Hurlock and Laurie
[2012] FMCAfam 304
•5 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HURLOCK & LAURIE | [2012] FMCAfam 304 |
| FAMILY LAW – Contravention application re child – consideration of circumstances of alleged breaches – determination that reasonable excuse available in relation to each breach – longstanding dispute harming child – serious domestic violence – circumstances existing to vary current orders. |
| Family Law Act 1975 (Cth), ss.70NAE, 70NAF, 70NBA, 60B, 60CC |
| Applicant: | MR HURLOCK |
| Respondent: | MS LAURIE |
| File Number: | TVC 1197 of 2009 |
| Judgment of: | Coker FM |
| Hearing date: | 7 March 2012 |
| Date of Last Submission: | 7 March 2012 |
| Delivered at: | Townsville |
| Delivered on: | 5 April 2012 |
REPRESENTATION
| Applicant: | Self-represented |
| Respondent: | Self-represented |
ORDERS
THE COURT HAVING FOUND NO BREACHES PROVEN IN RELATION TO THE ALLEGED CONTRAVENTIONS
That the Contravention Application filed on 7 December 2011 be dismissed.
That pursuant to the provisions of section 70NBA all previous orders made in relation to the parenting of the child, [X] born [in] 2006, be discharged.
That the Mother have sole parental responsibility for the child in relation to the following matters, subject to the communication and notification of such decisions to the Father.
(a)a child’s education (both current and future);
(b)a child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name.
That notwithstanding the provisions of Order 3 herein:
(a)The Mother be responsible for the daily care, welfare and development of the child when he is living with or spending time with her.
(b)The Father be responsible for the daily care and welfare of the child when he is living with or spending time with him.
That the child live with the Mother.
That the child spend time with the Father at times as may be agreed in writing between the Mother and the Father, but that otherwise the Father spend supervised time with the child at Relationships Australia Townsville or at other non-governmental or governmental contact centre as may be able to provide assistance, at times to be advised at least 14 days prior to any such time being spent by the Father with the child to the Mother in writing, and that the Father be responsible entirely for the costs associated with the opportunity to spend time with the child.
IT IS NOTED that publication of this judgment under the pseudonym Hurlock & Laurie is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT TOWNSVILLE |
TVC 1197 of 2009
| MR HURLOCK |
Applicant
And
| MS LAURIE |
Respondent
REASONS FOR JUDGMENT
This matter is before me at the moment pursuant to a contravention application filed by Mr Hurlock on 7 December 2011. I shall, for convenience, refer to him during these reasons as, "the father". The respondent to the contravention application is Ms Laurie, and for convenience I shall refer to her as, "the mother".
The contravention application notes two specific breaches that the father says has occurred in relation to arrangements which were to be put in place with regard to the parenting of the child of the relationship between the mother and the father, [X]. [X] was born [in] 2006 and is therefore at this time a little over five years of age.
The first of the breaches is alleged to be a breach of order 7(g)(iii) of the orders of 5 October 2010. That order, by consent, is in these terms:
7. [X] will spend time with his father at such times as may be agreed between the mother and the father and failing any agreement as follows:
…
g) on [X]'s and the father's birthdays providing both parents are located within 50 km of each other:
…
iii) If the father is not working and [X] is not at school, from 2 pm to 6 pm, and from 3 pm to 6 pm if at school.
The father says, pursuant to that order, that he was entitled to spend time with [X] from 2 pm until 6 pm on [date omitted] 2011. The father says that such time did not occur. The mother denies that there is a breach of that order.
The second count relates to what the father says is a breach of orders 7(c), (d) and (e) of the orders of 5 October 2010. Orders 7(c), (d) and (e) are in these terms:
7. [X] will spend time with his father at such times as may be agreed between the mother and father and failing any agreement as follows:
…
c) Such time will be suspended during any school holiday period (which shall be deemed to include the first weekend after the School term ends and the weekend before school recommences) and to recommence on the weekend after the school term recommences determined as if the sequence had not been interrupted.
