KILBEE & HAWTHORNE
[2018] FCCA 1182
•14 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KILBEE & HAWTHORNE | [2018] FCCA 1182 |
| Catchwords: FAMILY LAW – Parenting application in relation to child aged 4 – parental responsibility – the time the father spends with the child – the father’s overly negative views of the mother – unacceptable risk considered. |
| Legislation: Family Law Act 1975 (Cth), Part VII, ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Goode & Goode [2006] FAMCA1346; (2007) 36 Fam LR 422 MRR v GR [2010] HCA 4; (2010) 42 Fam LR 531 |
| Other Articles Cited: The Alienated Child: A Reformulation of Parental Alienation Syndrome, Joan B Kelly and Janet R Johnston. Family Law Review, Vol 39, No. 3, July 2001 249-266 |
| Applicant: | MR KILBEE |
| Respondent: | MS HAWTHORNE |
| File Number: | NCC 2615 of 2015 |
| Judgment of: | Judge Costigan |
| Hearing dates: | 26 & 27 February 2018 |
| Date of Last Submission: | 28 February 2018 |
| Delivered at: | Newcastle |
| Delivered on: | 14 May 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Self-represented |
| Counsel for the Respondent: | Ms Carty |
| Solicitors for the Respondent: | Ashby Family Solicitors |
| Solicitor Advocate for the Independent Children's Lawyer: | Ms O’Rourke |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW |
ORDERS
All previous orders in relation to the child [X] born (omitted) 2013 (‘[X]’) are discharged.
That the respondent mother have sole parental responsibility for [X].
That [X] live with the mother.
That [X] shall spend time with the father as agreed between the parents but failing agreement as follows:
(a)Each alternate Saturday from 10am to 4pm
(b)On Father’s Day from 10am to 4pm
(c)On Christmas Day in even numbered years from 10am to 4pm and
(d)On Boxing Day in odd numbered years from 10am to 4pm
On (omitted) ([X]’s birthday) in every year, the parent with whom [X] is not living with or spending time with will spend time with him:
(a)If a school day from after school to 6pm; or
(b)If a non-school day from 1pm to 6pm;
(c)Or as otherwise agreed between the parties.
For the purposes of change-over, the mother shall deliver [X] to the father at the commencement of time and she shall collect [X] from the father at the conclusion of time with the location for changeover to be at (omitted) Shopping Centre, outside the (omitted) store.
The father is at liberty to telephone [X] each Wednesday between 6pm and 6.30pm.
The parents will both be entitled to attend all events involving [X] including:
(a)Sporting fixture;
(b)Extra curricula activities that allow for parental attendance;
(c)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.
And the parent who has [X] in their care on the day of such activity will be responsible for their day to day care at such event and [X]’s transportation to and from that event.
These orders are sufficient authority for the father to receive copies of all [X]’s school reports and merit cards, any written material pertaining to [X]’s academic and extra-curricular activities and for him to order school photographs (at his own expense).
The parents shall keep each other informed of changes to their landline and mobile telephone contact numbers addresses and email addresses and advise the other parent of any changes to same within 48 hours of such change occurring.
Each parent to is notify the other as soon as is practicable on the happening of any of the following to [X]:
(a)Any serious medical problems or illnesses suffered by [X] whilst in their care;
(b)Any medication that has been prescribed for [X];
(c)Any other matter relevant to [X]’s welfare.
Neither parent will denigrate the other party, their family and their friends, to or in the presence or hearing of [X] and will use their best endeavours to ensure that no one else does so and will remove [X] from any environment when the same is occurring.
That both parents shall be and are hereby restrained from causing [X] to be taken to or left at the premises known as ‘(omitted) and the father shall be restrained from attending at ‘(omitted) with [X] at any time that [X] is in the care of the father.
Both parents are restrained from administering corporal punishment upon [X] and will ensure that no other person does so.
Both parents are restrained from consuming alcohol during the times that [X] is living with or spending time with them and for 12 hour prior to [X] coming into their care.
