Kalmus & Hocking
[2021] FedCFamC2F 348
•11 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kalmus & Hocking [2021] FedCFamC2F 348
File number(s): HBC 1071 of 2020 Judgment of: JUDGE TAGLIERI Date of judgment: 11 November 2021 Catchwords: FAMILY LAW – parental responsibility – where the mother sought sole parental responsibility and the father sought equal shared parental responsibility – concluded that father’s repeat derogatory remarks amount to family violence – concluded that the presumption of equal shared parental responsibility does not apply – ordered that mother have sole parental responsibility on condition that she consult with the father
FAMILY LAW – parenting – supervision of child’s time with father – where mother seeks indefinite supervision – where father seeks progression to unsupervised time – ordered that child’s time with father gradually progress to unsupervised and greater time
Legislation: Family Law Act 1975 (Cth), ss 4AB, 60B(1), 60CA, 60CC(2), 60CC(3), 61DA, 60DAA, 60DAC Cases cited: Aldridge &Keaton (2009) FLC 93-421
Deiter & Deiter [2011] FamCAFC 82
Goode & Goode (1994) FLC92-506
Grant & Grant (1994) FLC 92-506
Marvel & Marvel [2010] FamCAFC 101
Moose & Moose [2008] FamCAFC 108
Re Andrew [1996] FamCA 43
Sedgeley & Sedgley [1995] FamCA 154
Slater & Light [2011] FamCAFC 1
Walden & Cooper [2018] FamCA 595
Division: Division 2 Family Law Number of paragraphs: 91 Date of hearing: 11 and 12 October 2021 Place: Hobart Counsel for the Applicant: Mr M Trezise Counsel for the Respondent: Mr M Foster Solicitor for the Respondent: Murdoch Clarke ORDERS
HBC 1071 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: MR KALMUS
Applicant
AND: MS HOCKING
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
11 NOVEMBER 2021
THE COURT ORDERS THAT:
(1)All previous orders concerning X born in 2016 (“the child”), are discharged.
(2)Ms Hocking(“the mother”) have sole parental responsibility for the child subject to Order 3 hereof.
(3)Notwithstanding order (2), the mother shall consult with Mr Kalmus (“the father”) in relation to decisions concerning the child’s long-term care, welfare and development and seek to reach agreement with him. Should the mother and father fail to agree and subject to any subsequent court order, the mother’s decision in relation to such issue/s will apply, and the filing of a subsequent application by the father seeking judicial determination of the issue/s shall not prevent the mother from in the first instance making a decision pursuant to this order.
(1)Commencing 17 November 2021 and until the end of April 2022 the child live with the mother, and spend time with the father as follows:
In week 1, between 3.00pm and 6.00pm Wednesdays; and
In week 2, from 10.00am Friday until 4.00pm Friday.
(2)From May 2022 until the end of August 2022 the child live with the mother, and spend time with the father as follows:
In week 1 and every alternative week thereafter, from 3.00pm Wednesday to 9.00am Thursday or the commencement of school or any pre-kinder program in which the child is enrolled; and
In week 2 and every alternate week thereafter, from 3.00pm Friday to 5.00pm Saturday; and
(3)Commencing September 2022 the child live with the mother, and spend time with the father as follows:
In week 1 and every alternate week, between 3.00pm and 6.00pm Wednesdays; and
In week 2 and every alternate week, from 10.00am Friday to 4:00pm Sunday.
(4)That commencing February 2023, the child live with the mother and otherwise spend time with and live with the father as follows:
In week 1 and every alternate week thereafter, from 3.00pm Thursday to the commencement of school on Monday; and
In week 2 and every alternate week thereafter, from 300pm Wednesday to the commencement of school on Friday.
(5)Changeover is to occur at the conclusion and start of school and at the child’s school whenever it occurs on a school day and otherwise will occur outside the police station at Town B or Town C and is to be agreed between the parties in writing.
(6)That the child spend time with each parent on special occasions as agreed between the parties, and failing agreement as follows:
Mother’s Day: if the child is not otherwise in the mother’s care, with the mother from 5.00pm the night before Mother’s Day to 3.00pm Mother’s Day;
Father’s Day: if the child is not otherwise in the father’s care, with the father from 5.00pm the night before Father’s Day to 3.00pm on Father’s Day;
In odd numbered years for Christmas, with the mother from 3.00pm Christmas Eve to 3.00pm Christmas Day and with the father from 3.00pm Christmas Day to 3.00pm Boxing Day NOTING THAT in 2021 changeover will be at the Location D, E Street, Town F.
In even numbered years for Christmas, with the father from 3.00pm Christmas Eve to 3.00pm Christmas Day and with the mother from 3.00pm Christmas Day to 3.00pm Boxing Day.
