KALLOWAY & CECCHI AND ORS

[2017] FamCA 332

FAMILY COURT OF AUSTRALIA

KALLOWAY & CECCHI AND ORS [2017] FamCA 332

FAMILY LAW – CHILDREN – Family Violence – Whether father poses a risk to the child- Interim proceedings – Use of alcohol and other drugs – Parental capacity  

Family Law Act 1975 – s 60CC, s 62G(2)

Deiter & Deiter [2011] FamCAFC 82

APPLICANT: Mr Kalloway

RESPONDENT: Ms Cecchi

SECOND RESPONDENTS:

Mr A Kalloway and

Ms B Kalloway

INDEPENDENT CHILDREN’S LAWYER: Robinson McGuinness

FILE NUMBER: CAC 326 of 2014

DATE DELIVERED: 22 May 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 19 December 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Ms Wynn as agent on behalf of Central West Legal Pty Ltd

SOLICITOR FOR THE SECOND RESPONDENTS: Self-representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Robinson

Orders

IT IS ORDERED, UNTIL FURTHER ORDER, THAT

1. C, born … 2011, (the child) shall live with her mother.

2. The child shall spend time with her father as follows:

   (a)On Saturday 27 May 2017 for a period of six hours as agreed between the parties and failing agreement from 10am until 4pm;

   (b)       On Saturday 3 June 2017 from 10am until 4pm;

   (c)       On Saturday 10 June 2017 from 10am until 4pm;

   (d)       On Sunday, 11 June 2017 from 10am until 4pm; and

   (e)Thereafter each alternate weekend from Saturday 10am until 4pm and Sunday 10am until 4pm.

3. For the purposes of Order 2 changeover is to occur at the F Town police station until such time as the time ordered coincides with the availability of the D Centre.

4. That the father be and hereby is restrained from spending any time with the child whilst he is under the influence of any illicit drugs and is restrained from consuming illicit drugs for 24 hours prior to any time with the child.

5. That the father be and hereby is restrained from spending any time with the child whilst he is under the influence of any alcohol and is restrained from consuming any alcohol for 24 hours prior to any time with the child.

6. This order is for the personal protection of Ms Cecchi. Pending further order of the Court Mr Kalloway is restrained by injunction from assaulting, molesting, harassing, threatening or otherwise interfering with Ms Cecchi.  If:

   (a)an injunction is in force under s 68B of the Family Law Act 1975 (Cth) for the personal protection of a person (the protected person); and

   (b)a police officer believes, on reasonable grounds, that the person (the respondent) against whom the injunction is directed has breached the injunction by:

   (i)causing, or threatening to cause, bodily harm to the protected person; or

   (ii)harassing, molesting or stalking that person;

   the police officer may arrest the respondent without warrant.

IT IS NOTED THAT

(7)Section 122AA of the Family Law Act 1975 (Cth) authorises the use of reasonable force in making an arrest.

(a)For the purposes of subsection (a), an injunction granted under s 68B is an injunction for the personal protection of a person if, and only if, it is expressed to be for the personal protection of the person.

(b)Subsections 114AA(3), (4), (5) and (7) of the Family Law Act 1975 (Cth) apply in relation to a person arrested under this section as if:

(i)the person had been arrested under s 114AA(1) because he or she was believed to have breached an injunction granted under s 114; and

(ii)the person on whose application the injunction was granted under s 68B were the person on whose application the injunction under s 114 had been granted.

IT IS FURTHER ORDERED THAT

1. Pursuant to s 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Family Consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and for that report to consider in particular:

   (a)The benefit to the child of having a meaningful relationship with both of the child’s parents;

   (b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence including an assessment of any such risk that the child may be exposed to and the impact both in the short term and long term in the event that the child is exposed to abuse, neglect or family violence;

   (c)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i)Either of the child’s parents; or

   (ii)Any other child or other person (including a grandparent or other relative of the child including a sibling or step-sibling) with whom the child has/have been living;

   including an assessment of the nature of the child’s present and prospective attachments in terms of the orders sought by each of the parties;

   (d)The capacity of:

   (i)Each of the child’s parents; and

   (ii)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 and any circumstances that may diminish that capacity by reason of physical disability, mental disability or risk of abuse;

   (e)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Family Consultant thinks are relevant;

   (f)If the child is an Aboriginal or Torres Strait Islander child:

   (i)The child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)The likely impact any proposed parenting order will have on that right:

   (g)The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents;

   (h)Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (i)Any other fact or circumstance that in the opinion of the Family Consultant is relevant.

