Hornby & Crowley
[2023] FedCFamC2F 306
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hornby & Crowley [2023] FedCFamC2F 306
File number: BRC 4555 of 2021 Judgment of: JUDGE YOUNG Date of judgment: 21 March 2023 Catchwords: FAMILY LAW – parenting application – where the mother seeks sole parental responsibility and the father seeks shared parental responsibility – where the ICL seeks that the mother have final decision-making power – where the parties separated following an assault by the father on the mother – where the mother is anxious about the child spending time with the father – where the parties are able to communicate effectively regarding the child – the court is satisfied the orders sought by the ICL and largely supported by the mother are appropriate Legislation: Family Law Act 1975 (Cth) s 60CC Division: Division 2 Family Law Number of paragraphs: 73 Date of hearing: 5- 7 December 2022; 3 March 2023 Counsel for the Applicant: Mr Green Solicitor for the Applicant: O’Reilly Shaw Lawyers Counsel for the Respondent: Ms Chekirova Solicitor for the Respondent: Stolar Law Pty Ltd Counsel for the Independent Children's Lawyer: Mr Taylor Solicitor for the Independent Children's Lawyer: Stewart Family Law ORDERS
BRC 4555 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HORNBY
Applicant
AND: MR CROWLEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE YOUNG
DATE OF ORDER:
21 March 2023
THE COURT ORDERS THAT:
1.That all previous Orders and Parenting Plans are discharged.
PARENTAL RESPONSIBILITY
2.The parents shall have shared parental responsibility for the child X born 2017 (“the child”).
3.In the event that either one of the parents, in the exercise of shared parental responsibility for the child, proposes to make a decision about a major long-term issue in relation to the child that parent shall:
(a)consult the other parent; and
(b)make a genuine effort to come to a joint decision about that issue; but
(c)in the event that the parents are unable to agree about a major long-term issue; or
(d)the mother consults the father about a major long-term issue and the father fails, refuses or neglects to respond to the mother within 7 days;
the mother is permitted to make the decision without further consulting the father.
TIME ARRANGEMENTS
4.That the child shall live with the Mother.
5.That until the child turns 8, the child shall spend time with the Father as agreed between the parents in writing and failing agreement for one weekend each month in Town B, Brisbane, or otherwise within 100km of the Father’s residence (“Regional Queensland”), as follows:
(a)From 10am to 4pm on Saturday and from 9am to 3pm on the Sunday that same weekend;
(b)The Mother shall be responsible for all costs associated with the child’s travel to and from Regional Queensland/Town B, as well as the child’s and the Mother’s accommodation in Regional Queensland.
(c)Unless otherwise agreed in writing between the parents, the weekend that the child shall spend with the Father shall be:
(i)When the Father’s older children, C born 2011 and D born 2013 are spending time with the Father in Brisbane, or on the first weekend of the month;
(ii)Should C and D spend time with the Father on a weekend other than the first weekend of a month as per Order 5(c)(i) above, the parties shall use their best endeavours to allow X to spend time with the Father on the same weekend; and
(iii)Should C and D not spend time with the Father in Brisbane in any given month, or should no agreement be reached between the parties, the time will proceed on the second weekend of the month.
(d)The Father is to notify the Mother of the arrangements, including the address and details of his accommodation, at least seven (7) days prior to any time occurring.
6.That after the child turns 8 and until the child turns 10, the child shall spend time with the Father at all times as agreed in writing between the parents, and failing agreement for one weekend each month in Regional Queensland/Town B, as follows:
(a)From 10am to 5pm on Saturday and from 9am to 3pm on Sunday that same weekend;
(b)The Mother shall be responsible for all costs associated with the child’s travel to and from Regional Queensland/Town B, as well as the child’s and the Mother’s accommodation in Regional Queensland;
(c)Unless otherwise agreed in writing between the parents, the weekend that the child shall spend with the Father shall be:
(i)When C and D are spending time with the Father in Brisbane, on the first weekend of the month;
(ii)Should C and D spend time with the Father on a weekend other than the first weekend of a month as per Order 6(c)(i) above, the parties shall use their best endeavours to allow X to spend time with the Father on the same weekend; and
(iii)Should C and D not spend time with the Father in Brisbane in any given month, or should no agreement be reached between the parties, the time will proceed on the second weekend of the month.
(d)That when time occurs in accordance with Order 6(c)(i), and C and/or D spend overnight time with the Father during the visit, the child’s time with the Father shall be from 10am Saturday to 3pm Sunday.
(e)The Father is to notify the Mother of the arrangements, including the address and details of his accommodation, at least seven (7) days prior to any time occurring.