The child’s birthday: with the parent who does not otherwise have care of him that day from 3.00pm until 5.00pm;
Easter: with the father from the conclusion of school on Thursday until 5.00pm on Easter Saturday and with the mother from 5.00pm on Easter Saturday until 5.00pm Tuesday.
(7)That whilst the child is in the father’s care, the child is not to be in the presence of any person who is affected by alcohol such that they are over a blood alcohol concentration (BAC) level of 0.05 grams of alcohol per 100ml of blood or under the influence of illicit drugs.
(8)That neither parent denigrate or speak negatively about the other, their extended family or their partner within the child’s hearing, or allow the child to be or remain in the presence of any third party who is doing so.
(9)The parent with whom the child is not living with can communicate with the child at times to be agreed or in default of agreement on Thursday evenings between 4.00pm and 6.30pm, and the communication is to be initiated by the parent who is not with the child calling the mobile telephone of the other parent, or such other device or means as the parents may agree from time to time in writing.
(10)The mother and father must keep the other informed of their preferred mobile and email contact information and residential address.
(11)The mother and father will do all things necessary to ensure both are each named on the child’s:
school or extra-curricular enrolments and a direction is provided to the children’s school that both parents are primary contacts for the child and that each parent is to receive school notifications, including in the event a child is unwell; and
medical, health and allied health service contact and/or consent authority.
(12)The mother and father are each entitled to both attend any and all school events and extra-curricular activities and sporting events involving the child, that parents normally attend including but not limited to:
(a) Parent teacher interviews;
(b) School sporting events; and
(c) Non-school extra-curricular events.
(13)The mother and father are to each inform the other as soon as practicable of any hospitalisation, significant injury or health problem suffered by the Child and details of any treatment received or medication prescribed by the Child whilst under their respective care.
(14)The mother and father are to communicate with each other by using a communication app agreed by them and in default of agreement the Our Family Wizard app; and the cost of such app is to be shared equally by the parties with the father paying the initial annual subscription and the mother the next annual subscription and alternatively paying the annual subscription renewal thereafter.
(15)Within 6 weeks of the date of these order the father is to enrol in, and then complete the MENS program through Relationships Australia or a similar course and must provide a copy of the enrolment confirmation and evidence of completion of the course to the mother by email.
(16)Within 6 weeks of the date of these orders, the mother and father are to enrol in the Parenting Separately Course through Relationships Australia and must provide a copy of confirmation of their enrolments and evidence of completion of the course to the other party by email.
(17)The increase and progression of the father’s time with the child in accordance with orders 4 and 5 of these Orders is suspended if and until the father complies with the requirements of orders 18 and 19 of these Orders.
(18)The increase and progression of the father’s time with the child in accordance with paragraphs 3, 4 and 5 of these orders is suspended if the father is charged with a breathalyser offence or offence for driving while disqualified or unlicensed.
(19)These Orders act as an authority for the parents to request and obtain any educational or medical information, record or file relating to the child that each are lawfully entitled to obtain. Each may provide a copy of the orders to the child’s school and treating medical practitioner.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Kalmus & Hocking has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
INTRODUCTION
These proceedings relate to the child X born in 2016 (“the child”). The parties are the parents of the child who has lived in the primary care of the mother, Ms Hocking (“the mother”) since his birth. The father Mr Kalmus (“the father”) has spent time with the child somewhat sporadically since his birth due to various reasons that will be apparent from the reasons that follow.
The application by the father seeks parenting orders to ensure that he has a meaningful role in the child’s life and spends regular time with the child. The main issue in contention is whether the father should have unsupervised time with the child and if so, how frequently and for how long. The mother contends that the father should spend time with the child, but supervised indefinitely.
THE OPPOSING CASES AND EVIDENCE BEFORE THE COURT
The Father’s Case
The affidavits of the father of 6 July 2021 and 8 September 2021 were read in evidence unopposed. He was cross-examined at length and in detail as to his history of criminal offending and the assertions made about family violence in the mother’s affidavit material.
The father admitted the convictions, but did not accept the details stated by the prosecution relating to various criminal offences in all instances.
Under cross-examination, the father also admitted many abusive, threatening and demeaning statements to and about the mother, her husband and family. He expressed regret for what he had said.
The father made many concessions under cross-examination contrary to his interest. He also made statements suggesting that he had gained insight into past shortcomings. He commented at times that he had been “young and silly” and “that it had been a bad period in his life”.
He also expressed remorse and regret for how he had spoken to and about the mother, her family and her new partner.
The father was asked about an incident referred to in the G report of 5 February 2021. It was put to the father that he had failed to comply with instructions of the supervisor when spending time with the child who was riding a bike. The father disagreed with the reporting of the incident. He said it had been a windy day and he was running alongside his son who was riding a bike and had not heard the instruction. He stated it was a simple misunderstanding.