2. The Family Consultant is granted leave to inspect all documents produced in these proceedings on subpoena.

3. The matter is adjourned to 9am on 16 August 2017 for further directions and the parties are granted leave to appear by telephone.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 326 of 2014

Mr Kalloway

Applicant

And

Ms Cecchi

Respondent

And

Mr A Kalloway and Ms B Kalloway
Second Respondents

REASONS FOR JUDGMENT

1. The interim proceedings in this matter involve a contest about whether the child, (almost 6 years old) who lives with her mother, will spend time with her father pending final hearing and, if so, under what circumstances that will happen.  She has not spent time with her father since about 24 March 2016 when, with the assistance of the Department of Community Services (DoCS), the mother relocated from E Town in New South Wales (NSW) to F Town in NSW with the child and the child’s two brothers.  The two brothers are not the subject of the dispute.  There is a further contest about the amount of time that the paternal grandparents might spend with the child pending a final hearing of the matter. 

Orders sought

1. The father indicated during proceedings on 19 December 2016 that he agreed with the interim orders proposed by the Independent Children’s Lawyer.

2. The Independent Children’s Lawyer proposed orders relating to the child’s living arrangements that:

   a)[The child] live with the mother; and

   b)[The child] spends time with the father:

   a)On Saturday 24 December 2016 for a period of four hours as agreed between the parties and failing agreement from 2:00pm until 6:00pm;

   b)On Saturday 31 December 2016 from 10:00am to 4:00pm;

   c)On Saturday 7 January 2017 from 10:00am until Sunday 8 January 2017 at 4:00pm; and

   d)Thereafter each alternative weekend from Saturday 10:00am until Sunday 4:00pm.

   c)That [the child] spend time with the paternal grandparents in accordance with Order 1 of the Orders made 18 November 2016.

   a)Order 1 of the Orders made 18 November 2016 states:

   (i)That the child [C] born … 2011 spend time with the paternal grandparents at all times as agreed between the paternal grandparents and the mother but failing agreement as follows:-

   1.The paternal grandparents shall spend time with [C] supervised by [D Centre], [F Town] at a frequency of not more than 2 hours per fortnight as can be accommodated by the service.

   2.To facilitate the supervised time with order (i)1. The parties are to contact the convenor of [C Centre], [F Town] by no later than 4:00pm on 25 November 2016 to obtain the earliest possible intake interviews and to thereafter provide all information, sign all documents, give all consents and pay all fees necessary to enable the implementation of these orders and shall comply with all appointments and visits scheduled by [C Centre].

   Changeover

   d)That for the purposes of Order b changeover is to occur at the [F Town] Police Station until such time as the fortnightly time provided in Order b(d) coincides with the availability at [C Centre], [F Town].

   School

   e)The mother is to identify a school in [F Town] and make all the necessary enquiries including obtaining enrolment forms to enrol the child into primary school and inform the father as to the nominated primary school.

   f)That the mother and father are to do all acts and sign all things necessary to enrol the child in primary school in [F Town].

   g)If the parties cannot reach agreement on the school to be attended by the child, the matter may be relisted at short notice.