School Holiday Periods
d) For one half of all school holiday periods:-
i) being the first half of the Easter, June/July, September/October and Christmas school holidays in even numbered years and
ii) the second half of the Easter, June/July, September/October and Christmas school holidays in odd numbered years; and
iii)provided that the father is on leave from work or has made appropriate arrangements for an adult well known to [X] to care for [X]; and
iv) the father is to give the mother at least 4 weeks notice in the event that he cannot spend time with [X] during any school holiday period.
e) the school holiday periods will commence:
i) if the parenting time falls in the first half of the holidays from 9 am on the Saturday after the school term finishes and conclude at 5 pm on the day calculated to be half of the holidays;
ii) if parenting time falls in the second half of the holidays from 9 am on the day calculated to represent half of the holidays when contact shall end at 5 pm on the Sunday before the School term commences;
The father says that in that regard the mother has breached the order as he did not have the opportunity to spend the second week of the September/October school holiday period with the child. The orders specifically provide in 7(d) that the time to be spent by him with [X] is to occur provided that the father is on leave from work, or has made appropriate arrangements for an adult well known to [X] to care for [X] and, additionally, provides that the father is to give the mother at least four weeks notice, in the event that he cannot spend time with [X] during any school holiday period.
The mother denies the breaches in relation to this matter. In particular, she has detailed in an affidavit filed on 15 February 2012 the concerns that she has in relation to such arrangements. It should also be noted that the order of 5 October 2010 has at order 8 under the heading “Collection and Delivery”, the following notation:
8. Change over will occur in the following manner:
a) when changeover is to occur before or after school, then at the school at the beginning or end of the school day;
b) when changeover is a non‑school day and when it is specified in these orders to be at 5 pm at McDonalds, [Suburb omitted];
c) changeovers to occur with either the father, mother or their nominees delivering and dropping [X] off at the changeover locations in a) or b) above;
d) each parent will ensure the return of [X]'s clothing, school supplies and belongings and his clothing will be returned in a clean condition.
It is perhaps indicative of the level of dispute and distrust that exists in relation to this matter that such specific arrangements as those detailed in order 8 were required to be put in place. However, it should be noted that, notwithstanding the very specific nature of those arrangements, they were not able to be fully implemented by the parties and, in fact, in August of 2011 the orders of 5 October 2010 were amended in a number of respects, including in relation to arrangements with regard to order 8(b), relating specifically to changeovers on a non-school day at 5 pm at the McDonalds Family Restaurant at [Suburb omitted].
Order 5 of the orders of 2 August 2011 are in these terms:
That clause 8(b) of the Order made on 5 October 2010 be amended by deleting McDonalds [Suburb omitted] and substituting the Townsville Contact Centre, Townsville.
That led, if you like, to the first of the difficulties in relation to this matter as noted by the father. [date omitted] 2011 was a Tuesday. It was not, however, a school day because the child attends the [omitted] Grammar School and school had concluded the preceding week, on [date omitted] 2011 and, therefore, handover could not occur at the school. More particularly, of course, handover was then, pursuant to the amended orders of August 2011, to occur at the Relationships Australia contact centre in Townsville.
However, the contact centre is not a 24 hour a day, seven day a week facility, and does not operate at certain times, including those which would have coincided with the times that were purported to be required pursuant to the orders of October 2010. The father communicated a wish to spend time with the child on his birthday through the auspices of the manger of the family consultant service in Townsville, Ms M.
The mother indicated that she was not willing to participate in a handover other than at the Relationships Australia contact centre and that as that was not able to be facilitated, she sought that there be a compensatory time put in place. Ms M sought to facilitate an alternative to that by way of handover being effected at the registry of the Family Law Courts in Townsville, however, that was not acceptable to the mother.