The father called Ms H, his current partner. Her evidence was relatively brief and addressed the period since late last year when she formed a relationship of significance with the father. Her affidavit affirmed 30 June 2021, was read into evidence and she was cross-examined, the direction of which was to credit.
In summary, Ms H’s evidence was that she had experienced the father to be a supportive partner, capable of assisting her in a safe and appropriate manner with the care of her own children. She also stated that, if necessary, she would be prepared to assist the father when he spends time with the child and facilitating changeovers.
It was put to Ms H that she had misled the Court about the length of the relationship with the father and that she was capable of untruths, given evidence that she had not disclosed to Centrelink that she was living with the father. It was also suggested that she was not a responsible person based on a photo taken earlier this year of her sitting on a roof drinking alcohol.[1]
[1] Exhibit M2.
Ms H admitted it was not safe to drink alcohol while on the roof and stated her children were not present at the time. She also frankly conceded that she had not permanently moved in to live at the father’s residence until June/July 2021. Ms H was straightforward in her evidence and she presented as truthful. I do not believe that she set out to mislead the Court.
The Mother’s Case
There was detailed evidence before the Court regarding the mother’s concerns about the father's capacity to care for the child. In summary, the evidence was as follows:
(a)The father will put the child at risk of physical harm by driving when influenced by alcohol or not licensed to drive;
(b)The father does not ensure the child is toileted appropriately and is a poor role model, urinating in public;
(c)The father is physically violent and associates with people who have assaulted him and he fears will again assault him, putting the child at risk of harm;
(d)The father’s residence is not safe; and
(e)The father makes inappropriate statements and remarks to the child, which will confuse the child and inappropriately influence him against the mother. For example, stating that the mother stops the father from spending more time with the child, this being damaging to the child’s relationship with his mother.
There was common and uncontroversial evidence that the father had been having regular supervised time through the G Children’s Homes for about 12 months. The reports of the supervised time are before the Court.[2] The mother agreed under cross-examination that they were largely positive reports; indicating the father and child had a meaningful and loving relationship, and mostly appropriate conduct and communication by the father. However, the mother emphasised in her evidence a number of times that the child had been settled and thriving, because of the supervised time, implying it would be otherwise if time was unsupervised.
[2] Affidavit of the mother filed 26 June 2021 at Annexure G; and Affidavit of the father filed 6 July 2021 at Annexure A.
Under cross-examination the mother was not willing to acknowledge the possibility that the father's past criminal history and statements and behaviours would not continue in the future. She categorically rejected the proposition that the father may be able to maintain his positive approach and improved attitude to responsible parenting in an unsupervised setting.
I raised with the mother the possibility that rewarding good behaviour on the father’s part may further promote positive behaviours and avoid or minimise future denigration, abuse and threats. The mother had an intractable view and did not acknowledge the possibility.
In giving her evidence, the mother commonly responded to questions from her own personal perspective and was unable to offer under cross-examination any suggestion about how she may improve relations between her and the father.
The mother’s husband Mr J gave evidence. He also presented in a straightforward and honest manner. He was prepared to take the father’s apology and regret for past hurtful statements at face value and move forward. This was in contrast to the mother’s fixed attitude.
Three other affidavits were read into evidence unopposed, being the:
·Affidavit of Ms K sworn 21 June 2021. This witness is the maternal grandmother;
·Affidavit of Ms L (the mother’s adult daughter) sworn 22 June 2021; and
·Affidavit of Ms M sworn 12 July 2021. Ms M was a former partner of the father, who was the subject of family violence referred to in the father’s criminal history.
The evidence referred to in [19] is relatively brief and corroboratory of the harmful effects of the father’s past statements and behaviours on the mother and her family generally. In terms of specific evidence rather than generalisations, they address particular incidents around separation in 2015 when it is said the father broke through the door of the mother’s home and a changeover in the park on or about 15 May 2020.
Regarding the incident in 2015, the evidence of the mother was that when the father arrived at her property, he was inebriated and “could barely walk”, and that he broke into the house through a back door held shut with a knife. Her evidence was that she was fearful after this incident, and that her eldest child is still scared.
In cross-examination, the father denied that the mother and children were scared at the time of the incident in 2015. He said there was a practice of forcing the door open as it was held shut with a knife wedged in to the wall panelling. His evidence was that the mother had requested that he go to her house. When he arrived she did not answer when he knocked or when he telephoned her, and so he let himself in.
As to the incident in the park in May 2020, at changeover, the father’s evidence was that the mother’s children in the car had ignored his enquiry about the whereabouts of the mother and child. He seemed to concede that he was probably annoyed and abusive, but denied that the mother was frightened. He offered that his behaviour was poor and acceptable, indicative that he had reflected and gained insight.
