion, difficult with the mother. Equally, it was no easy thing for him to maintain contact with his son in circumstances where the mother was relocating and where the parties had a difficult and distrustful relationship, and where the mother had previously resisted mediation and had simply stopped facilitating the father’s time with [X].
I consider that neither parent is entirely blameless in this situation, and I do not consider that it makes a significant difference, if any, to the outcome.
In relation to the likely effect of any change in circumstances, I consider that if [X] remains living in the mother’s home, he will be exposed, in my view, to an unacceptable risk of harm. The mother will be stretched to the absolute limit of her resources, for reasons I have already given. [X] would be exposed to a risk of instability going forward, based on the mother’s past conduct.
With the father, [X] would be an only child, a much‑loved son and grandchild to the paternal family, and will be surrounded by loving paternal family members. In my view, he will be stable and settled there. I have no doubt that he would miss his mother and be sad about that, and I have no doubt that he would miss his siblings as well.
There are practical difficulties and expenses that will arise if [X] lives with the father, and these are reflected in the orders that I propose to make, noting the distance between the parties.
In relation to section 60CC(3)(f), the mother has been the primary carer for [X] throughout his life, and in many ways she has “done it tough”. She has been in subsequent relationships that have been abusive and difficult. Mr S, with whom she was in a relationship, she obtained a family violence order against. Another partner, Mr C, was apparently using illicit drugs and perhaps was violent as well, because that is what the mother told the Family Report writer, although she denies that this was so, and I make no specific finding on that issue.
The fact is that the mother’s partners have at times created a level of risk that she has had to manage, and which contribute to the instability which is advanced (in my view entirely appropriately) as a difficulty in her case.
The father is untested as primary carer for [X]. However, he has substantial support around him, and I am confident that the paternal family will assist him in every way. They are a loving and close family and have supported him throughout these proceedings.
In my view, no particular issue arises in relation to the child’s maturity, sex, lifestyle or background. The fact that [X] is a boy makes no difference in my mind in terms of whether he should live with his father or his mother.
In terms of [X]’s aboriginality, the mother identifies as being Aboriginal, as part of the (omitted) nation, and she sets that evidence out in her affidavit at paragraphs 225 to 235. I am confident that she promotes [X]’s aboriginal culture which is his birthright and an important part of his identity.
The mother is better placed to facilitate this aspect of [X]’s culture than the father is.
That said, the father does facilitate [X]’s connection with his aboriginal culture, and his evidence about that appears in his trial affidavit. I accept however that the cultural connections that he can promote in Town A relate to a different “mob” or tribe. Nonetheless, the father can promote [X]’s aboriginality to an extent, and in my view the mother can continue to promote the child’s aboriginality during the times she has [X] that I am proposing to order.
In terms of the parents’ attitudes to parenting, I have already addressed the issues at some length. The reality is that to some extent the considerations in section 60CC inevitably overlap because of the way in which the Legislature has seen fit to draft, and to amend, the Act over many years. It suffices to say that I am satisfied that the mother loves and is devoted to [X] and would be devastated at the orders that I propose to make. I am also satisfied that the father loves and is devoted to [X].
The parents have a history of some difficulty and past conflict, from which each needs to move on going forward, for [X]’s sake. In terms of family violence, the mother has a previous family violence order against Mr S, and there is recent evidence from her that Mr M smashed a car window when they were travelling together in late 2017. The spectre of family violence hangs over the mother’s case; it is however but one factor amongst a range of concerns that this court has, and it is not the major concern.
In relation to the risk of future litigation, the court discerns that the orders proposed by the father that the child live with him in Town A are much more likely to provide a stable, settled environment for [X] than the mother’s proposed orders. I note that the mother proposes that she would not relocate from the Region 1 region, but her past history tells against her, and it may be that if she is unable to remain in the current premises she is in, then her previous “backlisting” will count against her and she may have little or no choice but to move. In any event, even putting that issue to one side, I consider that the father has a much more stable residential history than the mother does.
Parental Responsibility:
These parents do not communicate. Neither of them submits that they should have equal shared parental responsibility. Each of them says there should be an order sole parental responsibility, and so does the ICL.
An interesting question arises as to whether Mr M’s actions in smashing a window constitute “family violence” under section 4AB of the Act. The mother was in the car with him at the time, and the children were not present.
The definition in section 4AB(2) includes:
… intentionally damaging or destroying property.
But before such an act can constitute family violence, it has to be:
… violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
There is no evidence that the mother was coerced or controlled by Mr M’s actions in smashing the window, or that she was fearful. The better view, in my opinion, is that this does not constitute an act of family violence, although I do not for a moment suggest that behaviour to be anything but inappropriate.
I do note the mother’s previous family violence history in relation to Mr S, and the fact that she obtained a family violence order against him. In my view, Mr S’s actions, or likely actions to be inferred from the making of the family violence order and from the mother’s evidence would, in fact, mean that section 61DA(2) is engaged. On that basis, the presumption that equal shared parental responsibility would be in [X]’s best interests does not apply.
But even if I was wrong about that, in my view the evidence overwhelmingly establishes that I should not make an order for equal shared parental responsibility because these parties cannot properly communicate, and as indicated, neither of them actually seek such an order. Each of them says there should be an order for sole parental responsibility, and that is also this Court’s view. Given that I propose to make orders that [X] live with the father, the appropriate order is that he have sole parental responsibility. I consider such an order to be in [X]’s best interests.
Conclusion:
In conclusion and for the reasons set out herein, I am of the view that the appropriate parenting orders to make in this case are those set out at the commencement of these reasons, which are broadly those suggested by the ICL.
I certify that the preceding one hundred and seventy-two (172) paragraphs are a true copy of the reasons for judgment of Judge Betts
Date: 24 October 2018
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Jurisdiction
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Remedies
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