HURST & GERSTEN

FAMILY COURT OF AUSTRALIA

HURST & GERSTEN

[2014] FamCA 117

FAMILY LAW – CHILDREN – With whom a child lives – Best interests of a child – Abuse and Family Violence – Cultural Issues – Where parties to proceedings are the father and maternal grandmother – Where mother deceased – Where court looked at whether the father posed a risk or unacceptable risk of physical or emotional harm to the child on the basis of sexual impropriety by the father towards his other child, his alleged and admitted alcohol abuse and his history of domestic violence in previous relationships – Where the court found the father was not an unacceptable risk to the child – Where issue of child’s Aboriginality – Where the court found both parties represent an equal opportunity for the child to enjoy Aboriginal heritage and have it projected as a positive feature – Where parties agreed that the resident parent would have sole parental responsibility for the child – Where sole parental responsibility in the best interest of the child – Where the court ordered the child to live with the father and the father to have sole parental responsibility.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA

In the Marriage of Tobin (1999) 24 Fam LR 635
Nineth v Nineth (No.2) (2010) FamCA 114
Donnell v Dovey (2010) FLC 93-428

APPLICANT:

Ms Hurst

RESPONDENT:

Mr Gersten

INDEPENDENT CHILDREN’S LAWYER:

Ms McGarvie

FILE NUMBER:

BRC

10736

2012

DATE DELIVERED:

Wednesday, 5 March 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Tree J

HEARING DATE:

3, 4 and 5 March 2014

REPRESENTATION

THE APPLICANT:

In Person

THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER

In Person

Mr Selfridge

Geldard Sherrington Lawyers

Orders

That all previous parenting orders be forthwith discharged.

That the father have sole parental responsibility for the care, welfare and development of the child, S born …/06/2005 (“the child”) provided that in the exercise of that responsibility:-
(a)The father shall correspond with the maternal grandmother by email to advise her of the decision to be made and provide her with seven (7) days within which to reply;
(b)Take into account any opinions expressed by the maternal grandmother;

(c)Make a decision upon consideration of such opinions not earlier than seven (7) days after the giving of notice under 1(a).

That the child live with the father.
That the child spend time with the maternal grandmother as agreed between the parties but failing agreement for half of each New South Wales gazetted school holiday period commencing with the second half of each period in 2014 and each alternate year thereafter and the first half of each school holiday period in 2015 and each alternate year thereafter.
For the purpose of the maternal grandmother’s time with the child:-

(a)The child’s flights must always be arranged to occur on a Saturday within the school holiday period.
(b)That the father deliver the child to Cairns Domestic Airport at the commencement of the maternal grandmother’s time and the maternal grandmother must ensure that the child is returned to the Sydney Domestic Airport at the conclusion of her time.
(c)That the father provide to the maternal grandmother a copy of the child’s itinerary at least 36 hours in advance.
(d)The person with whom the child is to spend time or live with shall ensure that they are at the airport ready to collect the child at the commencement of their period of time with the child.

In the event that the father relocates with the child to an address within one hundred (100) kilometres of Cairns then;
(a)The grandmother’s time under order 4 shall be altered to the extent that the reference to New South Wales gazetted school holiday period shall be deleted and in its stead Queensland gazetted school holiday period shall be inserted; and
(b)In addition to time under order 4 the maternal grandmother shall have time with the child;
(i)     Each alternate weekend from 9am Saturday until 5.00pm Sunday commencing on the second Saturday after the father’s relocation provided that such time shall be suspended during any Queensland gazetted school holiday period;
(c)For the purpose of time the maternal grandmother shall collect the child from the father’s home at the commencement of time and the father shall collect the child from the maternal grandmother’s home at the end of each period of time;
(d)The party not otherwise spending time or living with the child on the child’s birthday under these Orders shall be entitled to spend time with the child;
(i)     If a non-school day between 12.00pm and 4.00pm on that day;
(ii)    If a school day from after school until 5.30pm on that day;
PROVIDED that the party electing to spend time under this provision shall collect the child from the other party’s home or the child’s school (if Order 6(d) (ii) applies) at the commencement of time and deliver the child to the other party’s home at the end of time.
In the event that father relocates with the child to an address in Cairns then;
(a)The grandmother’s time under order 4 shall be altered to the extent that the reference to New South Wales gazetted school holiday period shall be deleted and in its stead Queensland gazetted school holiday period shall be inserted; and
(b)in addition to time under order 4 the maternal grandmother shall have time with the child;
(i) Each alternate weekend from after school Thursday until before school Monday commencing on the second Thursday after the father’s relocation provided that such time shall be suspended during any Queensland gazetted school holiday period;
(c)For the purpose of time under order 7(b)(i) the maternal grandmother shall collect the child from and deliver the child to the child’s school at the beginning and end of each period of time;
If either order 6 or 7 applies, then the party not otherwise spending time or living with the child on the child’s birthday under these Orders shall be entitled to spend time with the child;
(a) If a non-school day, then between 12.00pm and 4.00pm on that day;
(b)If a school day, then from after school until 5.30pm on that day;
PROVIDED that the party electing to spend time under this provision shall collect the child from the other party’s home or the child’s school (if Order 7(b) (ii) applies) at the commencement of time and deliver the child to the other party’s home at the end of time.
If either order 6 or 7 applies, then for the purpose of time during any school holiday period the grandmother shall collect the child from the father’s home at the commencement of each period of time and the father shall collect the child form the grandmother’s home at the end of each period of time and to that end order 5 is suspended and of no effect.
That the child communicate with the party they are not with as agreed between the parties and failing agreement as follows:-
(a)By telephone between 6.00pm and 6.30pm (AEST) on each Sunday with the party the child is not living with to initiate the call;
(b)By e-mail at all reasonable times;

(c)By post.