7.That from when the child turns 10, the child shall spend time with the Father at all times as agreed between the parents in writing, and failing agreement for one weekend each month in Regional Queensland, as follows:
(a)From 10am Saturday to 3pm Sunday;
(b)The Mother shall be responsible for all costs associated with the child’s travel to and from Regional Queensland/Town B, as well as the child’s and the Mother’s accommodation in Regional Queensland;
(c)Unless otherwise agreed in writing between the parents, the weekend that the child shall spend with the Father shall be:
(i)When C and D are spending time with the Father in Brisbane, on the first weekend of the month;
(ii)Should C and D spend time with the Father on a weekend other than the first weekend of a month as per Order 7(c)(i) above, the parties shall use their best endeavours to allow X to spend time with the Father on the same weekend; and
(iii)Should C and D not spend time with the Father in Brisbane in any given month, or should no agreement be reached between the parties, the time will proceed on the second weekend of the month.
(d)The Father is to notify the Mother of the arrangements, including the address and details of his accommodation, at least seven (7) days prior to any time occurring.
SPECIAL OCCASIONS
8.That if Mother’s Day falls on a weekend when the child is spending time with the Father, such time be suspended and the child spend time with the Mother for Mother’s Day weekend.
9.That if Father’s Day falls on a weekend when the child is spending time with the Mother, if the Father provides at least 30 days’ notice to the Mother that he wishes for the child to spend time with him on Father’s Day, the visit for the month of September shall occur in accordance with Order 5, 6 or 7 depending on the child’s age, on the weekend of Father’s Day.
10.That if the child does not spend time with the Father on Father’s Day, the child shall communicate with the Father by telephone on Father’s Day, between 10am and 10:30am with the Father to place the call to the Mother’s mobile phone.
11.That if the child does not spend time with the Father on the child’s birthday, the child shall communicate with the Father by telephone between 5pm and 5:30pm on the child’s birthday with the Father to place the call to the Mother’s mobile phone.
12.That if the child’s birthday falls on a weekend when the child is spending time with the Mother, if the Father provides at least 30 days’ notice to the Mother that he wishes for the child to spend time with him on the child’s birthday, the visit for the month of August shall occur in accordance with Order 5, 6 or 7, depending on the child’s age, on the weekend nominated by the Father for the child’s birthday weekend.
13.That if the child does not spend time with the Father on the Father’s birthday, the child shall communicate with the Father by telephone between 5pm and 5:30pm on the Father’s birthday with the Father to place the call to the Mother’s mobile phone.
SCHOOL HOLIDAYS
14.That during the school holiday periods, the Father’s time with the child pursuant to Orders 5, 6 and 7 shall be suspended, and the child shall spend time with the Father in accordance with Orders 15, 16 and 17 below.
15.That until the child turns 8, the child shall spend time with the Father on school holidays at all times as agreed between the parents in writing, and failing as follows:
(a)in the December/January school holidays:
(i)in Regional Queensland/Town B, for four consecutive days on two separate occasions (not to be joined together), being once in December and once in January, from 10am to 4pm on each day;
(ii)the Mother shall be responsible for all costs associated with the child’s travel to and from Regional Queensland/Town B, as well as the child’s and Mother's accommodation in Regional Queensland.
(iii)by no later than 1 October of that year, the Father is to notify the Mother in writing of three proposed holiday block periods, and the Mother is to confirm the two elected block periods within seven (7) days;
(iv)in the event the Father fails to provide the Mother with dates by 1 October, the Mother is to notify the Father of the dates for the block holiday time by 14 October;
(v)the parties shall use their best endeavours to make arrangements for C and D to be present during this visit.
(b)in the Easter, June/July holidays and September/October school holidays:
(i)in Regional Queensland/Town B, for four consecutive days from 10am to 4pm on each day;
(ii)the Mother shall be responsible for all costs associated with the child’s travel to and from Regional Queensland/Town B, as well as the child’s and Mother's accommodation in Regional Queensland.
(iii)by no later than 1 March, 1 May and 1 August respectively of that year, the Father is to notify the Mother in writing of two proposed holiday block periods, and the Mother is to elect one block period within seven (7) days;
(iv)in the event the Father fails to provide the Mother with dates by the required date, the Mother is to notify the Father of the dates for the holiday time within seven (7) days;
(v)the parties shall use their best endeavours to make arrangements for C and D to be present during this visit.
16.That after the child turns 8 until the child turns 10, the child shall spend time with the Father on school holidays at all times as agreed between the parents in writing, and failing as follows:
(a)in the December/January school holidays:
(i)for four (4) consecutive days on two separate occasions, being once in December and once in January, from 10am to 4pm on each day;
(ii)the Mother shall be responsible for all costs associated with ensuring the child travels to and from Regional Queensland, as well as the child’s and Mother's accommodation in Regional Queensland.
(iii)by no later than 1 October of that year, the Father is to notify the Mother in writing of three proposed holiday block periods, and the Mother is to confirm the two elected block periods within seven (7) days;
(iv)in the event the Father fails to provide the Mother with dates by 1 October, the Mother is to notify the Father of the dates for the block holiday time by 14 October;
(v)the parties shall use their best endeavours to make arrangements for C and D to be present during this visit.