CLOSING CONTENTIONS
For the Mother
In closing submissions, Counsel for the mother, submitted that the father's record of prior convictions demonstrates a long history of defiance of the law and a pattern of violence and denigration of women. I offered the observation that the record of prior convictions suggested that alcohol abuse was the common contributing or triggering factor to the offending. This was not conceded.
Counsel made very forceful submissions that the father was persistently lawless, violent and non-compliant, and that “at 47 years of age, the father has no capacity to change and he is what he is”. This, he submitted, establishes on the balance of probabilities that the father has no capacity to alter his manner and behaviours towards the mother and her family. Further, this means that the father will continue to cause the mother and her family emotional harm and/or put the child at risk.
When I commented that there may be some evidence of capacity to change, Counsel submitted that the father’s criminal history showed that there had not been much or lasting change in the father. He contended the Court has only two levers for minimising the negative impact of the father's behaviour on the mother and her family and in turn the child. Those levers are:
(a)How much time the father should spend with the child; and
(b)Whether time should be supervised.
Counsel submitted that the Court could not to be satisfied about the father's capacity to desist from the abusive and threatening behaviours based on the father’s supervised time during the last 12 months and the limited positive experiences with the child. It was submitted that despite supervised time, the father had continued to behave in a manner that was destructive of any trust and a workable co-parenting relationship by denigrating the mother, her husband and the mother's family.
There was also reliance on the authority of Re Andrew [1996] FamCA 43, it being contended that the father’s conduct had impacted on the mother’s mental health and capacity to care for the children. The evidentiary basis for this reliance is in part set out in the mother’s affidavit filed 25 June 2021.[3]
[3] Affidavit of the mother filed 25 June 2021 at [33] to [37].
Counsel stated that although the father had made many concessions about his conduct, what was missing was honesty and candour as was exampled by the incredulous evidence from the father about the source of the cash payment of $12,000 to the mother and the reason why the person named Mr N had assaulted him.
All of the extensive submissions for the mother were made with a view towards persuading me that only one thing had worked in terms of a positive relationship between the father and the child; that one thing being supervised time, which should continue. Despite this, it was acknowledged that supervision “could not be forever”.
I enquired as to the length of time there should be supervision. No particular period was identified, instead it was stated that as the child got older he would be able to self-protect.
For the Father
Counsel for the father emphasised that the mother's closing submissions heavily focused on the father’s past crimes and his verbal abuse/threats and how they impacted the mother. Further, that her case did not address the fundamental issue for the Court, namely the best interests of the child. He submitted that there was a more positive slant to be taken from the evidence, being that the parties did have capacity to develop trust between themselves and that being the case, that the presumption of equal shared parental responsibility had not been rebutted.
The father’s Counsel submitted that although the considerations in section 60CC(3) of the Family Law Act 1975 (Cth) (“the Act”) were relevant, ultimately the case fell to be determined on the provisions of section 60CC(2)(a) and 2(b). There was brief oral elucidation given to the submissions contained in paragraphs 1 to 16 of the father’s Case Outline dated 8 October 2021, which I do not repeat.
It was contended that indefinite supervised time between the father and child would bring an end to or curtail the meaningful relationship existing between father and child. This meaningful relationship, was said to be well documented in the contents of the two G reports in evidence, much of which was also admitted by the mother in cross-examination.
I was referred to Moose & Moose [2008] FamCAFC 108, at paragraph 119, which I set out below:
119.The undesirability of, and the practical difficulties associated with long term supervision in a children’s contact centre are referred to in the Guideline for Family Law Courts and Children’s Contact Services January 2007, Part C 4.1.1 and 4.1.2 (published by the Attorney-General’s Department, the Family Court of Australia and the Federal Magistrates Court of Australia). In Fitzpatrick & Fitzpatrick [2005] FamCA 394; (2005) FLC 93-227, May J, having found that the evidence in the case “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...”, then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then explained “[w]hilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored”. (See also W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892; (2005) FLC 93-235, (2005) 34 Fam LR 129 at paragraph 114).
In concluding that the appeal ought be allowed, the Full Court of the Family Court said at [120]:
120.His Honour’s reasons omit consideration of the family consultant’s oral evidence, the recommendations of the ICL, or discussion of the practical long term effects on the children of an indefinite order for supervised contact in a children’s contact centre, nor do the orders reflect his Honour’s findings that the children should spend more and more time with the father as “they get older”. Thus, I am satisfied this complaint has merit.
The father’s conduct was said to be low level compared to other cases that typically came before this Court. However, when queried by me about this, he quite properly conceded that they did establish some distress to the mother, which impacted on the co-parenting relationship. He added that there was no consequent harm to the child, at least not which is demonstrated on the evidence before the Court.