That when the child is communicating with the other party each party shall:-
(a)Ensure that the child is available to receive the telephone call;
(b)Arrange for the child to telephone the other party on the following night if, for any unforeseen circumstance, the child misses the telephone call from that party;

(c)Ensure that the child has privacy during her communication with the other party.

That neither party shall discuss these proceedings with the child.
That during the time the child is with either party, that party shall:-
(a)Respect the privacy of the other party and not question the child about the personal life of the other party; and
(b)Speak of the other party, their partner, their family and friends respectfully; and

(c)Not denigrate or insult the other party, their partner, their family or their friends to or in the presence or hearing of the child; and

(d)Use their best endeavours to ensure that others do not denigrate or insult the other party, their partner, their family or their friends to or in the presence or hearing of the child.

That the parties shall keep the other informed of the child’s doctors, health care and other treatment providers and authorise those practitioners to provide the other party with information that they are lawfully able to provide about the child and this Order shall serve as such authority.
That each party shall inform the other party as soon as reasonably practicable of any medical conditions, significant health issue or significant illness suffered by the child and authorise any treating medical practitioner to release the child’s medical information to the other party.
That the parties shall keep the other informed of any day care, school, educational facility or extracurricular activity provider and authorise those providers to provide the other party with information that they are lawfully able to provide about the child and the option to purchase school photographs and this Order shall serve as such authority.
That if there is a cost associated with the provision of any information or documents under these Orders from the child’s doctors, health care and other treatment providers or day care, school, education facility or extracurricular activity provider the expense shall be borne by the party requesting the information.
That the parties do all acts and things necessary to facilitate the child’s attendance upon a counsellor to provide her with support following the loss of her mother and sister and her change of living arrangements.
That the parties be restrained from consuming alcohol in excess of the legal driving limit during any period when the child is in their care.
That the parties not consume for 24 hours prior to and/or during their time with the child or be under the influence of any illicit drugs whilst the child is in their care.
That each party is restrained from recording, including but not limited to audio or video recording, communication between the parties or the other party and the child.
That the Independent Children’s Lawyer is authorised to provide a copy of all three family reports of Mr K and a copy of these Orders to the Town B Child Safety Service Centre pursuant to Section 121(9) of the Family Law Act 1975.
That the Independent Children’s Lawyer be forthwith discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hurst & Gersten has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10736 of 2012

Ms Hurst

Applicant

And

Mr Gersten

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

INTRODUCTION

These proceedings relate to the parenting arrangements for the child S, (“the child”), born in June 2005, and therefore presently eight years of age. She was the sole survivor of a car accident in late 2012 in which her late mother and sister, C, tragically were both killed. The parties to these proceedings are the child’s father and her maternal grandmother. It is common ground that, in the immediate aftermath of the accident, and in the course of the inevitable grieving of all of the relevant parties and families and the funeral arrangements, the father and maternal grandmother’s lines of communication were terribly damaged and that has been, until very recently, a major feature of the relationship between them.
Fortunately, during the course of this trial, and due, I suspect, in large part to the intervention of a family consultant, Ms D, the parties are now committed to having a far more healthy relationship and communication regime between them. They are to be applauded for that. It is only if the parties can remain committed to making their communications between them respectful and child-focused, that the optimum potential of the child will be achieved. I would encourage them to keep on the path which they have been ambitiously and courageously embarking on in the last 48 hours.
The fact of that communication between them and, no doubt, in large part also due to the assistance of the Independent Children’s Lawyer and her counsel, that which was a seemingly unfathomable divide between the parties has, in large part, been reduced to a dispute in relation to one issue alone, and that is with whom the child should reside. The balance of the orders which, of course, depend upon the principal residence of the child are otherwise, with one small exception, agreed between the parties.
Particularly, it is agreed that parental responsibility should reside with the parent who provides the principal care to the child, but that there should be, subject to the parties’ geographical separation, substantial holiday or other time spent between the non-resident parent and the child. So although these proceedings commenced with little agreement in relation to what should occur, now the parties are agreed in substance as to what should occur, save for with whom the child should principally live. The small exception to that relates to the time that the child should spend with the father in the event that she were to reside principally with the maternal grandmother.