(vi)in the event the Mother receives notification from the Father, by 1 October, that C and D shall be spending overnight time with the Father during the Regional Queensland visit, the Father is to notify the Mother of the arrangements including the address and details of his accommodation, and the child’s time with the Father shall be extended to two overnights in the 4 day block, as nominated by the Father.
(b)in the Easter, June/July and September school holidays:
(i)for four consecutive days from 10am to 4pm on each day;
(ii)the Mother shall be responsible for all costs associated with the child’s travel to and from Regional Queensland, as well as the child’s and Mother's accommodation in Regional Queensland.
(iii)by no later than 1 March, 1 May and 1 August respectively of that year, the Father is to notify the Mother in writing of two proposed holiday block periods, and the Mother is to elect one block periods within seven (7) days;
(iv)in the event the Father fails to provide the Mother with dates by the required date, the Mother is to notify the Father of the dates for the holiday time within seven (7) days;
(v)the parties shall use their best endeavours to make arrangements for C and D to be present during this visit;
(vi)in the event the Mother receives notification from the Father by the nominated date, that C and D shall be spending overnight time with the Father during the visit, the Father is to notify the Mother of the arrangements including the address and details of his accommodation, and the child’s time with the Father shall be extended to two overnights in the 4 day block, as nominated by the Father.
17.That after the child turns 10, the child shall spend time with the Father in school holidays at all times as agreed between the parents in writing, and failing agreement as follows:
(a)in the December school holidays:
(i)in a block of four days as follows:
A.from 10am on the first day for three consecutive overnights, until 3pm on the fourth day (being three consecutive nights).
(ii)the Mother shall be responsible for all costs associated with the child’s travel to and from Regional Queensland/Town B.
(iii)by no later than 1 October of that year, the Father is to notify the Mother in writing of three proposed holiday block periods, and the Mother is to confirm the two elected block periods within seven (7) days;
(iv)in the event the Father fails to provide the Mother with dates by 1 October, the Mother is to notify the Father of the dates for the block holiday time by 14 October;
(v)the parties shall use their best endeavours to make arrangements for C and D to be present during this visit.
(b)in the Easter, June/July and September school holidays:
(i)in a block of four days as follows:
A.from 10am on the first day to 3pm on the fourth day of the block (being three consecutive nights).
(ii)the Mother shall be responsible for all costs associated with the child’s travel to and from Regional Queensland, as well as the child’s and Mother's accommodation in Regional Queensland.
(iii)by no later than 1 March, 1 May and 1 August respectively of that year, the Father is to notify the Mother in writing of two proposed holiday block periods, and the Mother is to elect one block periods within seven (7) days;
(iv)in the event the Father fails to provide the Mother with dates by the required date, the Mother is to notify the Father of the dates for the holiday time within seven (7) days;
(v)the parties shall use their best endeavours to make arrangements for C and D to be present during this visit.
18.Notwithstanding any other provision in these Orders, for Christmas, the time the child is to spend with the Father according to Orders 15 to 17 as follows:
(a)in odd numbered years, the time is to include Christmas Day; and
(b)in even numbered years, the Father’s time is not to include dates between 23 December to 27 December.
19.That for the purpose of these Orders, “school holidays” shall refer to the designated school holidays of the school which the child attends, and shall be deemed to commence at 3.00pm on the last day of the school term and to conclude at 3.00pm on the Friday before the new school term commences.
TIME OUTSIDE QUEENSLAND
20.That notwithstanding any other provision in these Orders, in the event the Father wishes for the child’s time with him, when that time is overnight time, to occur in a location other than Regional Queensland, the Father shall provide 14 days’ written notice to the Mother and the time shall occur as follows:
(a)The time shall occur during the child’s scheduled time with the Father, in accordance with these Orders;
(b)The Father is to be responsible for the costs of the child’s return travel costs; and
(c)The child is to be returned to the Mother’s care in accordance with these Orders, unless otherwise agreed between the parents in writing.
CHANGEOVER
21.That changeovers shall occur as agreed between the parents in writing and failing agreement:
(a)When the Father has provided no less than 30 days’ notice that D and C shall be attending the visit and that he requires changeover to occur at the Brisbane Airport;
(b)Otherwise, during the term time, changeovers on Saturday morning and Sunday afternoon shall occur at Town E Rest Station, F Street, Town E;
(c)That the term time changeovers that occur on Saturday afternoon and Sunday morning shall occur at McDonalds located at G Street, Town B;
(d)The school holiday changeovers shall occur at the Town E Rest Station, F Street, Town E.
TELEPHONE COMMUNICATION
22.That the child shall be at liberty to communicate with the Father by Facetime/video call/telephone at all such times as the child reasonably requests, and otherwise between 5pm and 5:30pm each Wednesday and Sunday, with the Father to place the call to the Mother’s mobile in that period.
23.That the Mother shall facilitate any communication between the child and the Father.
24.That the child shall be at liberty to communicate with the Mother at all such times as the child reasonably requests when he is spending time with the Father, and the Father shall facilitate the call to the Mother’s mobile phone.