In addressing the Re Andrew submission by the mother’s Counsel, Counsel for the father contended that the bar was a very high one and that the evidence in this case did not show the required impact on the mother's parenting capacity. Instead, there were self-serving, subjective statements from the mother that did not rise to the required standard of proof.
Counsel emphasised that it was the child's wish to spend more time with his father; that the past trajectory of the case had been unsupervised overnight time with consideration to this extending to two nights, until the mother unilaterally ceased the father's time with the child in October 2020. He referred to the mother’s evidence during cross-examination, when she agreed she stopped facilitating time when informed that the father was driving with the child while he was unlicensed.
The inference in the submission referred to at [39] was that cessation of time was unreasonable. I suggested that it was legitimate to have some concern, as there was a risk of physical harm should there be an accident, and not having MAIB cover. This was conceded.
I made enquiry as to what preventative and protective measures may be appropriate should the Court be satisfied that the father spend unsupervised time with the child. The following submissions were made as being appropriate:
(a)That the father not drink 12 hours prior to his time with the child or while the child is in his care;
(b)That the father be breathalysed prior to the commencement of any time with the child.
(c)That changeover be at a police station where the parties, particularly the father, can be monitored regarding their conduct;
(d)That the father undergo random CDT testing for alcohol and drug use; and
(e)That the father's new partner may facilitate changeover rather than the father interacting with the mother to alleviate the mother’s fears/stress.
Discussion occurred about a prior suggestion that changeover occur at a police. The mother stated that Town B or Town C Police Stations, which had been considered, were not permanently open with personnel present, but that the area was under CCTV surveillance, so afforded some protection.
In submissions in reply, Counsel for the mother re-engaged with my suggestion that alcohol abuse appeared to be a common denominator in the father's criminal offending. He submitted that the case was not all about alcohol and that it was about to the father's incapacity to comply with reasonable and necessary protections. Mr Foster emphasised the passages from the G report of 5 February 2021.[4] He referred to the reported attitude of the father and statements towards the supervisors in the Family Connections Program Report:
On 5 February 2021 during a visit [the father] refused to take guidance or prompts from the worker to assist her in the ending the visit on time. [The father] ignored repeated prompts from both the worker and his partner Ms H (surname unknown). It is concerning that [the father] does not seems to be able to follow simple instructions as agreed in our Code of Conduct in terms of being safe and respectful to G staff.
…
[The father] has made statements in relation to the [the mother] that are blaming, hypercritical and negative in his conversation with staff. These comments are characterized by tone, pitch and pauses, in the way he delivers his negative thoughts and opinions about [the mother] and her parenting.
Observations made to two G staff have suggested that they believe [the father] would likely make negative comments to [the child], about his mother, if they were not supervised by a third party.
…
…[The father] is consistently disparaging in his commentary and opinions of [the mother’s] motives and parenting style.
[4] Affidavit of the mother filed 25 June 2021 at Annexure G.
EVALUATION AND FINDINGS
The evidence contained in the father’s criminal record and his concessions under cross examination establish the following:
(a)The father’s offending began when he was 17 years old and he was convicted of being under-aged in a bar in 1991;
(b)By age 25 years, he had approximately 11 court appearances and 16 convictions. Of these convictions 3 related to abuse of alcohol, 3 to violence, 1 for driving unlicensed and two for dishonesty;
(c)Between 25 and 30 years of age, there were no convictions;
(d)Between 30 and 40 years of age there are about 19 court appearances and over 35 convictions (not including re-sentences for breach of conditions of probation). Approximately five of these convictions related to driving while over the prescribed alcohol limit and six relating to drive while disqualified or without a license. Three related to breach of family violence orders. In addition, there were convictions for non-compliance with various statutory requirements of car use and assaults;
(e)From age 40 to 45 years, there are convictions for two high reading breathalyser offences and drive while disqualified. The father was also re-sentenced in this period for breach of conditions of probation relation to prior breach of family violence convictions;
(f)There is no evidence of further offending after March 2019.
As a result of the breathalyser-related convictions referred to at [44(e)] above, the father served imprisonment for 2 months in 2017 and 4 months in March 2019. He also received suspended sentences and home detention.
The last assault referred to in the criminal record relates to an incident in 2014. The re-sentences for breach of family violence in 2017 relate to breach of conditions of good behaviour connected to the earlier sentences handed down in October 2014. They do not relate to new episodes of assault or violence.
The last conviction relating to alcohol and driving while disqualified is in March 2019.
The findings above demonstrate a criminal record involving repeat high level breathalyser driving-related offences, driving while disqualified and some incidents of family violence and assaults. This may reflect deliberate flaunting of the law.
However, in my view there is a common theme in the record reflective of alcohol abuse and the offending is largely (although not solely) in connection with that. It is also significant in my view that there have not been convictions for assault or family violence since 2014.