THE LAW

I turn now to consider the law. A convenient starting point is section 61DA of the Family Law Act which, by subsection (1), provides that the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that either because that presumption applies or because it is otherwise in the child’s best interest that there be an order providing for equal shared parental responsibility, the Court is obliged pursuant to section 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents or substantial and significant time.
However, section 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in either abuse of the child or another child who at the time was a member of the parent’s family or that other person’s family, or family violence. Further, section 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
Finally, section 60CA provides that, in deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration. The matters which a Court must have regard to in determining the best interests of a child are set out in section 60CC. It will be immediately appreciated that these provisions are something of an awkward fit to this case, given that it is not a dispute between two parents, but rather between a parent and a grandparent.
A grandmother is not a parent for the purposes of the Family Law Act (see In the Marriage of Tobin (1999) 24 Fam LR 635 and the subsequent discussion of Murphy in Nineth & Nineth(No. 2) (2010) FamCA 114 at paragraphs 51 to 54). Many of the factors listed in section 60CC relevant to determining where the best interests of a child may lie refer specifically to parents. Moreover, the objects of Part VII of the Act also specifically refer to parents. No doubt, this is in part because the vast bulk of parenting cases, both in this Court and in the Federal Circuit Court, involve parents as active protagonists in the litigation.
However, even in cases which do not involve both parents as active protagonists, the objects of the Act and the section 60CC considerations which refer to parents still have a role to play. I can identify at least two ways in which those objects and considerations remain relevant. Firstly, the Court must consider those objects and considerations even if they are not consistent with respective cases advanced before the Court. Secondly, to the extent that those considerations require the Court to consider the competing attributes and proposals of parents’ cases, it is necessary they should cause the Court to undertake a similar exercise by reference to similar matters, albeit between the parties actively engaged in the litigation and their proposals.
Whilst as discussed by the Full Court in Donnell & Dovey (2010) FLC 93-428 at [99], that might usually be best undertaken by reference to section 60CC(3)(m), on a practical level in this case, it will be convenient to, where appropriate, do so by specific reference to the individual considerations pertaining to parents under section 60CC.

THE FACTS

General

I turn to consider the background facts to this case. The mother and father entered into a relationship at a time when the father already had a child to another relationship, that child’s name being E who was born in 1996. At the time that the mother and father commenced their relationship, E lived with the paternal grandmother and had done so for some time. The father and mother separated finally in 2010. It seems to be not in dispute that between final separation and the time of the accident in 2012, the father spent little, if any, time with the child and her sister, C.
In the aftermath of the accident in late 2012, the father took the child to live with him and the paternal grandmother in the small central-west New South Wales Town F. In part, the reason for him doing so related to the terrible conflict which then existed between the maternal and paternal family groups. As I have already noted, that tension persisted to trial, led to poor communication, and suspicious interpretation of what might have otherwise been relatively benign events.

The issues

The litigation before me, as I have indicated, narrowed its focus substantially during the course of the trial. Ultimately, there were two substantial issues and one less significant issue which really were the battlegrounds between the parties. The first issue was the extent to which the father represents a risk or, perhaps more precisely, an unacceptable risk of harm to the child when she is in his care, that harm either being physical or emotional.
That risk of harm was said to arise by virtue of three considerations. The first is allegations of sexual impropriety by the father towards the child E. The second is the father’s alleged and, to a large extent admitted, abuse of alcohol. Third is the father’s terrible history of domestic violence in previous relationships, including with the child’s mother. That is the first major issue.
The second major issue is the child’s present attachments to those not only involved in the litigation, but those associated with them and, more particularly, the likely effect on her of any change to the circumstances in which she enjoys and experiences those attachments. That is the second major issue.
The third issue which ultimately does not appear to be determinative in this case is the Aboriginality of the child. I will consider those matters in that sequence.

Father’s sexual abuse risk

I turn then to the risk of harm that the father is said to present to the child S and shall firstly discuss the sexual risk. This arose because of an internet conversation which E had with the maternal grandmother. That conversation occurred in about late April 2013. There was a serious allegation – or, more precisely, allegations – made by E in the course of that communication. The grandmother had written to E in the following terms, albeit in the context of an ongoing conversation:
When you have a spare moment, can you write me a few things on here what happened with [the child] when she came to [the father’s] care. Also a little about what has happened to you. I have emailed my solicitor and will let you know when I book your ticket. Love you honey.