25.That within 30 days the Mother shall provide the Father with a PO Box address that the Father can use to send the Mother documents that otherwise cannot be sent electronically or to send the child gifts or cards.
OVERSEAS TRAVEL
26.That both parents be at liberty to travel with the child overseas provided:
(a)The overseas travel occurs during the child’s time with the parent pursuant to these orders;
(b)The travelling parent provides the other parent with notice of the travel, including the proposed destination and dates of travel, and an itinerary and return tickets for the trip 60 days before the scheduled trip; and
(c)The travelling parent provides the other parent with contact details of where the child will be contactable throughout the trip.
27.That during any period of overseas travel, the travelling parent will ensure the child contacts the other parent by telephone at least once each week, at a time agreed between the parties.
28.That if either parent requests for the child to obtain or to renew the child’s a passport, both parents, within seven days of the request, are to do all acts and sign all documents necessary to obtain a passport for the child, with the costs to be paid by the requesting parent.
29.That the Mother shall retain the child’s Passport.
EXCHANGE OF INFORMATION
30.That all necessary communication between the parents regarding the child be by way of parenting communication application as agreed between the parties, and if not agreed AppClose, except in the case of emergencies where such communication shall be by telephone.
31.That if either parent sends a message to the other parent on the Communication Application or by email or text message, the parent who receives the message must acknowledge receipt of the message and respond to the message within 24 hours.
32.That during the time the child is with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent and use their best endeavours to ensure that others do not question the child about the personal life of the other parent;
(b)Speak of the other parent respectfully and use their best endeavours to ensure that others speak of the other parent respectfully; and
(c)Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
AUTHORITIES
33.That these Orders authorise the child’s school, after hours school care or vacation care program and extra-curricular activity providers to release all information and documents concerning the child including but not limited to newsletters, report cards, behaviour notices, event and assessment calendars, online school portals or school photographs to each parent, at each parent’s cost.
34.The parents are each at liberty to contact the teachers and/or principals and/or administrative staff of all childcares/schools attended by the child from time to time in order to obtain the information referred to above.
35.That these Orders authorise any healthcare practitioner treating the child to release all information and documents concerning the children to each parent, that such practitioners may lawfully provide about the children including but not limited to copies of all reports, referrals, records and documents pertaining to the chid at the requesting parent’s cost.
36.That each parent is responsible for contacting the child’s school or extra-curricular activity provider to obtain all relevant information concerning the child’s progress at school or in that activity, and any special events involving the child.
SPECIFIC ISSUES
37.That the Father be restrained from consuming alcohol in excess of the legal driving limit in the 12 hours prior to the child spending time with him, and for the period the child is in his care.
38.That the parties be restrained from physically disciplining the child.
39.That pursuant to Section 121 of the Family Law Act 1975, leave is granted to the parents and legal representatives to provide a copy of these Orders to:
(a)any school, education institution, or care provider;
(b)any treating medical practitioner, hospital or health care professional for the parties or the child;
(c)any government department or instrumentally;
that may seek or require to hold a copy of these Orders for the purpose of discharging any duties, legislative or policy requirements on the condition that these Orders are not further published and are held by the relevant person or entity seeking them in accordance with the Australian Privacy Principles as set out in Schedule 1 of the Privacy Act 1988.
40.That the Mother and the Father shall both be entitled to attend all events involving the child including:
(a)sporting events including training, games, clinics and other activities;
(b)extracurricular activities which allow for parental attendance; and
(c)school functions and events that allow for parental attendance, including but not limited to concerts, school assemblies, sports day, parent/teacher interviews, canteen duties and social functions;
(d)in the event the Father proposes to attend an event or activity, he is to provide the Mother with at least seven (7) days’ notice that he will be attending the event.
41.That each party keep the other party informed of changes to the respective party’s telephone numbers and/or mobile telephone numbers and/or email addresses within 48 hours of any such change.
42.That each party keep the other party informed of the names and addresses of any and all health practitioners who are involved in treating or caring for the children.
43.That the Father and Mother inform the other as soon as it is reasonably practicable of any medical condition, significant health issue and/or illness suffered by the child and authorise any treating medical practitioner to give the other parent such information that he or she may reasonably request pertaining to such condition.
DISPUTE RESOLUTION
44.That in the event the Mother and Father are unable to resolve a dispute regarding parenting matters, the following is to apply unless otherwise agreed in writing between the parties:
(a)The Mother and Father are to engage in Family Dispute Resolution with a Family Dispute Resolution Practitioner to assist with resolving the parenting dispute;
(b)The Mother and Father are to jointly agree on who the Family Dispute Resolution Practitioner will be; and
(c)If the Mother and Father cannot jointly agree on who the Family Dispute Resolution Practitioner will be:
(i)the Mother is to propose to the Father in writing a list of three (3) Family Dispute Resolution Practitioners with details of their fees, experience and availability;
(ii)the Father is to select a Family Dispute Resolution Practitioner from the Mother’s list within seven (7) days of being presented with the list;
(iii)if the Father fails to select a Family Dispute Resolution Practitioner within seven (7) days of being presented with the list the Mother shall select a Family Dispute Resolution Practitioner from her list presented to the Father.