3. The Independent Children’s Lawyer also sought orders for a psychiatric assessment of the mother.

4. The mother sought orders that:

   a)She have sole parental responsibility for the child, [C] born … 2011;

   b)[The child live] with the mother;

   c)Pending further Order of the Court the child shall spend no time and shall not communicate with the respondent father;

   d)In the event that the Court declines to make an order as referred to in Order (c) above, then the child shall spend time and communicate with the father as follows:-

   i)At such times and frequencies as the Court deems appropriate, supervised by [C Centre], [F Town], NSW, provided that at all times the time that the child spends with the father is supervised and subject to the father paying for and arranging payment of the costs thereof.

   ii)That the mother be responsible for the child to travel to and from such visits.

   iii)That the mother co-operate with the father in relation to the child spending time with the father in relation to these Orders and that she do all necessary acts and things to facilitate compliance with these orders including but not limited to making the child available for such visits to the father.

   iv)That the father be restrained from coming into contact with the child at any other time other than provided for in these Orders.

   e)Each party be restrained from making critical or derogatory remarks about the other party or members of the other party’s family in the presence of or in the hearing of [the child], and that each shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about either party or members of either party’s family, in the presence of or within the hearing of [the child].

   f)The father must, at his cost, attend and complete a parenting skills course (provided by one of Relationships Australia, Unifam or Centacare) and must:

   i.Within 7 days contact a course provider and enrol in the first available course;

   ii.Attend each session of the course;

   iii.At the conclusion of the course, obtain a letter from the course provider certifying sessions attended and completion of the course; and

   iv.Promptly provide the other with a copy of the letter.

   v.And is to otherwise use his best endeavours to learn appropriate methods of managing a child’s behaviour and to acquire parenting skills.

   g)The father must, at his cost, attend and complete an anger management course and must:

   i.Within 7 days contact a course provider and enrol in the first available course;

   ii.Attend each session of the course;

   iii.At the conclusion of the course, obtain a letter from the course provider certifying sessions attended and completion of the course; and

   iv.Promptly provide the mother with a copy of the letter.

   h)The father be hereby restrained from exposing [the child] to any of the following:

   i.Any form of family violence (including verbal and physical assaults)

   ii.Any form of sexual behaviour that the father may choose to participate in;

   iii.Any form of emotional abuse including derogatory taunts and name calling and depriving the child of food as a form of punishment;

   iv.Any form of cruelty to or killing of any animal;

   v.Any form of unsecured forearms;

   i)The father be and hereby is restrained from spending any time with the child whilst he is under the influence of any illicit drugs and is restrained from consuming illicit drugs for 24 hours prior to any time with [the child];

   j)The father be and hereby is restrained from spending any time with the child whilst he is under the influence of any alcohol and is restrained from consuming any alcohol for 24 hours prior to any time with [the child];

   State Welfare Report

   k)Pursuant to s 91B(1) of the Family Law Act consideration be given by the Proper Officer of the Department of Family and Community Services of New South Wales who is responsible for the administration of the laws of the state of New South Wales that relate to child welfare to intervene in these proceedings. 

   Injunctions – Personal Protection

   l)Pending further order of the Court the respondent father be restrained by injunction from assaulting, molesting, harassing, threatening or otherwise interfering with the Applicant [Ms Cecchi], the child [C] born … 2011, [G], date of birth … 2004, (being the step son of the Respondent) and [H], date of birth … 2002, (being the step son of the Respondent);

   m)The respondent must not engage in any other conduct that intimidates the applicant or the above named children;

   n)The respondent must not stalk the applicant and / or the named children;

   o)The respondent must not enter the premises at which the applicant may from time to time reside or work;

   p)The respondent must not approach, contact and / or telephone the applicant and / or the named children by any means whatsoever except through the Applicant’s legal representative or as agreed in writing or as permitted by an Order of this Court; and

   q)The respondent shall [sic] authorise any third party to engage in conduct which threatens, harass and / or intimidates the applicant and / or the children.

   Other

   r)Leave be granted to the parties to issue such subpoenas as they deem necessary and such leave shall extend to issuing more than five subpoenas.

   s)Any such order as the Court deems appropriate.

5. The paternal grandparents sought orders that:

   a)The child [C], born … 2011, spend time and communicate with the paternal grandparents as follows:

   i)By telephone or Skype each Sunday evening between 5:00pm and 6:00pm with the grandparents to call the mother during that time and the mother to facilitate the telephone call between the grandparents and [the child].

   ii)During school time as follows:

   (i)     For one weekend each term being a weekend in the middle of the term period at the grandparent’s home from 4:00pm Friday to 5:00pm Sunday.