To this, E responded as follows:
[The child] has been restricted to a lot of things like TV time, the food she can eat and what she can say. She isn’t allowed to talk about [C] or [her mother] unless she is in counselling. She isn’t allowed to friends’ places or have friends over. [The father] hit her on quite a few occasions when I was there. I was concerned when [the father] and [the child] were sharing the bed in the beginning but she swore he didn’t touch her. I believe otherwise and Dad shot up morphine in front of her at one stage. I went ballistic. And, well, what’s happened to me – well, where to start? He has beaten me repeatedly and, um, sexually abused me but I am wary of mentioning of that to the Court with him going to be there. He used to flirt with me when I was at home and try to chat me up. He tried to talk me into having sex with him and, if I didn’t, [the child] would get it instead. I got on the ice after he had said that so I was awake all night to watch my sister. [Ms G] knows all of everything, is aware she is just as twisted as he.
I should say that in reciting that email communication, I have not adverted to the several abbreviations or other unusual aspects of spelling and grammar, but rather have tried to recite it contextually and as it was no doubt intended to be understood. That email formed the basis of a notification by the maternal grandmother to the New South Wales Department of Community Services. They investigated. In the tender bundle of subpoenaed material which is before the Court, there is evidence of the results of their investigations including a telephone call to E.
At page 129 of the tender bundle, there is recorded in an assessment record of the Department of Community Services the following, which I should indicate whilst obliterating all identifying references to persons, appears clearly to be a conversation with E. It relevantly reads:
I told [obliterated] that I was following up on a report we received stating that there were concerns for [obliterated] living with her [obliterated]. I asked [obliterated] if she had any concerns with her living there. [Obliterated] stated, “I don’t want her there. It is not safe. It’s a dangerous environment between [obliterated]. [Obliterated] lived with [obliterated] for years and she is a bad person. She is a heavy drinker and is addicted to morphine. So is [obliterated]. He kicked me out this last time and I will never go back. I only went back this time to help [obliterated] when her mum died.” I asked if there was any particular reason why she left. [Obliterated] stated that “I had been sexually abused by [obliterated] since I was five years old. He didn’t live with us permanently but every time he came back into the picture, he forced me to have sex with him. He even did it when I came back because of [obliterated]. I tried to save her from him but I couldn’t stay there any longer.” I asked [obliterated] if she had ever reported this. [Obliterated] said, “No. I have been sexually abused before and the police did nothing. They never believe me so I will not report anything to them.” I spoke to [obliterated] and reassured her that we are assessing where [obliterated] is living. I thanked her for talking to me and checked that she was okay. She stated she is better now she is not living there.
Not surprisingly, that matter was then passed on to the New South Wales police. Amongst the evidence before me was oral testimony from a Detective H, who gave evidence as to the extent and content of the New South Wales police investigations. That included having a conversation with E in which, in essence, she declined to press any complaint in relation to the father. She said that the father had “crossed boundaries” with her in his behaviour, but that was all behind her and she was getting on with her life. At that stage, it appears as though she was in fact about to commence drug rehabilitation in Canberra, which so I am advised, it is likely she continues to be undertaking there.
She gave police an incorrect phone number and hence further contact with her has not been possible. The New South Wales police, in those circumstances, have closed their case. There was during the course of the trial evidence which suggested that although initially the Department of Community Services may have closed its case, it in fact had been re-opened recently. Testimony was ultimately received from a witness employed with the Department who gave evidence that the only reason why the file had been re-opened was in consequence of a boundary adjustment between regions within the Department and that, although the matter was listed in a meeting for discussion tomorrow, the nigh inevitable outcome would be that the case would be closed, as there was no fresh information.
As I have said, the only basis for the allegation that the father sexually abused E are those communications which I have referred to. They, of course, were not given under oath. They have not been able to be tested by cross-examination and most noteworthy is that they contain almost no specifics. For instance, there is no specificity as to date, as to location – although perhaps that can be inferred – and, critically, no detail as to what it is said to have comprised the sexual misconduct or impropriety.
Also it needs to be emphasised that E appears to have been well aware that she was making her allegations in the context of the current proceedings. The motivation for her becoming so involved in these proceedings is not altogether clear, although if it was said to be an altruistic one, that altruism seems to have rapidly abated when the authorities were involved.
Whilst this case may have had a quite different complexion had there been some further detail, or if there had been assistance beyond that which she gave to the authorities, offered by E, even taking her evidence at its highest, its imprecision and the other adverse features of it to which I have adverted would not permit me to conclude, that the father had sexually abused E. Such an allegation, of course, is a particularly grave one, and whilst I would only need to be satisfied on the balance of probabilities, nonetheless I would need to achieve that state of satisfaction mindful of the gravity of the allegation. I am not so satisfied.
That allegation is, of course, the only basis from which it could be inferentially argued that the father represents an unacceptable risk of sexual abuse to the child when she is in his care. Suffice to say that I am not persuaded to the requisite standard, based upon the allegations that have been made by E both to the maternal grandmother and to the Department and to police, that the father represents an unacceptable risk of sexual harm to the child.