45.That any costs of the Family Dispute Resolution be paid for equally by the Mother and Father.
NON-DENIGRATION
46.That during the time the child is with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)Speak of the other parent respectfully; and
(c)Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child, and further neither party defame the other via any form of social media.
PARENTING ORDERS PROGRAM
47.Both parents are to complete a parenting orders program and provide evidence of completion to the other.
MEN’S BEHAVIOUR CHANGE PROGRAM
48.Before the child spends any overnight time with the father the father is to complete a Men’s Behaviour Change Program, however called, dealing with the nature and consequences of family or domestic violence and to provide evidence of having completed such a program to the mother.
INDEPENDENT CHILDREN’S LAWYER
49.That the Independent Children’s Lawyer be discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hornby & Crowley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
This is a parenting case about X who is five years old. X lives with his mother in Town H in rural regional Queensland. His father lives in Town B in regional Queensland. X spends time with his father pursuant to interim orders on one weekend a month, over two days without overnight time.
The parties separated in May 2019 following an assault by the father on the mother at their home. X was very young at that time. This assault precipitated the separation of the parties.
The father was subsequently found guilty of assault after a contested hearing. He was placed on a good behaviour bond. The findings of the magistrate included a finding that the father had placed his fingers in the mother's mouth during the assault and caused her difficulty in breathing. According to the police evidence the father returned a blood alcohol reading of .235%, presumably after breath analysis, a short time later. The police evidence was that the father was drunk, incoherent and argumentative. While X was present in the household at the time of the assault there does not appear to be any evidence that he witnessed it or, having regard to his age, was directly distressed by it. He was in close proximity, however, and the police evidence was that the child was being held in the father’s arms at the time they spoke to him.
As a result of the findings against him the father was dismissed from his employment.
As part of the proceedings involving the father he appears to have participated in a program intended to educate him about the nature and consequences of domestic or family violence. The records of the Region J Domestic Violence Service were produced on subpoena and tendered in evidence. The father attended multiple sessions with the Service between early and mid-2020.
The notes record a consistent position of the father that he was not guilty of the assault. Even after he was found guilty at the contested hearing he protested in 2020 that he did not commit the assault and asserted that he intended to appeal. He did not appeal the decision.
One of the consistent issues in the case is the degree of the father's insight into and understanding of the consequences of his behaviour and its effect on X.
In 2021 the mother left her employment due to injury. In September 2021 the mother sought and obtained an interim order permitting her to relocate from City K to Town H with the child. The mother subsequently relocated to Town H with the child. The mother’s parents live in Town H.
Sometime in 2022 the father moved from City K to Town B.
In 2022 the father was also involved in litigation with the mother of his two older children, C, who is 11, and D, who is nine years old. A trial was conducted in that matter in City L in late 2022. Judge Bowery delivered reasons for judgement in January 2023. The findings in that case have some bearing on this case.
In this case the mother and the independent children's lawyer have a common position in relation to live with and time spending orders. They seek orders that the child live with the mother and spend time with the father in Town B once a month. They propose that the child begin spending overnight time with the father when he is eight years old on condition that C and D are also spending time with him pursuant to Judge Bowery's orders which provide for them to spend time with the father one weekend each month, alternating between Town B and City L. They propose that X spend overnight time with the father for one night in each month when he turns 10, regardless of whether C and D are present, and for block times four times a year, for four days including two overnights.
The father's position was that X should begin spending overnight time with him immediately on every second weekend.
The mother's position was that she should have sole parental responsible and the father's position was that parental responsibility should be shared. The position of the ICL in relation to parental responsibility was that whether the mother had sole parental responsibility or shared parental responsibility she should have final decision-making power in the event of disagreement.
EVIDENCE IN THE TRIAL
The mother gave evidence that prior to the assault on her by the father there had been other episodes of family violence involving the father. She said on some occasions he had denigrated and pushed her and also prior to separation there had been one occasion when he punched her father during a disagreement at their home. I do not believe I am in a position to make findings about those allegations, although I accept that the mother was the victim of a serious incident of family violence at the hands of the father resulting in findings of guilt in the Region J Magistrates Court as described above.
There is no evidence of family violence between the parties after their separation in May 2019.
However, the mother is clearly anxious about the father's capacity to regulate his behaviour around his children. In 2021 there was an incident involving the father's oldest son C. The circumstances are far from clear and were not subject of direct evidence before me but that matter was considered by Judge Bowery in the trial before him. It appears that while C and D and X were with the father, during what appears to have been horseplay, the father kicked C in the leg and hurt him. Judge Bowery said of this incident as follows:
The father kicking [C] in early 2021 has been a feature of this hearing. It appears that [C] was hurt at the time and that he and [D], who witnessed the incident, were troubled by it. It is most unfortunate that the father lost his temper and hurt one of his sons that way. I would also comment that I hope the mother has not continued to remind the children about this incident. It would be damaging for the boys emotionally for an unfortunate incident two years ago to be kept in their minds so that the relationship with the father cannot move on and improve.