Both parents are restrained from consuming illegal or illicit drugs during the times that [X] is living with or spending time with them and for 12 hours prior to [X] coming into their care.
Both parents shall ensure that [X] is not left in the car of any person under the influence of alcohol in excess of the NSW driving limit or under the influence of illegal drugs during any time that [X] is living with or spending time with them.
Both parents shall ensure that [X] is not exposed to family violence during any times that [X] is living with or spending time with them and shall remove him from any environment where this is taking place.
That these orders are sufficient authority for the mother to apply for and obtain a passport for [X].
IT IS NOTED that publication of this judgment under the pseudonym Kilbee & Hawthorne is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT NEWCASTLE |
NCC 2615 of 2015
| MR KILBEE |
Applicant
And
| MS HAWTHORNE |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings concerning the child [X] born (omitted) 2013 (‘[X]’). [X] is currently 4 years 8 months.
The applicant father is Mr Kilbee (‘the father’) and the respondent mother is Ms Hawthorne (‘the mother’).
Pursuant to interim orders made on 8 December 2015 [X] currently lives with his mother and spends time with his father each Saturday from 9am until 5pm and overnight each Tuesday from 3pm until 3pm Wednesday.
The matter was listed for final hearing for three (3) days commencing 26 February 2018.
The father has been self-represented in these proceedings since January 2017. He did not file any trial material and in fact had not filed any material since 2015.
On the first day of hearing Counsel for the mother sought to proceed by way of an undefended hearing. The Independent Children’s Lawyer did not seek to be heard on the issue.
I refused the mother’s application and stood the matter in the list to allow the father an opportunity to consult with the duty lawyer.
With the assistance of the duty lawyer, the father prepared a brief affidavit and leave was granted to allow him to file the affidavit in Court.
The hearing was eventually able to proceed at 2.15pm and ran for three (3) days.
Evidence was completed at the end of day two (2) and the matter listed for submissions at 12 noon on Wednesday 28 February 2018. Leave was granted to Ms Carty, Counsel for the mother to appear by telephone. The matter had originally been set down for three (3) days but a listing error by the Court meant the matter had only been listed for two (2) days.
Background
The father Mr Kilbee (‘the father’) was born on (omitted) 1967 and is currently 51 years of age. He lives alone in a one (1) bedroom apartment at the (omitted) Boarding House in (omitted). He is in receipt of Newstart Allowance.
The mother Ms Hawthorne (‘the mother’) was born on (omitted) 1976 and is currently 41 years of age.
With leave of the Court, the mother gave oral evidence that in the last week she and [X] had moved from their residence in (omitted) and was now living at (omitted) with her former partner Mr J and their three (3) children [A] aged 12, [B] aged 10 and [C] aged 8. She described the nature of her relationship with Mr J as one of ‘co-parenting’ by which I took her to mean that they were not in a romantic relationship.
The parties met in the later part of 2011 when they were both living at the (omitted) Boarding House in (omitted) (‘(omitted)’). The father says that when they met the mother was drinking between three (3) and four (4) casks of wine a day. The mother describes herself as a ‘functional alcoholic’ presumably because she was also working at the time. She says her level of alcohol consumption was around one (1) litre of wine each day. If the father’s description of her level of sobriety and her alcohol fuelled conflicts with other members of the boarding house are correct, and he was not seriously challenged on that evidence, then the mother was far from ‘functional’.
The mother alleges that the father was drinking on average a six (6) pack of Woodstock Bourbon each day.
As the family consultant observed in her report: ‘The mother’s relationship with the father appears to have commenced in an environment of mutual substance abuse.’[1]
[1] Family Report, paragraph 156
In March or April 2012 the father says the mother moved out of their (omitted) apartment but returned after a few days.
In December 2012/January 2013 the father says the mother again moved out of their (omitted) apartment and into rented accommodation in (omitted) with two (2) young men. She moved out after about two (2) weeks and around the same time is charged with fraud and loses her job.