Father’s alcohol abuse risk

I turn then to the asserted risk in relation to alcohol. This is of a somewhat different character. The father admits to the abuse of alcohol, and admitted in evidence in chief and cross-examination that he has problems, and that he needs help, although to his credit he has, at least to a degree, already sought that help.
He identifies stressors which he says caused him in the past to excessively abuse alcohol. They include the death of his father and more recently the death of his half-brother. The latter involved not only the death of the brother by suicide, but immediately beforehand it appears as though his brother also killed someone else. I accept those events necessarily must have been stressful for the father. In addition to his admission of past abuse of alcohol, is the fact that he has in recent times failed to undertake testing of him intended to allow an objective determination of the extent of his alcohol abuse. He claimed under cross-examination that the reason for him failing to undertake those tests was because he could not afford them. They cost $200 a time. He appears to earn in the vicinity of $820 per fortnight and I suppose it is conceivable that he could not have, in anticipation of likely events, saved up to make these tests.
I note that he admits that he does have a problem with alcohol and on occasions has abused it. He currently reports that he drinks four mid-strength stubbies per day and, assuming that reporting is accurate, that of itself is unlikely to be problematic, although I accept it no doubt passes or exceeds relevant recommended maximum intakes. However, I say it’s unlikely to be problematic because, firstly, it does not appear to be, assuming it is an accurate estimate, a grossly excessive intake of alcohol and, secondly, the father says that he only commences to drink of an evening at about 8.30 pm. Further, the reports in the tender bundle don’t suggest that the child’s care by the father has been adversely affected in consequence of his alcohol intake, even on the occasions following the death of his father and his brother. I will refer to those reports in a little detail later in these reasons, but it appears as though the child has had a good school attendance in Town F and she is healthy in appearance and well-presented.
None of that is suggestive that, in fact, any abuse of alcohol by the father has expressed itself in adverse care of the child. In addition, the father resides with the paternal grandmother and so long as he continues to live in Town F, will likely continue to do so. The paternal grandmother gave evidence before me. Whilst she has a bad back condition, she struck me as a common sense woman likely to be protective in relation to the child in the event that the father did expose her to some risk in consequence of abuse of alcohol. In my view, the fact that the father is residing with the paternal grandmother is an important factor in assessing any risk.
Weighing all of those matters in the balance, I am of the view that whilst it must be acknowledged that there is an existent risk of the father abusing alcohol, and hence a risk that there may be some adverse consequence to his capacity to care for the child, I do not assess the risk to be of any substantial magnitude.

Father’s domestic violence risk

I then turn to the risk said to arise from domestic violence. It must be said at the outset and, indeed in fairness to him, was conceded by the father, that he has an appalling history of domestic violence to some of his partners. Worse, this domestic violence, and to his credit he concedes, horrifically was in front of the children on occasions.
In answer to a question from myself, the father identified that the perpetrating of domestic violence in front of children effects harm to them. Further, he identified, with what I find to be real conviction, that he recognises that anger is not an appropriate response or coping strategy in domestic relationships. I was particularly impressed by his evidence that even during the course of these proceedings, he has experienced anger but was able to deploy strategies which he has had taught to him in two courses that he has undertaken, in order to deal with it.
As I say, I thought that aspect of his evidence was particularly compelling. Also compelling was the fact that he identified that, during the course of his last domestic relationship, notwithstanding what appears to have been some degree of provocation by his then partner, he abstained from domestic violence and, indeed, the material in the tender bundle would tend to objectively support him in that respect. Whilst, as I say, the father’s history of perpetrating domestic violence is appalling, nonetheless, I accept his evidence that he would not engage in that in the future or, at least, would try and exhaust every other strategy that he has been taught before reverting to domestic violence.
I should also say that, other than E’s allegations that the father hit her and perhaps hit the child during the time that the child was living with them in Town F, there is no other suggestion that the father has engaged in domestic violence in that town. Whilst the father’s past behaviour is concerning, there is not on the material before me a sound basis for me to conclude that the father either now, or in the future, presents a real risk of physical or emotional harm to the child based upon the prospect of perpetration of domestic violence. Again, whilst I cannot exclude the existence of a risk at all – the father’s history would preclude that – I am nonetheless persuaded that the risk is not of a magnitude that could be said to lead to a conclusion that the father represents an unacceptable risk of harm.