Her position was to say that it was an unsecure venue and that, particularly as the timeframes that were scheduled were between 2 pm and 6 pm, there was no guarantee that there would be easy access at the time of return of the child or appropriate security arrangements in place. As such the mother refused to participate in the handover, though as I indicated did suggest that compensatory time would be provided.
The father's affidavit filed in support of the application for contravention filed on 7 December 2011 is generally silent about what occurred on that day. It is noted, however, that at paragraphs 6 and 7 the following is stated:
6. [date omitted] 2011 is [X] 5th birthday and yet another birthdays without his Father because of his mother nasty vindictive manipulative controlling nature. Court order states [X] is available to spend time from 2pm until 6pm with father, when father not working (days off).
7. Ms Laurie has agreed previously to hand over at Family Court Townsville (see E-mails) but on the above date (29/11/2011) Ms Laurie said no and wants to follow Relationship Australia hours, recorded by a Family Court Counsellor. So this means any of the change over that doesn't fit with Relationship Australia Child Contact Service timetable, Ms Laurie not going to follow Court Orders and that means I'm going to miss out. Yet again a father missing out on one of the most important day in a child life cause of their nasty vindictive manipulative, controlling mother naming Ms Laurie.
The mother's response in relation to that is contained within the affidavit of 15 February 2012 and notes that the school holidays commenced, as I indicated, on [date omitted] 2011, and that the orders which had been agreed previously provided for the child to spend time with her therefore commenced on [date omitted] 2011 and extended to 6 pm on Christmas Eve, being the first half of the school holidays.
Additionally, the mother says that no effort was made by the father to make arrangements for time to be spent with the child until the day prior to the child's birthday, and that therefore the arrangements which were sought to be put in place of [date omitted] 2011, were what I might call negotiations or arrangements on the run.
The mother notes that the Relationships Australia contact centre was not open on [date omitted] 2011 and indicated that she had concerns as to handovers being effected at the registry precinct of the Family Law Courts in Townsville, because of the concerns particularly that I made reference to previously. The mother then indicated that in her correspondence she suggested a compensatory day, but that was not acceptable.
At paragraph 11 of her affidavit the mother notes as follows:
The Applicant would have been fully aware since the Family Court Orders were finalised on 02nd August 2011 that [X]'s birthday would fall under my period of allocated holiday time yet he made no attempt whatsoever to make appropriate arrangements within a reasonable timeframe. What arrangements he did attempt were done through Ms M late in the afternoon the day before [X]'s birthday.
The mother, as I understand the material, sets out in relation to the first count a denial of a breach, but more particularly notes that whilst the father did not have time with the child it was a situation where it could be inferred that she had a reasonable excuse in relation to any breach of the orders. It is noteworthy that a reasonable excuse for contravening an order is set out in section 70NAE of the Family Law Act and, as is relevant here, is in these terms. Section 70NAE(1):
The circumstances in which a person may be taken to have had, for the purposes of this division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
Section 70NAE(2) is in these terms:
A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and (b) the Court is satisfied that the respondent ought to be excused in respect of the contravention.
Here the mother's position is to say that the orders which had previously been agreed provided for an overlap that arose as a result of the school that the child attended, having school holiday periods which commenced prior to the child's birthday in late [omitted] at least in 2011. As such, pursuant to the orders, the child was in one respect to be enjoying time with the mother for a more lengthy holiday period, whilst pursuant to other orders the child was, in fact, to be spending a period of four hours with the father.
The mother suggests that there is an internal inconsistency in relation to the orders and, if nothing else, both of the parents were adamant that the orders as they currently stood were both confusing and in a number of respects inconsistent. Acknowledging that, it is clear that where there must be consideration of whether a reasonable excuse arises on a standard of proof which is based on the balance of probabilities, pursuant to the terms of section 70NAF of the Family Law Act, it is incumbent upon me to err on the side of caution in relation to finding any intentional breach, in relation to the terms of the order.