   (ii)    On two further Saturdays being approximately midway dates on either side of the weekend in (i) above and the closest school holiday period, between 9:00am and 4:00pm in F Town.

   iii)For five days and five nights each school holiday period.

   iv)For two weeks during the Christmas School Holiday period.

   v)On the weekend after the child’s birthday from 4:00pm Friday to 5:00pm Sunday.

   vi)Such other times as agreed between the parties.

   b)Changeover at the commencement of the grandparents’ time take place at the mother’s home with the grandparents collecting the child from the mother’s home and changeover at the end of the grandparent’s time take place at McDonalds [I Town] with the mother collecting [the child] from there.

Materials relied on

1. The applicant father relied on:

   a)    Response to Initiating Application filed on 18 November 2016;

   b)   Affidavit of Mr Kalloway filed on 18 November 2016;

   c)   A responsive affidavit filed by Mr Kalloway on 18 November 2016; and

   d)   Notice of Risk filed by Mr Kalloway on 18 November 2016.

2. The respondent mother relied on:

   a)   Initiating Application sworn and filed on 7 October 2016;

   b)   Affidavit of Ms Cecchi sworn and filed on 7 October 2016;

   c)   Affidavit of Ms Cecchi filed on 17 November 2016;

   d)   Notice of Risk filed by Ms Cecchi on 7 October 2016; and

   e)   Documents produced as follows:

   i.10 documents from the New South Wales Police;

   ii.Two documents from the Southern New South Wales Health Service

   iii.Three documents from a Ms J; and

   iv.18 documents from the Department of Family and Community Services.

3. The second respondent grandparents relied on:

   a)   Initiating Application filed in the F Town Local Court on 12 October 2016;

   b)   Affidavit of Ms B Kalloway filed 12 October 2016; and

   c)   Affidavit of Ms B Kalloway filed on 7 December 2016.

4. The Independent Children’s Lawyer relied on:

   a)   Documents A1-A51, produced by the New South Wales Department of Family and Community Services; and

   b)   Documents B52-B64, produced by the New South Wales Police.

The mother’s case

1. At this stage of the proceedings the mother identified the case as involving the question of the risk that the father poses to the child in respect of family violence as against the benefit that the child might receive from a meaningful relationship with him.  This is a reasonable characterisation of the issues.  In particular the mother asserts that there is a risk of violence if the child is exposed to the father, being a risk that is accentuated by drug abuse on his part and by mental health problems that he faces.

2. The mother’s affidavit material contained a large number of assertions in relation to the father, both as to his conduct as observed by the mother and otherwise.  A large number of these were both untested and untestable in the context of interim proceedings.  A large number of them were expressed in a generalised form and, where they did not involve the mother having direct knowledge of what had occurred, frequently failed to disclose how it was that the mother was able to make the assertions about the father that she did.  Despite this general criticism of the mother’s affidavit material, a number of matters were specifically identified on her behalf as being shown through the material produced on subpoena.  In particular, I was taken to the following matters:

   a)    Exhibit M28 – this was a DoCS record from 22 February 2016.  It involved a report by the paternal grandmother, with the paternal grandfather present where it was asserted that the father “is a drug user and probably will always be”.  It was asserted that the last time that the paternal grandmother had seen the father had involved him being “up in my face with a fist”.  The paternal grandmother further asserted “he will never get help”. 

   b)   Exhibit M25 being records produced by DoCS from 26 February 2016.  In these records the case worker described the home in which the father, mother and children were living as being a “highly disrupted home environment”.  It was unclear what information was relied upon to form this conclusion.  However, either of the parties’ descriptions as set out in their affidavit material would lead to the conclusion that the children have had a highly disrupted home environment, with changes occurring for their care arrangements as they moved between their various parents, both with the parents being apart and being together.  This entry also asserted that the father had undergone two mental health assessments.  These were more particularly recorded in ICL1 at p A50 as being mental health assessments occurring in 2001 and 2007 wherein “two different practitioners identified significant alcohol and marijuana use, linking this usage to paranoia, depression and suicide attempts”.