The child’s attachments and relationships

I next turn to a consideration of the child’s present attachments, and the effect or likely effect, of changes of circumstances upon them. The first matter, which does not appear to be in contest, is that as of late 2012 the child’s primary attachment was with her mother. Additionally she had an important sibling relationship with C. Both of these abruptly and wholly came to an end as a consequence of the accident.
As at January 2013 some insight as to the child’ s attachments can be had from the report of Ms J arising from her consultations with the child on 15 and 21 January 2013. At page 140 to 141 of the tender bundle there appears in that report as follows:
[The child] often dreams of her mother and her sister. Sometimes the dreams are nightmares which she did not want to discuss because they were freaky. When I inquired about whom she can talk to about these scary dreams she identified her maternal grandmother. She went on to state that she talks to her grandmother about her mother and her sister and it appeared that she enjoyed those talks. She was preoccupied with [C’s] imminent birthday. When I inquired who else she could talk to, she said, “I don’t know.” And when I suggested she talk with her dad, she shook her head indicating no.
Using play therapy [the child] described her father as “Always working, like, dad doesn’t do much.” And her paternal grandmother as, “She sits and watches TV a lot,” and her maternal grandmother as, “She’s fun but she has a sore back and needs to lie down sometimes.” [The child] had been speaking with her father on the phone while she had been in Cairns. He makes her feel bad when he says things about her maternal grandmother. She refused to elaborate. When I introduced the topic of going back home [the child] became very quiet. She tried often to change the subject and offered only the following: “I love living in Cairns. I love everything here.” She then said that she was feeling sick and ended the session.
A review of Ms J’s contemporaneous consultation notes shows that not only did the child begin to feel sick and ended the session, but she thereupon asked for the maternal grandmother. Whilst the Family Report writer in this matter, Mr K, did not necessarily accept that that report was indicative that the child’s then primary attachment was with the maternal grandmother, it certainly, to my reading does not suggest anything consistent with her then having a primary attachment to the father. There would, of course, have been a great deal of turmoil in the young child’s mind at that time, but the clear indication appears to be that she was then obtaining support and emotional comfort from the maternal grandmother, rather than the father.
However, since then the child has been in the primary care of her father, albeit that she has spent holiday time with her maternal grandmother. The tender bundle includes some material, both from her school and from other relevant authorities, from which a more recent indication of her relationship with her father can be discerned. At page 128 of the tender bundle there is a file note record compiled by the Department of Community Services. It relevantly reads:
[Redacted]. Discussed [the child’s] last visit to see her nanny, [the maternal grandmother]. [The child] said, “Mmm, it was okay. We did some fun things,” but did not elaborate. When asked of [the child] was looking forward to seeing [the maternal grandmother] again, [the child] replied, “I’m not sure,” and shrugged her shoulders. [the child] told [redacted], “She likes [Town F], likes living with daddy,” and enjoys her current school.” [The child] did not list any dislikes about [the father] or living with [the father]. [The child] informed [redacted] that she was going to get her ears checked in [Town L] at lunch time and [the father] and [Ms G] were taking her. [Redacted] asked [the child] about phone contact with [the maternal grandmother]. [The child] said she liked talking to [the maternal grandmother] sometimes. [The child] said, “[The maternal grandmother] sometimes talked about [the father],” but did not identify anything in particular. [The child] said [the father] did not talk about [the maternal grandmother] to her. Interview ended. [Redacted] and [the child] discussed general topics such as school and friends before [the child] returned to her class.
Some additional insight can be obtained form a report in the tender bundle from the [Town F] Public School at page 147. It relevantly reads as follows:
Since the very beginning of her time at [Town F] School [the child] has settled in extremely well and is a very happy and content student who tries her best at all times. She has made friends easily and loves to come to school every day. [The child] has always completed her homework each week and participates in the home reading scheme each night. [The father] has brought notes in regarding school events and has always let the school know in advance of any absence that [the child] has had, which has been due to doctors appointments and set counsellor’s appointments that have been requested through the child protection case plan. [The child] has always attended school with a clean and tidy uniform, her hair is always nicely done, she has a well-packed lunch each day and is always picked up and dropped off in an orderly manner and on time.
There is other contemporaneous material in the tender bundle of a like character. It suggests – and I find – that the present primary attachment which the child has is to her father. She probably also identifies the paternal grandmother as an important figure in her life, however let it be said there is no doubt that the maternal grandmother presents as an important figure in her life as well. However, it seems to me, if only by virtue of the far greater time that she has spent with the father since late 2012, the child’s present attachment is to her father.
The third matter to which I wish to advert under this heading is the fact that up until late 2012 the child had a very disrupted upbringing, both geographically and at times emotionally. It is unproductive to describe that history in any great detail, however suffice to say that she has lived, up until late 2012, in numerous locations with several persons other than her mother and on occasions her circumstances appear to have been far from ideal.
The Family Report, unsurprisingly, deals with the child’s views. I do not stay to recite the content of the interview and the observations which the Family Report writer had with and of the child, save to say that the child most recently reported a desire to live with the maternal grandmother, albeit that she was prepared, it appears, to accept continuing to live with her father. Based upon an overall consideration of the material, the Family Report writer said as follows:
It is a challenge to actively endorse a further disruption to [the child’s] care, relationship and living arrangements where she has been with [the father] and Ms [G] and at a school and in counselling in New South Wales for the past several months with reports that she was settled and happy, setting aside concerns about [the father’s] parenting capacities and/or commitments.
In his cross-examination the Family Report writer explained that essentially he was saying that there was no basis for disrupting the child’s care unless there was a risk which the father presented to her which would justify that disruption. He agreed with my comment that such an approach was, “If it ain’t broke, don’t fix it,” but “he wasn’t saying that it wasn’t broke.” I accept that.

If there were to be further disruption to the child’s primary attachment care arrangements and living arrangements, that would likely have some adverse effect upon her. I say that particularly because, she has, in recent times suffered the complete loss of her primary attachment to her mother and the complete loss of an important sibling relationship with C. In my view further disruption to her present attachments and relationships should not be undertaken unless there is an outweighing benefit to the child. However I do acknowledge that the relationship which the child has with her maternal grandmother is a deeply loving, caring, affectionate and warm one. That is to be expected, not merely because of the relationship of grandmother and grandchild, but also because of the special character which that relationship represents because, of course, the child is the last living reminder of the grandmother’s own daughter. It is perfectly understandable that the grandmother views the child as a particularly precious and loving child. Nonetheless, barring a risk of harm associated with the father that outweighs any further disruption of her attachments, it is indeed, as the Family Report writer has said, difficult to justify such interruption.