There was apparently a report to the child welfare authorities arising from this incident and a police investigation but no charges were laid against the father and the matter was taken no further by the authorities. Nevertheless, this incident appears, perhaps not surprisingly, to be a source of anxiety to the mother.
In her evidence the mother referred to X saying that his father had hit him on the head and had hurt him. In her oral evidence the mother said that X often said the father had hit him. In response to a question from me the mother asserted that she had reported these matters to the Queensland child welfare authorities. She also said she had raised it with the Queensland police when they questioned her (to find if X had said anything relevant to her) about the incident concerning C. No subpoenas were directed to the Queensland child welfare authority or to Queensland police to produce documents in relation to the mother's assertion that she had informed them of X’s complaint. No s 69ZW order was sought from the court at any point, notwithstanding that the mother was legally represented in the proceedings.
The mother also asserted that she had recorded in her diary the times X reported having been hit by her his father. There was a call for production of the diary during the trial but it was not produced. The mother said that she had left the diary in Town H when she came to Brisbane for the trial. Notwithstanding that the matter was then adjourned for three months in order for Judge Bowery to deliver his judgement concerning the father's other children, the diary was not produced.
There is no record of X having made a report to any third party of being hit by his father.
During submissions counsel for the mother submitted that the mother's evidence in relation to this point should be accepted and that it was evidence that the child was at an unacceptable risk of harm in the father's care. On enquiry as to what kind of harm counsel referred to, the court was told that the risk of harm was of "excessive discipline". In context I am satisfied that the submission, in substance, was that the child was at unacceptable risk of physical harm in the father's care.
As counsel persisted with the submission I referred to the lack of any evidence to support or corroborate the mother’s evidence that X had complained on multiple occasions that his father had hit him and that she had reported the matter to the child welfare and other authorities. I indicated to counsel that I considered the allegation to be of such gravity that I would grant an adjournment if the mother wished to obtain the supporting evidence said to be available. Counsel told me that no adjournment was sought.
I am satisfied that the mother or her legal advisers were in a position to obtain any relevant record from the Queensland child welfare authority or Queensland police and to produce the mother's diary if it contained a contemporaneous record of any complaint by X. I am satisfied that the failure to adduce any such evidence permits an inference that if such evidence was adduced it would not assist the mother. I am not satisfied that the mother's evidence in relation to this allegation should be accepted.
While I acknowledge the concerning character of the finding by Judge Bowery, and his other findings referred to below, I am not satisfied that I should find the child is at unacceptable risk of physical harm or excessive physical discipline in the father's care.
Nevertheless, for other reasons which will be considered below I am satisfied that because there are concerning factors about the father’s capacity and insight that a cautious approach is required to the child's time spending with the father.
In his trial affidavit the father dealt with certain matters under the subheading “History of Domestic Violence”. He did not directly refer to his assault on the mother in mid-2019 but instead asserted that he had been the victim of domestic violence at her hands, and before that, at the hands of his former partner.
Consistently with this, the subpoena records from the Domestic Violence Crisis Service in City K throw light on the father’s lack of insight. An excerpt from the notes of the service dated mid-2020 reads as follows:
… I asked [Mr Crowley] if his contact had affected what he hoped to gain from the program, provided example (sic) of increased understanding of DV with men identifying behaviours they want to work on that initially they didn’t think were an issue. [Mr Crowley] said he is learning a lot and what real abuse it (sic), learning about disrespectful, controlling and dominant behaviours and is seeing this is what is being used against him. (emphasis added).
In the family report dated 14 March 2022 the report writer recorded the father as denying all allegations of domestic and family violence. In relation to the father’s assault on the mother in mid-2019 he denied having done so and said “I need to work out how I can put all her lies together to get her for perjury … Her evidence has so many discrepancies, I am going to fix these things.”
However, in his oral evidence in the trial the father acknowledged his assault of the mother. When he was asked to explain the thought process that led him to this late acknowledgement the father was unable to explain in any persuasive way what had led to his change of mind. I was left with the impression that the father had relatively lately realised that his continued denial of his assault of the mother was disadvantageous to his position and his acknowledgement was not accompanied by any genuine or real insight.
The mother also gave evidence that X was anxious about time spending with the father. However, it was clear from other evidence that X was usually reluctant to separate from his mother, for example, when he spent time at play therapy or with the maternal grandparents. Both the child’s play therapist and the maternal grandmother gave evidence that X was reluctant to part from his mother and, in the case of the maternal grandparents, he would be upset and “carry on” initially if they were to mind him while the mother was elsewhere. Both witnesses said that X would tend to settle after some time. I am not satisfied that X’s anxiety in this regard was related only to his relationship with his father.