Accordingly, I am not satisfied that the breach that is alleged in count 1 of the contravention application filed on 7 December 2011 is proven to an extent where the breach occurred without reasonable excuse and, accordingly, it is a situation where the count must be dismissed, and I so order.
I turn then, as I must, to the second count in relation to the matter which relates to the time to be spent by the father with the child during the September/October school holiday period in 2011. The orders provide, as I have noted, for the father to have the opportunity to spend time with the child for the second half of the Easter, June/July, September/October and Christmas school holidays in odd numbered years.
The father suggests that the breach in relation to the arrangements with regard to school holidays arose as a result of the child not being made available to him pursuant to those orders on 25 September 2011. 25 September 2011 was the Saturday which the father says constituted the mid day of the school holiday period and was therefore to be the time for handover of the child. In his affidavit filed on 7 December 2011 the father says at paragraph 8 the following:
25th of September 2011 was the start of my week of school holiday time with [X], I contacted several child agencies for care and/or nanny for five days while I was at work, however only 2 contacted me and found the price was unaffordable for me to pay. Ms Laurie replied an email say tuff I'm not handing over [X]. I never saw [X] during school holiday period. I and Ms M tried to negotiate with Ms Laurie until broke down with "[X] staying with me, Ms Laurie"!
The orders that were made in relation to this matter on 5 October 2010 specifically were silent in relation to what were to be the arrangements in relation to the costs associated with each parent spending time with [X] specifically arising during the longer school holiday periods.
However, it had long been a bone of contention on the part of the father that the costs associated with him facilitating care of [X] during the school holidays was inordinately high and the father's position was, therefore, to say that there should be flexibility in relation to the arrangements with regard to the parenting of the child, such that, for example, he would remain in the mother's care except during certain times that coincided with roster periods of time off by the father.
In response to that contention the mother says at paragraphs 18 onwards the following:
18.There have been ongoing "negotiations" since 02/08/2011 between myself and the Applicant via Ms M in respect of arrangements for the Applicant to spend time with [X] during the period of the September 2011 School Holiday.
19.This particular issue of school holiday time and payment of [X]'s care during these periods has been a significant "bone of contention" with these consent orders. FM COKER had to finalise the decision on 02/08/11 owing to the Applicants unrealistic opinion. In his Reasons for judgment FM Coker has made it very clear that the Applicant must provide care or pay for [X]'s care during his allocated holiday time.
20.It has been obvious from his actions that theAapplicant does not accept FM Coker’s decision and there continues to be ongoing issues with the Applicant's non-compliance with this particular point.
21. On 24th August 2011 I was advised by email to my work email address by Ms M that the Applicant did not want to take [X] for the whole allocated time, but instead wanted to continue to follow his work roster, which would mean the applicant would have [X] from Monday 26th until Wed 28th September 2011. The Applicant did, however, ‘graciously’ offer to pay for the two days of vacation care at [omitted] grammar school pre prep centre for the remainder of his contact period on 29th and 30th September 2011. This offer meant I would still be left with the cost of the Applicants three allocated days for [X]'s day care from Monday 26th Sept - Wednesday 28th Sept 2011.
The issue here related to the question of the costs to be incurred. The father's position has been at all times to demand that the orders which were put in place, and the cooperation that was provided from the mother in relation to the matter, was that he could pick and choose the times that he spent with the child, notwithstanding the orders that were in place with regard to his time to be spent with the child.
The mother's position was to refuse to enter into such arrangements and, therefore, a breakdown subsequently occurred in respect of what arrangements were to be put in place. The father's proposal communicated through emails was then that he have the first week of the holiday period with the child [X]. The mother's position, however, was to suggest that whilst she was willing to attempt to comply with such arrangements, there were other plans made by her in place but she would consent to one overnight period.
Subsequently, and the material is annexed to her affidavit, further messages were exchanged which the mother at least was of the view were abusive and derogatory and, accordingly, she then withdrew the offer that she had put in relation to this matter. The father then in an email indicated that he would not be collecting [X] for the time period and that the mother could breach him. I note that in an email of 26 August 2011 the father says in the final paragraph to the mother, "I won't be picking [X] up over school holiday, so breach me."