Child’s aboriginality

I then turn to the third issue, which is the child’s aboriginality. The first point to note is that it is derived from the maternal grandfather, with whom the maternal grandmother does not enjoy a good relationship. Secondly, it seems that the fact of aboriginality either has been only recently come to the knowledge of the maternal grandfather’s family, or even if it is more established knowledge, there doesn’t appear to be any actively practised Aboriginal culture engaged in by the immediate family of the maternal grandfather.
At the moment, on the evidence, it seems to me as though really this issue is more one to the effect that the child needs to be aware of her Aboriginal heritage, and needs to have that knowledge projected as a positive feature of her identity. There does not appear to be any immediate content beyond that knowledge which would flow from her experience of that relationship via her maternal grandfather or other members of that family. Ultimately, as the Independent Children’s Lawyer said, both parties really present an equal opportunity for the child to enjoy that heritage and to have it projected as a positive feature of her identity. Ultimately, the issue of aboriginality, whilst one which I take into account, is one which doesn’t weigh in either party’s favour.

Traverse of s 60CC factors

It will be appreciated that much of what I have already addressed by reference to the three main issues in this case deals with considerations which I am obliged to have regard to under section 60CC of the Family Law Act. Whilst I have identified the three main issues, however it seems appropriate if I also briefly address the considerations in the order in which they appear in section 60CC.
Firstly, as to subsection (1)(a) I identify that there is a benefit to the child in having a meaningful relationship with her father, her maternal grandmother, her paternal grandmother, and her maternal grandfather. There can be no doubt that all of those people have a substantial role to play in her life.
As to section 60CC(1)(b), the need to protect the child from physical or psychological harm, etcetera, I have already dealt with that in relation to the major issue in this case. I accept that by virtue of section 60CC(2A) that is the primary consideration which needs to be given greatest weight, and I do give it that weight.
Turning then to the additional considerations in section 60CC(3)(a), the first is the views expressed by the child. I have already referred to the views of the child contained in the Family Report at paragraphs 54 to 58. However, in the context of an eight-year-old child, whilst I give them some weight, it is not much. As to paragraph 3(b), the nature of the relationship of the child with its parents and other persons, including grandparents, here as I have already identified, the child does enjoy a good relationship with both her father and, it would appear, both of her grandmothers. She does have a relationship with her paternal grandfather, but it appears as though it is restricted to the telephone. I have already remarked upon the character of the several relationships with the other players.
As to section 60CC(3)(c), the father has historically not taken the opportunity, prior to late 2012 and post separation, to make decisions in relation to the child, to spend time with her and to in any meaningful way communicate with her. He says that he had little opportunity to do so because the mother refused to let him. That might normally be a matter which warranted further investigation in this case, however, I accept that the events of late 2012 have dramatically changed the landscape, as to the father’s attitude to parenting generally and the child in particular.
Section 60CC(3)(ca) does not appear to be a live issue on the evidence in this case. Section 60CC(3)(d) deals with the likely effect of any changes in the child’s circumstances. This is an important matter and I’ve already addressed it in the three main issues in this case.
As to section 60CC(3)(e), the practical difficulty and expense of a child spending time with and communicating with a parent, etcetera, is a real issue in this case. The father lives in central-west NSW Town F, the maternal grandmother in Cairns. A vast distance separates them. I will deal with that in due course when considering orders.
The consideration in 60CC(3)(f) deals with the capacity of the parents and other persons to provide for the child’s emotional, intellectual and other needs. I have adverted to the evidence, which suggests that the child is presently doing well at school and that she is physically well. This would suggest that her needs, both emotional, intellectual, physical and otherwise, are presently being adequately met by the father. The maternal grandmother is largely untested in relation to the provision of those needs on a long-term basis, but that said there is no reason to entertain any real belief that she would not be able to do so.
As to subparagraph (3)(g), I do not identify that that is presently a live issue in this case. Subparagraph (3)(h) deals with Aboriginality. I have dealt with that as the third main issue. As to subparagraph (3)(i), which is the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents, it has to be said that the father had, prior to separation from the mother, adopted a role primarily of breadwinner and physical provider for the family, and it appears as though the other responsibilities largely devolved to the mother, albeit the father says that she discharged those poorly on occasion.
However, after late 2012, it has to be said that the father has demonstrated a completely different approach and has shouldered the responsibilities of parenthood to the best of his ability. The maternal grandmother, of course, has shown a great desire to assume responsibilities in relation to the child, albeit by virtue of the orders which have prevailed, has not been able to do so. I accept, however, that she wishes to.
As to (3)(j), family violence, I have already adverted to this previously in these reasons. It is extensive and worrying. However, I am of the view that at least since late 2012, the father has evinced a determination to wholly disassociate himself from family violence. Subparagraph (k) is relevant, however, is sufficiently addressed in these reasons, as already delivered.
Section 60CC(3)(l) is relevant here. It says that the Court must consider whether it be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child. In my view, it most definitely would be desirable to make an order which would be least likely to lead to further proceedings in relation to this child. The history of conflict between these parties speaks only to that result.
As to (3)(m), any other fact or circumstance that the Court thinks relevant, I have already identified that because of the way in which section 60CC factors are cast, there is authority to suggest that under (m) I should consider the relevant matters raised in section 60CC, albeit in the context of the maternal grandmother. For reasons I have already given, I have chosen to deal with them under the relevant section 60CC criteria themselves.
There is, however, one other fact or circumstance, which the Court thinks relevant and that is the prospect that the father may change his residence from Town F, NSW to somewhere closer to Cairns. He identified in his evidence his desire to return to Queensland, probably most likely Town M, Wide Bay-Burnett region of Queensland. He has family association there and grew up there. It appears to be, if not his present physical home, then what he regards as his “essential” home.
However, he also identifies that it would be in the child’s best interests were he to relocate to Cairns.
He says that for two reasons. Firstly, in the event that she were in his primary care, it would enable her to have more time, and hence probably a better relationship, with the maternal grandmother. He identified that that would be in her best interests and I agree. I pause to note that that shows the substantial change in the way in which the father was approaching the maternal grandmother during this case. The other reason why he identified it would be of advantage to move to Cairns is in the event that the child were to primarily reside with the maternal grandmother, the benefit being that he would be able to spend more time with the child, which he identifies as being in her best interests. In that event, I would also agree.
The difficulty is, however, precisely where in Queensland, if at all, the father might relocate to. Particularly, there is the problem that if the father were to move to Cairns, he may not necessarily move to a location from which the child would be able to go to school from both his home and the maternal grandmother’s home.
Therefore, it was agreed in the course of discussion that the orders as ultimately made should contemplate three scenarios. Firstly, the father continues to reside in Town F, NSW. Secondly, the father resides in Cairns at a location sufficiently close to where the maternal grandmother is residing so as the child could travel to school from both houses and, thirdly, that the father relocates to an area around Cairns, but not to a district that is sufficiently close from which she could attend school from both his home and the maternal grandmother’s home.
It was agreed that in the event of the latter, then practically the time that the child could spend with the non-primary resident parent would be from Saturday morning until Sunday afternoon. In the event that both homes were within sufficient distance that the child could attend school from them both, it was agreed that the time that the non-resident parent should spend with the child should be from after school on Thursday, until before school on Monday.
In those scenarios there would, of course, also no doubt be the usual orders in relation to half of birthdays (both the child’s and the parents’) Mother’s Day, Father’s Day and the usual suite of orders which deal with those sorts of matters. The parties did not identify any reason why such orders as would normally be made should not apply in this case.