In June/July 2013, presumably following a risk of harm report from an unknown source, the parents are interviewed by Family and Community Services. The father says that the caseworkers told the mother that they would be removing the baby.
On (omitted) 2013, approximately one (1) month before [X] was born, the mother says she stops drinking alcohol.
[X] was born on (omitted) 2014. The father says that Department Caseworkers attended the hospital shortly after his birth. He deposes that they were satisfied to leave [X] in the care of the parents on the basis that the father would be his primary carer and subject to supervision. Caseworkers also insisted that the mother attend residential rehabilitation.
In November 2013, the mother admitted herself to (omitted) Rehabilitation Program (‘(omitted)’). The mother and [X] stayed at the residence while she completed the six (6) months program and then a further two (2) months while she undertook a series of courses.
Prior to the mother entering (omitted), the father says they moved out of (omitted) and rented accommodation in (omitted). He says that his parents paid the bond but he paid the rent and outgoings on the understanding that this property would be their family home upon the mother and [X] leaving (omitted).
In May 2014 the mother and [X] left (omitted) and lived with the father in (omitted).
In July 2014 the parties separated.
The mother says that when she and [X] moved into the (omitted) property, she observed the father drinking alcohol to excess and knew that it would be difficult for her to maintain her sobriety in that environment. She says she decided to end the relationship and contacted (omitted) Women's Housing Program who found a property for her and [X] in (omitted).
The mother deposes that while she wanted to support the father’s relationship with [X], she did not want the father to be a disruptive influence in the early stages of her rehabilitation. She therefore refused to tell the father where she was living. She says she transported [X] to and from the father’s residence on Mondays, Wednesdays and Fridays each so that [X] could spend time with his father.
The father says that the Department of Family and Community Services facilitated the mother’s decision to leave the relationship and were present the day the mother told him she was leaving. He believes the mother had told lies to the Department Caseworkers who threatened to call the police if he tried to stop the mother.
In August 2014 the parties agreed that [X] spend time with the father each Monday, Wednesday and Friday to Saturday.
In January 2015 the mother deposes to receiving a telephone call from the father in which he said:
‘I’m going to take you to court. I deserve custody of [X]. You’re nothing but a drunk and I’ll get full custody.’[2]
[2] Mother’s affidavit filed 2 February 2018, paragraph 60
On 26 March 2015 the parties participate in mediation but no agreement was reached and the father says that the mother stopped his time with [X] for over a fortnight. When time was resumed, he says that the mother significantly reduced it to daytime on a Saturday only. The arrangement was that the mother would deliver [X] to the father at (omitted) in the morning and the father would return him to the mother at (omitted) in the afternoon.
On 6 October 2015 the father files his initiating application seeking final orders outlined in paragraph 44 below and interim orders for sole parental responsibility, [X] to live with him and spend time with the mother each Saturday from 9am until 5pm with changeovers at (omitted). He also sought restraints against the mother consuming alcohol and for her to undertake a liver function test and CDT test and engage in a drug and alcohol assessment.
On 13 October 2015 the mother sought to commence proceedings by way of an initiating application but which was filed as a response. In her response the mother sought final orders for sole parental responsibility, for [X] to live with her and spend time with the father as determined by her. She sought interim orders for [X] to live with her and the father to undergo urinalysis for drugs and upon a negative results the father spend time with [X] each Saturday 9am to 3pm and if the results are positive, the father’s time be in the presence of the paternal grandparents. The mother proposed that changeovers occur at (omitted) McDonalds or the residence of the paternal grandparents. She also sought a number of restraints in relation to denigration, corporal punishment, consumption of illicit drugs or alcohol and family violence.