The stance now taken by the father in relation to this matter is one that is difficult to fathom. The communication between the parties has been nothing short of appalling, but it is the father who specifically sent an email indicating that he would not collect the child. How it could then be suggested that the mother has been responsible entirely for a failure by the father to spend time with the child is unable to be comprehended.
Without hesitation I would find that the time that the father did not spend with the child was as a direct result of his own actions in relation to this matter. Accordingly, it is clear that whilst the father did not spend time with the child there is, in fact, no breach whatsoever on the part of the mother in relation to this matter and I intend, therefore, to dismiss count 2 in relation to the breach contained within the contravention application filed 7 December 2011.
The application in its entirety therefore is dismissed.
I should note, however, that on the first occasion that this matter came before me, the first return date being 30 January 2012, I specifically indicated to the parties that the situation in relation to this matter had continued to deteriorate and that it was clear that the child was suffering. I indicated, therefore, that I would be assisted by an affidavit filed by each of them in relation to what might be considered to be variations of the orders, in respect of this matter.
I noted, for example, that the proceedings had been on foot for over two years, with the first application filed by the mother on [date omitted] 2009, when orders were sought in respect of the parenting of the child [X]. Of course at that time [X] had not yet turned three, and as a two year old child he was the subject of continued litigation, dispute and hurt as a direct result of the inability of the parents to put the best interests of the child to the fore.
I noted, therefore, that there was a very clear power that the Court held, notwithstanding that the proceedings only related to contravention to vary an order of the Court in relation to parenting. Section 70NBA(1) is in these terms:
70NBA(1) A court having jurisdiction under this Act may make an order varying a primary order if:
(a)proceedings in relation to the primary order are brought before a court having jurisdiction under this Act; and
(b)it is alleged in those proceedings that a person committee a contravention of the primary order and either:
(i)the court does not find that the person committed a contravention of the primary order; or
(ii)the court finds that the person committed a contravention of the primary order.
The parties were asked therefore to clarify the position in relation to this matter and, in particular, the stance they took with regard to the orders that should be made, or at least the variations that should occur, so as to ensure that [X]'s right to a meaningful relationship with both parents, was able to be facilitated.
The father filed a lengthy further affidavit in relation to that direction, but whilst referring to many issues in the past, and the dispute between he and the mother, failed to in any way specifically indicate what variations he sought. On the day of the contravention hearing, therefore, I asked that he specifically indicate what arrangements were sought by him in relation to the future parenting of the child. The best, as I could assess in relation to the matter, that could be enunciated by the father, was to say that he should have options as to the times that he spends with the child, because of the type of work that he does.
On many occasions the father indicated that his work involved a roster which was fluctuating and that that obviously, therefore, gave rise to difficulties as he was not a 9 to 5 Monday to Friday worker, but rather a worker whose time would need to constantly change. The father repeatedly indicated that the orders and arrangements in relation to [X], should centre around him.
I must say that I was somewhat troubled by that because, of course, the paramount consideration is the welfare of the child, and an arrangement which is constantly fluctuating, in other words to make the child what I have heard other judicial officers referred to as, ‘a roster child’, is not an arrangement which is any way appropriate. The father has the opportunity, albeit with difficulty and perhaps with reductions in salary, to obtain or to seek alternative employment which would provide far more opportunities for him to spend time with the child.
I do not for a moment suggest that he must take such steps in relation to the matter, but what I am concerned about is to understand that the father's position is to say, that his wishes should be paramount, and that the child and the mother should reorganise their lives entirely at the father's whim, so as to accommodate the circumstances that exist in relation to his roster.
For example, the father noted that he has already inquired of his employers and that he is unable to get any arrangements in place for school holiday time to be spent with [X] for the next two years, and I assume that that would, therefore, go through until at least the conclusion of the Christmas school holiday period 2013/2014.