There is no evidence of physical violence or assault of the mother during her relationship with the father or since separation. Some of the admitted statements by the father about the mother and her family are capable of being characterised as repeated derogatory taunts, which is an example of behaviour that may amount to family violence, within the meaning of that term as provided in section 4AB of the Act.
Excess consumption of alcohol may explain much of the father’s criminal offending and emotional dysregulation relating to assaults and violence. However, in my view it does not wholly explain the father’s admitted conduct towards to the mother since 2020.
As suggested in the Child Dispute Memorandum dated 24 February 2021,[5] having regard to the entirety of the father’s evidence, he is likely to have less cautious attitudes to risky behaviours. Further, the evidence suggests maladaptive coping mechanisms when things do not go his way.
[5] At [24] and [26].
As there have been no episodes of physical violence or assaults in the last six years, this suggests some capacity to improve conduct and his past record. There have been no alcohol-related crimes since March 2019 and the father has secured and maintained stable employment since his release from prison. He has also largely reliably adhered to quite restrictive requirements related to supervised time spent with the child for twelve months.
I do not accept that the father deliberately has ignored or flaunted instructions from the supervisors during his time with the child. The February report from G was early in the process of supervised time and it is easy to envisage how there may be a misunderstanding about the bike incident.
Although in its infancy, the father has also formed a relationship with Ms H. Counsel for the mother criticised the bone fides of the relationship and suggested it was short and not likely to continue, but the undisturbed evidence is that the relationship is settled, mutually supportive and absent of family violence.
Based on the father’s evidence, it would appear that he has developed some insight into the shortcomings of his past conduct and I consider his evidence was honest and genuine. However, the relatively short time involved in improved conduct referred to at [53] and [54] together with his past history does raise some doubt about the father’s capacity to engage permanently in the positive behaviours with the mother and the child.
The mother's case focused heavily on the father's history of offending and his record of prior convictions. It also relied on numerous admitted or corroborated statements or incidents in which the father adversely interacted with her and her family.
However, the mother gave evidence that she suffers from PTSD and anxiety that originates from prior to her relationship with the father and these parenting matters. It follows that she is likely to have pre-existing emotional vulnerability and despite this, she has been resilient and continued to live life to the full, raising a large family, parenting all her children and working.
In giving her evidence, the impression I gained was that she amplified the anxiety associated with the father’s statements and conduct. This may be due to her personality or pre-existing mental health. She would not entertain the possibility that the father could improve how he communicated with her and his attitude of her. This is despite the fact that there have not been any family violence orders between the mother and the father or breach of them. There is no suggestion that there has been family violence involving the child.
The incident in 2015 was conveyed differently by the evidence relied upon by the parties. I accept that it may have been somewhat distressing to the mother and her children at the time, but no report was made to police. It seems probable that events since and commencement of these proceedings have led to emphasis of concern above what it objectively involved at the time. I note that the mother agreed under cross-examination that there was a practice of using force to open a door held shut with a knife at the time of this incident.
The parties have each described the incident at the park in 2020 differently. The mother's trial affidavit affirmed 22 June 2021, does not refer to this incident at all. Her affidavit affirmed on 5 February 2021 does refer to the incident, but quite briefly and less graphically than conveyed in her oral evidence.[6]
[6] Affidavit of the mother filed 5 February 2021 at [18].
Regarding admitted verbal denigration, abuse and threats by the father, I conclude that this has centred upon the mother ceasing the father’ time with the child and her perception of the risk the father poses to the welfare of the child. The verbal denigration, abuse and threats need to be viewed in the context of the conflict over the father’s time with the child as it predominantly has occurred since the mother ceased the father’s progression of time in October 2019.
I agree with the observation of the family consultant at [23] of the CDC memo:
The parties both presented with limited flexibility in their proposals, both believing to have [the child’s] best interests at heart.
The mother's fixed views were evident from the evidence she gave under cross-examination. Her evidence was that she only knew of some of the father's criminal history when she entered into a relationship with him. Later discovery of the extent of his criminal history has likely influenced her perception of interactions with the father and attitude to him spending time with the child.
The content of and manner of communication by the father has been inappropriate. It is not conducive to effective co-parenting. However, the evidence also demonstrates that the father is willing to improve his approach and I consider he genuinely wishes to change. Whether this is only because of the spotlight of the proceedings is difficult to assess, but I am inclined to the view that the father has developed some insight as he has:
a. An improved record since 2014, noting the findings at [46] and [47];
b. expressed regret for his statements to about and to the mother and her family and accepts the mother is a good mother;
c. Acknowledged and accepted feedback under supervision, such that the later reports from G are positive ones;
d. Positively supported Ms H in caring for her children; and
e. Indicated he will undertake any courses or education required to address his behaviours.