   c)   Exhibit M25 also included reference to mental health issues for the mother.  It was there recorded that the mother had been assessed at fourteen as suffering from major depression and oppositional defiant disorder and that “as an adult a mental health assessment found she demonstrated symptoms of personality disorder, as well as depression”.  This appeared to correspond to the mother’s involvement with the K Institute. 

   d)   Exhibit M24 contains further records from DoCS relating to an incident occurring on 24 March 2016.  This was the day where the mother left the former home shared by the parties with the assistance of DoCS, which relocated her into supported accommodation.  The father attended at the time of the removal of the mother.  There an argument ensued and the police were called in order to keep the peace.  Following leaving the property the case note records that the father followed the case worker and mother and children in his motor vehicle as they travelled towards the new accommodation. 

   e)   Exhibit M23 is a further record produced by DoCS for 15 April 2016.  There the paternal grandmother describes the father as being an alcoholic, drug addict, as suffering from mental health problems, as angry and despicable.  It appears that the father and paternal grandmother have had a volatile relationship.  By the time of the hearing of this matter in December 2016 they claimed that there had been a reconciliation in the relationship. 

1. Much of the other material relied upon by the mother, and produced on subpoena, was unclear as to what the underlying source of the material was.  That is, there was significant criticism made of the father but it was unclear whether those criticisms were simply from the mother.  Similarly, there were significant criticisms of the mother but in large part it was difficult to delineate whether the root of those claims was the father.  While it is certainly not the case that the claims made by each of the former partners should be disregarded by virtue of their being involved in conflict, at an interim stage of the proceedings there is a need to avoid, where possible, the controversial aspects of the evidence.  Third-party sources may provide the degree of independence necessary to make some assessment of risks that may be posed,[1] where the controversial nature of the disagreement between the parties leaves little room for preferring one or the other.  I acknowledge, however, that an inability to prefer one or the other party’s evidence does not remove the need to assess risk in a case such as this.

   [1]Deiter & Deiter [2011] FamCAFC 82.

2. In submissions the key issues identified for the mother were the reported drug abuse as identified by the paternal grandmother, the following of the mother and the case worker in March 2016, a significant mental health history and history of drug use.  The display of anger in the presence of the case workers and police at March 2016 was said to indicate a lack of self-control such as to render even supervised time unsuitable.  Finally, it was said that the material indicated that although the mother had mental health issues she was at present dealing with them while the father was not dealing with his mental health issues.

3. The extension of time sought by the grandparents was opposed by the mother.

The case for the Independent Children’s Lawyer

1. The Independent Children’s Lawyer focused upon a number of the issues that had been raised on behalf of the mother.  Dealing firstly with the father’s mental health the Independent Children’s Lawyer asserted that he was unable to find evidence beyond mere assertions as to the father’s mental health problems.  From an examination of the material it appears that the clearest indication is that quoted from ICL1 (p A50) that indicates, from sources unknown, that in 2001 and in 2007 the father was assessed as having mental health issues that appeared to be related to drug use.  It is unclear where this information has come from.  Assuming its accuracy, it ought to however be noted that the references are dated and restricted to periods before the child was born.  The Independent Children’s Lawyer submitted that there was nothing to indicate that it was necessary to assess the father prior to being able to engage in unsupervised time.  This, it seems, reflects the fact that there is no currency and no specificity as to mental health related issues for the father. 

2. Although not dealt with specifically by the Independent Children’s Lawyer, there is greater currency and specificity in relation to drug use by the father.  Aside from the general assertions made by the paternal grandmother some admissions have been made by him to indicate usage in January 2016 of cannabis.  His criminal record includes a reference to possession of drugs and it appears that the material produced on subpoena has also indicated prior use of drugs (for example at p A50 of ICL1).  Added to that, there is the assertion that the father has refused to engage in random urinalysis as requested by DoCS.  He complied with their first request, returning a clear urine but has since declined to provide urines.  However, other than the assertion that he has failed to engage in random urinalysis, no evidence is presented as to the circumstances or nature of the requests, nor of the nature of the refusals nor the circumstances that surrounded the refusals.  This absence of evidence makes it difficult to safely draw negative inferences from the failure to participate in urinalysis.  That is, the failure to participate can, in some circumstances, add to a picture of risk in respect of drug use.  Here, the lack of material as to those circumstances would make it dangerous to draw such inferences. 