Nevertheless, the observations of the family report writer indicated that X’s relationship with his father was not necessarily established on a firm foundation. During the observation of X and his father, X was initially reluctant to engage. However, after the father sat on the floor and gently began to engage, X appeared to relax somewhat, although he “very minimally sought spontaneous physical contact” with his father. The father was observed to remain gentle and provided X with positive feedback. Towards the end of the observation the child sat in his father’s lap of his own accord and then returned to play. As time passed he appeared to be increasingly comfortable with his father’s presence.
On the other hand, during X’s observation with his mother he readily sought physical comfort from her and they both laughed and chatted with each other through the play. The observation was otherwise unexceptional.
The family consultant expressed the opinion that X appeared to hold some uncertainty in relation to his father, most likely stemming from the lack of certainty about how he spent time with him. She also raised the possibility that the child had witnessed the father’s violence towards the mother. As noted above, at the time the father assaulted the mother X was very young. The evidence did not permit a finding that he had witnessed that event, although he was present. There is no evidence of family violence since that time.
The family consultant also expressed concern about the then travel arrangements which involved the child regularly travelling to City K from Town H to spend time with his father. The family consultant thought that regime was too onerous for a child of X’s age. Before the trial, and after it became evident that the father had moved from City K to Town B, there was an interim order that the child spend time with father once a month, which involved considerably less travel, in line with the family consultant’s recommendations.
The family consultant also referred to the evidence about family violence which, if accepted, indicated a propensity on the part of the father for family violence of “high potency”. She said, on the other hand, if the father’s claim that the mother has fabricated her claims was accepted this indicated that she was attempting to fracture or limit X’s relationship with his father, which in turn would pose a risk to X of being denied the opportunity to form a secure attachment with his father and, overall, potentially result in “a sense of abandonment, rejection and ruptured self-efficacy”.
The family consultant also expressed concern about the allegations by both parents against the other about the consumption of alcohol and recommended CDT testing of both parents. In the case of the mother there did not appear to be any cogent evidence of alcohol abuse. In the case of the father, while he was drunk at the time of the assault on the mother, CDT testing of the father for the purpose of the trial before Judge Bowery did not suggest chronic abuse of alcohol.
The family consultant also expressed concern about whether the poor communication between the parents militated in favour of a sole parental responsibility order in favour of the mother.
In her oral evidence, the family consultant expressed the opinion that X did not demonstrate sufficiently high levels of resilience to permit him to spend immediate and regular overnight time with the father as sought by the father. She considered that the father’s proposal was likely to be harmful to the child and that the child’s relationship with his father was likely to be better supported by a graduated increase of time over a reasonably protracted period.
The family consultant recommended, in summary, that the child live with the mother; that both parents attend a parenting orders program, preferably in person; that both parents continue to engage with their mental health practitioners, including psychologists; that the father re-engage in a men’s behaviour change program, and that the child spend time with the father.
Her specific recommendations in relation to time spending were that the child’s time with his father increase in three phases.
In the first phase, she recommended that X spend weekend time, once a month, over two days from Saturday 10 AM to 2 PM and from Sunday 10 AM to 2 PM, ideally at the same time as the father’s two older children. During school holidays she recommended a block of four days from 10 AM to 2 PM, including during the Christmas holidays.
In the second phase, when X turns eight years of age, she recommended that the time be extended from 10 AM to 4 PM and overnight if the older siblings were present.
In the third phase, when X turns 10 years of age, she recommended that the time increase to 2 overnights during each block period.
The family consultant expressed the opinion, that if there was a finding that the mother had fabricated her allegations of family violence, and the father’s (then) application that the mother relocate to City K was successful, the overnight time spending commence when the child turns 5 ½ in January 2023 for two nights on alternative weekends, one afternoon a week and when X turned six on alternative weekends from Friday until Monday.
In relation to the mother’s allegations of family violence I accept that the findings of guilt in relation to counts of assault by the father in mid-2019 were properly made. I accept that those findings indicated, in the words of the family consultant, “high potency family violence”. However, I have been unable to make further findings of family violence as alleged by the mother. I am not satisfied of the truth of the allegations by the mother that X complained repeatedly that his father hit him.
In relation to the father’s allegations that the mother fabricated evidence or that he was the victim of family violence perpetrated by the mother I do not consider him a reliable witness. I do not accept his claims.
I have reservations about whether the mother is prepared to fully support a relationship between X and his father, although she has complied with court orders to date. I accept that the mother has a degree of anxiety about the child spending time with the father. Although I have not accepted all of the mother’s allegations against the father I accept that, regrettably, the father’s conduct in assaulting her in 2019 and the circumstances leading Judge Bowery to criticise the father’s conduct in relation to his older child, C, in circumstances that are not entirely clear, have done nothing to dispel the mother’s anxiety and much to increase it.
While I do not accept that the picture is as quite so black-and-white as the family consultant’s analysis would suggest I broadly accept her observations and opinions. In particular, I accept her opinion that X is a child who lacks resilience and if his relationship with his father is to be strengthened the approach to time spending must be cautious as the family consultant recommends.