The father otherwise, however, says that there should be options, although again that would mean that there would have to be courteous, civil and appropriate communication and exchanges between he and the mother, and every indicator to date has been that that is an impossible consideration.
The mother's position in relation to the matter is just as difficult to accept in relation to arrangements with regard to the parenting of the child, because her position is simply to say that there should be no time spent whatsoever by the child with the father, other than time which is supervised at Relationships Australia. She says that this is for hers and the child's safety, and refers specifically to what she says is a lengthy history of domestic violence in the relationship between she and the father.
The father acknowledges that there has been domestic violence within the relationship and it appears clear that there are concerns that exist in that respect. I note particularly the memorandum that was provided to the Court following a child dispute conference conducted in May of 2011 where Family Consultant Ms K made notes as follows:
A Family Report completed in May 2010, noted that the parents reported their relationship was ‘volatile’, and that the pattern of violence described ‘could be viewed as fitting within a typology of coercive controlling violence’. While it was noted that both parents had participated in violence, it was considered that Mr Hurlock had ‘been the primary perpetrator’ and that Ms Laurie's ‘actions seem more retaliatory’.
A little later on under the heading “Current Dispute”, Ms K noted:
Mr Hurlock appeared to have engaged in abusive, inflammatory and derogatory communication via SMS (as per photograph of mobile phone screen shots - Affidavit Ms Laurie filed 5 April, 2011; Annexure [omitted]). It is noted that Mr Hurlock has referred to these text messages in his affidavit, however, he has omitted these abusive words.
And later under the heading “Issues remaining in dispute”, Ms K makes the following comments:
Mr Hurlock reported that since his application for Contravention, Ms Laurie had not breached the Orders, however, he became agitated and was observed to sit forward in his chair, maintain direct eye gaze and frown. At times during the interview, he spoke in a loud voice in either a belligerent or sarcastic tone of voice. He cited numerous occasions where Ms Laurie has ‘kept [X] away from me’, that she ‘won't answer the phone’, that she ‘forced my hand to fight through the Courts’, and ‘lied’. He repeatedly said that Ms Laurie ‘does not follow the Orders’, however, was unable to provide specific instances that related to the current timeframe. (It is noted that some of the incidences that he referred to are referenced within the file material as events that happened prior to the Final Consent Orders being made. For example, ‘I had to rip him out of Day Care to get my time with him’.
Mr Hurlock frequently referred to ‘my time’ with [X] and he had difficulty in engaging in conversation about how [X]'s experience. It is noted that Mr Hurlock has proposed that [X] be placed in foster care, and it is of significant concern that during discussion regarding how that may be for [X], Mr Hurlock was unable to spontaneously provide any possible emotional response [X] may have and instead, he continued to describe how he considered Ms Laurie has contravened Orders. With specific questioning, Mr Hurlock identified that [X] may feel confused, however, minimised any other possible emotional responses (such as fear).
Mr Hurlock reported that ‘I want an extra night’ and indicated that if Ms Laurie would not agree to that, that he would ‘go back to Court!’. Mr Hurlock became increasingly agitated and reported that ‘the Court Orders mean nothing!’. He made numerous references to recent media coverage of the death of children as a result of custody disputes. He said ‘do you want me to get to a point where I will hunt her down?!’.
Finally, under the heading “Issues Identified By Family Consultant”, Ms K notes:
It is of significant concern that Mr Hurlock appeared to struggle to manage his anger during the Child Dispute conference. This suggests that he has not gained an appropriate level of insight and behavioural skills regarding emotional control.
It is also of concern that Mr Hurlock struggled to maintain a focus on [X]. It is unknown if Mr Hurlock has either limited knowledge and understand of [X]'s developmental needs; or whether Mr Hurlock's inability to effectively manage his emotion inhibited his ability to reflect on [X]'s experiences.