Based on the views of the Family Consultant and the G reports, together with my assessment of the father’s evidence, I am satisfied that he has a meaningful relationship with the child.
RELEVANT LAW AND PRINCIPLES
In parenting proceedings, the paramountcy principle applies and the court is required to make orders that are in the best interests of the child/children.[7] Express direction is provided in section 60B(1) of the Act that this object is to be achieved by ensuring that the child has the benefit of both of their parents having meaningful involvement in their life, to the maximum extent consistent with the child’s best interest. The court is to inform itself of the child’s best interests by the considerations in section 60CC(2) and (3) of the Act.
[7][7] Section 60CA of the Act
Section 60CC(2) requires the Court to make orders that are conducive to a child having a meaningful relationship with both parents, but not if this would detract from necessary protection of the child from physical or psychological harm or exposure to abuse, neglect or family violence. The assessment required also involves consideration of the many considerations in section 60CC(3) as relevant to the circumstances of any given case, but there is no ranking of importance or order of consideration of the relevant considerations.[8]
[8] Aldridge &Keaton (2009) FLC 93-421; Slater & Light [2011] FamCAFC 1
The evaluation of risk of harm required by subparagraphs (a) and (b) of section 60CC(2) is a challenging one to be undertaken on the basis of findings of fact about the nature and degree of risk of harm to the child and the likelihood of it eventuating.[9]
[9] Dieter & Dieter [2011] FamCAFC 82 and Marvel & Marvel [2010] FamCAFC 101.
In addition to the foregoing, the Court is also to apply a rebuttable presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility.[10] This presumption accords with the objective referred to in section 60B(1) of the Act. The meaning of parental responsibility is expressly but not exhaustively provided for in the Act.[11]
[10] Section 61DA(1) -61DA(4)
[11] Sections 61B and 65DAC
Except in the case of consent orders, if the court is satisfied that the presumption of equal shared parental responsibility applies and is not rebutted it must first consider if the child spending equal time with each parent would be in their best interest and if practicable, make such an order.[12]
[12] Section 65DAA
If not persuaded to make an equal spend time with order, the court must then consider whether the child spending substantial and significant time with each parent would be in the child’s best interests and if so and it is reasonably practicable, an order for substantial and significant time should be made. The meaning of the phrase substantial and significant time is provided for in subsection 65DAA(3).
In MRR & GR [2010] HCA 4, the High Court provided guidance in relation to how the provisions in section 65DAA are to be applied and I have had regard to that authority.[13] I am also mindful of the required decision making pathway established in Goode & Goode [2006] FamCA1346. All the considerations in section 60CC are to inform what is in the best interests of a child, which is relevant to making an order for equal shared parental responsibility if the presumption in section 61DA(1) does not apply by virtue of section 61DA(2), or making orders about equal or significant time when the presumption has been rebutted.
[13] Especially at [9], [12], [13] and [14]
DETERMINATION AND PROPOSED ORDERS
The admissions by the father about his communications (including by text) constitute repeat derogatory taunts and establish family violence within the meaning of the Act.[14] Consequently, the presumption of equal shared parental responsibility does not apply, but I am not precluded from making such an order if satisfied it is otherwise in the child’s best interest.[15]
[14] Section 4AB(2)(d)
[15] Walden & Cooper [2018] FamCA 595 at [52] and [53].
In addressing the required factors in section 60CC(2)(a) and (b) of the Act, the findings made above demonstrate the possibility of some degree risk of harm to the child. I largely accept the submissions made on behalf of the father in relation to all section 60CC(3) considerations as set out in his case outline, subject to the remarks and qualifications referred to elsewhere in these reasons. In some respects, the father’s submissions overstate the demonstrated positive changes and insight and understate the limited involvement the father had with the child in the first few years of his life. There possibly has been too little time pass to be confident of enduring improved conduct and entrenchment of his meaningful relationship with the child, but the orders I intend to make will address this by imposing restraints and suspension of time should risk factors increase.
During the hearing, I questioned the father about his criminal record, suggesting it demonstrated lack of emotional and physical regulation. I asked him how he thought this may be addressed. He stated that he would avoid communications with the mother. This may not bode well for safe and effective co-parenting in the future. I enquired how he could moderate his interactions and if he would undertake courses and education designed to avoid conflict. The father stated that he would do whatever I asked him to do and that he was willing to undertake any course ordered.
The evidence referred to at [76] appeared genuine and I consider the father has capacity to interact differently and in a child-focussed way with the mother, her family and the child.
The father has shown a desire and reasonable success in avoiding and limiting the demonstrated past harmful effects of alcohol abuse and the risk this may pose to the child. There is no evidence of actual harm to the child from alcohol abuse or denigrating statements and I assess the likelihood of risk of harm to the child, either physical or emotional, to be low.