The positions of the mother and the independent children’s lawyer reflect her recommendations.
I turn now to the legislative pathway.
Subsection 60CC(1) of the Family Law Act provides that in determining what is in the child’s best interests the court must consider the matters in subsections 60CC(2) and (3). Subsection 60CC(2) provides that the primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection 60CC(2A) provides that in applying the considerations in subsection 60CC(2) the court is to give greater weight to the considerations set out in paragraph 60CC(2)(b). I am satisfied that there is no unacceptable risk of harm to the child on these grounds. However, I am satisfied that given the finding by Judge Bowery about the father hurting his older son, C, some two years ago, and the father’s apparent denial of the seriousness of that event, that some protective measures are required. These essentially are that the child’s time with the father should be gradually increased and, where possible, the older children should be present during that time.
The mother is the primary carer of the child and the father does not seek to disturb that. I am satisfied that the child will benefit from a meaningful relationship with her father.
The court must also have regard to the additional considerations in subsection 60CC (3).
In relation to any views expressed by the child, the child is too young to express a view.
In relation to the nature of the relationship of the child with each of the child’s parents and any other persons, including a grandparent or other relative of the child, the child is in the primary care of the mother and spends time with the father. The child has a strong attachment to his mother and a developing relationship with his father.
In relation to the extent to which each of the child’s parents has taken, or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time and to communicate with the child, both parents seek to participate in making decisions about the child. However, I accept the submissions of counsel for the mother that the father has, on occasions, refused to communicate with her about arrangements for the child. His reasons for this were unclear but if this attitude were to persist it presents obvious difficulties for constructive communication in relation to the child’s best interests. I return to this subject below in relation to parental responsibility.
In relation to the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child, the father was assessed to pay a small amount of child support in the past, presumably due to him losing his employment as a result of him being found guilty of assaulting the mother. The mother says she does not currently receive child support from the father and no assessment is in place. She said she has not sought an assessment due to her concerns about the father’s response and she said that because the father is unemployed she does not expect any substantial assessment. The father indicated that he is engaged in study and he may find employment in future.
In relation to the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents, there will not be any significant change in the child’s circumstances.
In relation to 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, the mother lives in Town H and the father lives in Town B, some hours by road away. There was evidence that the travel every second week-end was tiring for the child and the arrangement was varied on an interim basis to once a month.
In relation to the capacity of each 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 is able to provide for the child’s needs, including emotional and intellectual needs. The father’s assault of the mother and his repeated denials of having done so indicate a concerning lack of insight into the effect of family violence. The incident involving C, although apparently isolated, is also of concern in relation to the father’s lack of insight and, perhaps, his inability to regulate his emotions. Notwithstanding this, the family consultant’s observation of the father with the child indicated that the father was capable of a sensitive, patient and calm approach to the child and was able to reassure the child and win his confidence.
In relation to the maturity, sex, lifestyle and background of the child and of either of the child’s parents, there are no relevant matters.
In relation to if the child is an Aboriginal or Torres Strait Islander child, the child is not an Aboriginal or Torres Strait Islander child.
In relation to the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents, see the comments above.
In relation to any family violence involving the child or a member of the child’s family, this subject has been addressed above.
There are no current family violence orders.
In relation to whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child, the court will attempt to make such an order.
In relation to any other relevant factors circumstance, there are no other relevant factual circumstances.
The mother sought sole parental responsibility and the father sought shared parental responsibility. Section 61DA provides that the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence. I have found that the father has engaged in family violence according to the definition in section 4AB of the Act. Accordingly, the presumption of equal shared parental responsibility does not apply.
The mother submitted that the parents are unable to co-operatively parent and the father uses communication to manipulate or control the mother. Counsel for the mother pointed to a series of SMS messages. However, on my reading of the messages, apart from an instance of the parties having difficulty about agreeing on a changeover location in Brisbane on one occasion, the messages seem to indicate effective, polite communication. There were some examples of the father not replying to the mother or being slow to reply but generally the communication appeared appropriate and effective. Although I accept that the mother, reasonably, wishes any face to face contact with the father to be limited she did not seem disadvantaged by other forms of communication with the father.
Counsel for the independent children’s lawyer submitted that the mother should have ultimate decision making responsibility in relation to the child, although he indicated that this might be by means of an order for sole parental responsibility or shared parental responsibility but with the mother to decide in case of inability to agree.
The resolution of the question of parental responsibility depends, ultimately, on the best interests of the child. I am satisfied that the electronic communications in evidence between the parties did not indicate that the father used them for the purpose of coercion or control or that he otherwise acted improperly. However, on occasions he was unresponsive or delayed his response to the mother. He did not give a reasonable explanation for this. I consider that it is in the child’s best interests that the father be able to participate as fully as possible in important decisions about the child but that if the father is obstructive or unresponsive the mother should have the ability to make the decision.
I propose to make the orders sought by the independent children’s lawyer and with which the mother substantially agrees.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 21 March 2023
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