The fact is that the issues that were identified nearly a year ago by Ms K in the memoranda provided following the Child Dispute conference are exactly the same issues that continue in relation to this matter. There is presently before the State Courts litigation arising from what the mother says are breaches of domestic violence orders. The outcomes of those are not clear, but what is obvious from the submissions that were made by the mother in relation to these proceedings is that she has concerns as to hers and the child's safety with the father.
The indications given by the independent assessment provided in the memorandum to the Court is that there are issues with regard to the father to anger management and to control in relation to domestic violence. The father's own submissions to me in relation to this matter is that whilst there was domestic violence between he and the mother, it was a two-way street. I am, however, far more of the view that the position in relation to this matter was much more as was noted in the family report nearly two years ago, which was to the effect that the father was the primary perpetrator and the mother's actions were more retaliatory in nature.
The tragedy here is that this small boy has experienced, for perhaps the entirety of his life, the dispute between his parents, raised voices, exchanges of blows, and hurtful, intimidating, harassing behaviour, perhaps both ways, which continues to this day. The parents are unable to work together, they are unable to communicate and they are unable to in any way facilitate time between the child and the father.
I have little expectation that there can or will be any change in relation to such matters whilst there continues to be any opportunity for interaction between the parents. I intend therefore to significantly vary the orders that are currently in place in relation to this matter. I see no possibility whatsoever of there being a cooperative structure between the parents. I see no possibility of flexibility, or as the father described it in his submissions to me, “options” being available so that consideration could be taken in respect of other times being spent by the father with the child than pursuant to the orders.
I see no cooperation by either parent in relation to issues with regard to care, and I certainly am aware and troubled by the fact that both parents appear to be determined to continue the dispute between the two of them, notwithstanding the terrible hurt that is being perpetrated upon this child. [X] has a right to a meaningful relationship with both of his parents, but he also has, pursuant to the objects of the Act set out in section 60B of the Family Law Act and the considerations that are a reflection of that, particularly those set out in section 60CC(2)(a) and (b), to have protection from the actions of his parents.
He is entitled to a meaningful involvement with his parents to the maximum extent consistent with the best interests of the child, but also is entitled to be protected from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. It is a radical decision that is to be made by me in relation to this matter, particularly when it arises from contravention proceedings, but as I have already indicated the situation is not new.
It is one that has existed for more than two years and no doubt was, in fact, in existence prior to the commencement of proceedings by the mother in [omitted] of 2009. The application filed by her at that time indicates that separation occurred finally in September of 2009, but it is also clear that there existed a volatile and domestically violent relationship, on every level that one can imagine, prior to separation, and that that volatility, lack of communication, lack of respect for each other, and more particularly for the best interests and welfare of the child, have continued.
I intend, therefore, to make orders in relation to this matter which provide for a safe and secure environment for the father to spend time with the child, but also to ensure that there can no longer be the continued dispute between the parties which has been a hallmark of this case since its very beginning.
I intend, therefore, pursuant to the provisions of section 70NBA, to discharge all previous orders made in relation to the parenting of the child [X], born [in] 2006, and to order that the mother have sole parental responsibility in relation to decisions to be made with the long term and day-to-day care, welfare and development of the child.
Additionally, I intend to order that the child live with the mother, and that the child spend time with the father at times as may be agreed in writing between the mother and the father, but that otherwise the father spend supervised time with the child at Relationships Australia Townsville or at other non-governmental or governmental contact centre as may be able to provide assistance, at times to be advised at least 14 days prior to any such time being spent by the father with the child to the mother in writing, and that the father be responsible entirely for the costs associated with the opportunity to spend time with the child.
I am aware that the orders that I make in relation to this matter are draconian in the extreme, but I see no alternative in relation to arrangements to be made with regard to the parenting of this child which provides for the child's physical and, more particularly, psychological wellbeing being preserved, than to make the orders that are in place.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Coker FM
Date: 5 April 2012
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