3. The Independent Children’s Lawyer also focused upon the circumstances surrounding the mother’s removal from E Town with the assistance of DoCS.  Those circumstances included evidence that the father followed the case worker and the mother and the children.  Those circumstances raise some significant questions about the father.  Following, where there is a removal with the assistance of DoCS and the police, is potentially intimidating and could be indicative of coercive and controlling behaviour.

4. The key submission made by the Independent Children’s Lawyer was that the subpoenaed material did not depict a direct risk to the child at the hands of the father. 

5. A reasonable assessment of the subpoenaed material indicates that it raises significant issues as to the father presenting a risk to the mother of violence and accordingly, if the child is in the presence of the parents when they are together, a risk of the child being exposed to family violence, if the descriptions set out in the subpoenaed material are accepted.  Whether there is a bright line division between a risk of family violence to a former partner and risk to a child is not, however, clear. 

6. The Independent Children’s Lawyer noted that the material, particularly at ICL1 p A45 and following, indicated that there were issues for each of the parents in terms of their capacity to care for the children.  As to the distinction drawn by DoCS that the mother is dealing with her mental health issues, while the father is not, the Independent Children’s Lawyer observed that there is no detail provided as to what supports are in place for the mother, nor what her current treatment is, nor her current diagnosis.  That is, while there is an assertion that the mother is dealing with her mental health issues there is little base material from which that assertion can be substantiated.  

7. In conclusion, the Independent Children’s Lawyer submitted that on the question of the father posing a risk to the child, there was insufficient evidence of such a risk as to justify either an order for no time with the child or even an order for supervision.  There was, however, acceptance by the Independent Children’s Lawyer that there is a need to limit contact between the parents.  It must also be accepted that, if it is the case that the father poses a risk to the mother, that the child should not be brought into a circumstance where she is exposed to the mother and father in contact with each other.

8. On the question of the grandparent’s application, the Independent Children’s Lawyer noted that the time that had previously been ordered for the grandparents in September 2016 had not occurred at the time of the hearing.  The Independent Children’s Lawyer’s position was that the current orders from September 2016 should continue until the matter returned to Court. 

Case for the grandparents

1. The grandparents relied in particular on Exhibits 12 and 25 that indicated that the mother had attended upon Professor L.  This attendance revealed an assessment of both depression and traits of personality disorder.  They relied upon the letter from H (the child’s brother) annexed to the father’s affidavit material, that they say undermines the assertions made by the mother about the father.  They expressed concern for the child’s education as they said that her brothers’ education was suffering leading to a concern on their part that the child’s would also suffer.  They raised the issue of their previous estrangement from their son, laying part of the blame for that as relationship difficulties with the mother. 

2. These matters did not advance their claim for an extension of the time that they were to spend with the child.  At present the evidence is too scarce to allow a conclusion to be reached that the child’s best interests would be served by an increase in the time that she is scheduled to spend with her grandparents.

The case for the father

1. The father added little to the matters that had previously been addressed.  He asserted that difficulties arose when the mother was around.  This reflects the material contained on subpoena whereby each of the parents place significant blame at the feet of the other parent in relation to the interactions that they have with each other.  The father also indicated that he did not wish to jump through hoops in order to see his daughter. 

Discussion

1. I accept the proposition put for the mother that the key contest is the risk in relation to family violence as against the benefits of a meaningful relationship with the father, at least at this stage of the proceedings. There is limited evidence which would enable an assessment as to the balance of the s 60CC factors other than as they form a part of the consideration of the two primary considerations. There is limited evidence as to the nature of the relationships between the parents and the child, and there is limited evidence as to her personal characteristics. Each of the parents has had substantial periods of time caring for the child in a primary sense. The mother entrusted the child to the father’s care when she was about one year old, she says for a period of one month, which became eighteen months. She asserts that the father betrayed the trust by not returning the child to her at the end of the month period. However, there is limited evidence from which their capacity to care for the child can be inferred. The evidence in the proceedings was geared primarily towards the consideration of risk flowing from exposure to family violence.