I have carefully considered the submissions made by Counsel for the mother, including those set out under the heading relating to primary considerations in section 60CC(2). They emphasise the quality of the mother’s relationship with the child and ignore the positive aspects of the father’s relationship with the child.
The facts and circumstances of each of the authorities to which I was referred by Counsel for the mother as justifying an order for sole parental responsibility are markedly different to those in this matter. In Grant & Grant (1994) FLC 92-506, the Court had expert evidence from a forensic psychiatrist, of the kind I suggested was necessary during the hearing to meet the standard of proof to follow Re Andrew ratio. In Sedgeley & Sedgley [1995] FamCA 154, there was evidence that the father’s behaviour had “damaged every aspect of the wife’s life”, which I have found is not the case in this matter. Even then the trial judge was found to have erred, because ceasing time between the child and father would not alleviate the mother’s concerns about the father’s behaviour towards her and ceasing time was not in the child’s best interest.
The mother’s case also relied on criticism of the father’s parenting.[16] A number, but not all, of the criticisms are likely based on different standards of propriety, risk, cleanliness or manners. The evidence from the mother and her corroborative witnesses about the impacts on the child were in the nature of general assertion rather than persuasive facts. The differences in parenting style and standards will pose some challenges, but there is no objective evidence that the father’s approach is likely to harm the child.
[16] Affidavit of the mother filed 5 February 2021 at [19] and [20].
As suggested by the Family Consultant it will be beneficial for the parties to endeavour to align routines and expectations of the child to avoid further conflicts about the subjective criticisms the mother makes. This can be addressed by the parties undertaking courses relating to effective co-parenting after separation. Given the father’s evidence and conduct especially over the last 12 months, I accept he will participate in such courses as required by the Court.
As to the extent that the mother was critical of the father’s capacity to keep the child safe, there is no evidence that the father has subjected the child to unacceptable risks. The evidence relating to the interactions with the person named Mr N does not permit me to be satisfied of the real basis for this person seeking out the father and assaulting him. The father recognised that the child may be exposed to harm during a time that this person was threating him and it is material to the issue of the child’s welfare that the father acted protectively by notifying the mother and not having the child in his care.
There was some reference in the mother’s case to the father’s use and growth of marijuana, but there were only two references to this in the evidence. When cross-examined about the allegation that he gave the mother cash from sale of a crop he had grown and that the assault by Mr N was related to drugs, the father denied this. I am not inclined to make any adverse findings about this topic as one would have expected the father’s significant criminal record to feature offences relating to marijuana, if this was a material concern in the risk assessment required by section 60CC(2). Whatever the fact is of the father’s use of marijuana, there is no evidence that it is likely to impair capacity to care for the child. Further, his demonstrated capacity to maintain stable employment in a responsible position, suggests no drug abuse or impairment.
The father has not had opportunity due to his periods of imprisonment and subsequent limitation of time with the child to exercise effective parental responsibility. The mother has effectively exercised parental responsibility alone to date. Her fixed attitude of the father makes it unlikely that she will easily cooperate with him about decisions pertaining to parental responsibility.
It is not in the child’s best interests for the parents to be in conflict about major and long term decisions such as health and education. The mother has been the primary carer, reliably and consistently exercising parental responsibility for the child. She should continue to be largely responsible for making final decisions of this nature. However, it is reasonable and appropriate that she consult with the father to endeavour to agree a position and keep him informed.
As the presumption of equal shared parental responsibility does not apply, the Court need not first consider if the father should have equal time or alternatively significant time with the child. But what orders are made about the father spending time with the child should be determined by overriding considerations of what is in the child’s best interests and practicable.
There is no evidence of logistical barriers that would make either equal time or significant time impracticable. However, the child’s age and limited time to date between father and child (supervised time in the last 12 months), together with the fact that the mother has been the primary carer, dictates that time should slowly and progressively increase in my view. This progressive approach will ensure the child satisfactorily adjusts to the changes and the father consolidates his improved attitudes towards the mother and her family.
The father’s time with the child should also transition to unsupervised time, as this is consistent with fully promoting the father’s meaningful relationship with the child and I am not satisfied that there is unacceptable risk to the child.
I have arrived at this view because the child is unlikely to have a fully meaningful relationship with the father by spending limited and supervised time as the mother proposes indefinitely. Without increased and unsupervised time, the child would never experience the father other than in an abstract environment for brief periods, far removed from daily parent/child relations. Indefinite supervised time would likely be limited to recreational or play settings (based on the evidence before the Court) and this will not permit the child to experience all beneficial facets of the child/parent relationship.
The Court will hear the parties as to the precise terms of the final orders I propose in accordance with these reasons. As the Court’s proposed orders do not fully accord with those sought by either party, I will hear from the parties’ Counsel before making final orders.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 11 November 2021
0
8
1