WHAT ORDERS ARE IN THE CHILD’S BEST INTERESTS ?

That concludes my consideration of the factual issues in this case. I turn then to consideration – weighing of those factors with a view to, firstly, the question of parental responsibility and, secondly, as to whom the child should live with.

Parental responsibility

As to parental responsibility, the parties have agreed that, irrespective of in whose care the child is in or where the father lives, parental responsibility should vest in the party with whom the child principally resides. I accept that there are many good reasons for that, including at present, geography. However, I also accept that notwithstanding the good start to the resumed relationship between the parties, it is presently not able to be confidently said that it will continue with the fervour or optimism that presently attends it in the future.
Based on the material before me, I agree that parental responsibility for the child should vest with the primary resident parent. However, I also accept that the regime contemplated in the orders handed up by the Independent Children’s Lawyer, which see, irrespective of whom is the primary resident parent, the non-resident parent being obliged to be consulted in relation to the exercise of parental responsibility, is in the child’s best interests. As I have said, the parties have much to offer this child and it is to be hoped that they will do so co-operatively.

With whom should the child live?

I turn then to a consideration of the principal matter in this case, and that is with whom the child should live. In my view, the two principal issues in this case weigh in favour of her present living arrangements continuing. In my view, it would be most unwise, given the unfortunate tragic history in recent times which this child has lived through, to again put her through a change in arrangements, which would see her primary care relationships and her primary attachments affected. That, in my view, ultimately is the deciding issue.
If the father had been found to present a sufficiently serious risk of harm to the child, then it may be that minimising that risk by disrupting her attachments and her present arrangements might have been justified. As has been seen, I do not find that such a risk exists and certainly to the extent that a risk exists, it is not of a magnitude to justify changing care arrangements.

ORDERS

There will therefore be orders in terms as handed up by the Independent Children’s Lawyer that pertain to the child living with the father and the father having sole parental responsibility. I should also say that I am content with all of the orders at 1 to 18 of those set of orders and I am satisfied that they are in the child’s best interests. However, what those orders do not deal with is the other two scenarios, namely, what should occur in the event that the father relocates to Cairns district, and the sub-scenarios within that.
I have attempted in these reasons to make it clear what it is that I propose should occur in that event. By virtue, in large part, because I have delivered these reasons ex tempore shortly after the conclusion of the trial, it has simply not been possible for me to formulate the usual suite of orders which would accommodate both of those scenarios. However, these reasons should be sufficiently plain to enable such orders to be drawn. Subject to any contrary submission, it is my intention to ask, or if needs be, direct the Independent Children’s Lawyer to bring in orders on those scenarios consistent with these reasons.

RECORDED : NOT TRANSCRIBED

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 5 March 2014.

Associate:

Date: 5 March 2014

[2014] FamCA 117

5 March 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Procedural Fairness