2. In this case the presumption of equal shared parental responsibility is rendered inapplicable by the extensive evidence, including evidence produced on subpoena, as to family violence.  This evidence is primarily directed to the proposition that the father has been violent to the mother.  Although unable at this stage to assess whether or not such family violence has in fact occurred, it provides reasonable grounds to believe that the father has engaged in family violence.  The identification of reasonable grounds does not equate to the finding that the family violence has occurred.  Rather, the identification that there are reasonable grounds to believe that such has occurred caters for circumstances where such findings are unable to be found but are reasonably open on the evidence. 

3. On the history of the parties as presented by each of the parties it is inappropriate that the obligations of equal shared parental responsibility be placed upon each of them in terms of long-term decision making for the child. 

4. There is sufficient material to raise the question of a risk on the part of the father of engaging in family violence directed towards the mother.  At present, given the interim nature of the proceedings, the history of family violence is unable to be resolved.  Much is reliant upon the assertions and counter-assertions of each of the parties.  Much of the subpoenaed material reflects comments made by the parties.  The credibility of the parties in making those previous assertions may be a matter that will be resolved at a final hearing.  While the history of family violence cannot be resolved, there is a live issue of risk.  That risk to the mother is given credence by the incident involving the father following the case worker, mother and children. 

5. However, I accept the analysis of the Independent Children’s Lawyer that an examination of the material does not present the same picture of risk as between the father and the child.  This notion of course is predicated upon the notion that the mother and father would be unable to come into contact with each other.  Their contact with each other would carry with it a risk of family violence that, if the child was also present, would carry with it a risk of her exposure to family violence and the negative consequences that flow from that.

6. While the primary risk of family violence relates to the mother, this does not equate to an absence of any risks in relation to the child.

7. There is evidence showing the use of cannabis in January 2016, the assertions by the grandmother that indicate, in 2016, ongoing issues with drugs for the father, and evidence indicating prior serious issues with mental health for the father connected to drug use.

8. While there is little, if any, material to show that drug abuse is current, the evidence is sufficient to indicate some risks connected to drug use and mental health. 

9. The risks presented to the child are ameliorated by limiting the contact between the father and the mother.  They are further ameliorated by, in the circumstances where the father has spent no time with the child since March 2016, providing for an initial regime where the father spends day-time periods with the child only.  It is important for the child to spend time with her father.  He has been an important part of her life, being her primary carer for a significant period of time.  It is important that she have the opportunity to derive the benefits of spending time with him and enjoying a meaningful relationship with him. 

10. At present, and pending further assessment of the matter, this can best be catered for by providing for the child to spend day time periods with her father in F Town.  Given my assessment that the key risk issue relating to the parents is being in contact with each other, as long as this risk factor is adequately catered for in the orders, there is no need for supervision at this stage.

11. The risks are further reduced by restraining the father by injunction from the consumption of alcohol and illicit drugs proximate to spending time with the child.  The balance of the requirement sought by the mother, such as restraints in relation to cruelty to animals, are not demonstrated as necessary.  The requirement to attend courses is not supported by material sufficient to show the benefits, or necessity, of such.

12. There is a serious issue to be tried regarding the father as a risk of violence to the mother.  There is no inconvenience in the father being restrained from harming the mother.  It is reasonably necessary for an injunction for her personal protection to be made.  It has not been demonstrated to be necessary to extend such to the children. 

13. While the Independent Children’s Lawyer sought orders for the psychiatric assessment of the mother, any such orders should be dealt with as part of a suite of orders to prepare the matter for trial.  Such orders should deal with both parties.  I reserve the question of assessment to the making of trial directions. 

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 22 May 2017.

Associate: 

Date:  22 May 2017