The first return date of the application was 8 December 2015 when the matter came before Judge Myers. By consent, orders were made for [X] to live with the mother and upon the father providing a negative drug screen he would spend time with [X] each Saturday from 9am until 5pom and overnight each Tuesday from 3pm until 3m Wednesday. Further orders were made for the appointment of an Independent Children’s Lawyer, a restraint against the mother consuming alcohol for 12 hours prior to and during any period that [X] was in her care, a restraint against the father from consuming illicit substances 12 hours prior to and during any period that [X] was in his care and an order for the mother to undergo random CDT testing at the request of the Independent Children’s Lawyer.
On 29 March 2016 Judge Myers made orders for the preparation of a family report.
On 10 October 2016 the parties, [X] and the paternal grandparents attended the family report interviews with family consultant Ms A.
On 2 November 2016 the family report was released to the parties, their legal representatives and the Independent Children’s Lawyer.
On 24 November 2016 the matter was listed for directions hearing before Judge Myers and the father’s time with [X] was reduced to each Wednesday and Thursday from 10am until 4pm.
On 4 April 2017 the matter was listed for directions hearing before Judge Henderson and adjourned for the parties to attend a Legal Aid Intervention Conference.
On 17 August 2017 the matter was listed for directions hearing before Judge Cole and adjourned for the allocation of final hearing dates.
On 20 November 2017 the matter came before me and I listed the matter for final hearing on 26 and 27 February 2018.
On 5 February 2018 the mother filed an amended response seeking final orders as set out at paragraph 46 below.
At the final hearing the father was self-represented. The mother was represented by Ms Carty of Counsel and the Independent Children’s Lawyer by Ms O’Rourke, Solicitor-Advocate.
Competing Applications
The father sought final orders in his initiating application filed 6 October 2015 as follows:
1.The father have sole parental responsibility for [X] (‘the child’) born (omitted) 2013.
2.The child shall live with the father.
3.The child shall spend time with the mother as agreed between the parties but failing agreement as follows:
a.Commencing from the date of these Orders, each Saturday from 9am to 5pm.
b.Upon the child attaining the age of six (6) years old: each alternate weekend from 9am Saturday to 9am Sunday.
c.Upon the child attaining the age of ten (10) years old: each alternate weekend from 9am Saturday to 5pm Sunday
d.Upon the child attaining the age of thirteen (13) years old: each alternate weekend from the cessation of school Friday to the commencement of school on Monday.
4.On the following occasions of special significance the mother shall spend time with the child as agreed between the parties but failing agreement:
a.Commencing from the date of these orders:
a.On Christmas Day from 2.00pm to 7.00 pm in odd numbered years and from 9.00am to 2.00pm in even numbered years
b.On Good Friday from 2.00pm to 7.00pm in odd numbered years and from 9.00am to 2.00pm in even numbered years
c.On the child’s birthday, being (omitted), from 2.00pm to 7.00pm in odd numbered years and from 9.00am to 2.00pm in even numbered years
d.Mother’s Day 9.00am to 5.00pm
e.On the Mother’s birthday, being (omitted), from 2.00pm to 7.00pm in odd numbered years and from 9.00am to 2.00pm in even numbered years
b.Upon the child attaining the age of six (6) years old:
a.On Christmas Day from 2.00pm to Boxing Day 2.00pm in odd numbered years and from Christmas Eve 2.00pm to Christmas Day 2.00pm in even numbered years
b.On Good Friday from 9.00am to Easter Saturday 9.00am in odd numbered years and on Easter Sunday from 4.00pm to Easter Sunday 4.00pm in even numbered years
c.On the child’s birthday, being (omitted), from 2.00pm to 7.00pm in odd numbered years and from 9.00am to 2.00pm in even numbered years, and if a school day from conclusion of school to 6.00pm in odd numbered years and from 6.00pm to 8.00pm in even numbered years.
d.On the Mother’s birthday, being (omitted), 2.00pm to 7.00pm in odd numbered years and from 9.00am to 2.00pm in even numbered years, and if a school day from conclusion of school to 6.00pm in odd numbered years and from 6.00pm and 8.00pm in even numbered years.
e.From 5.00pm the Saturday before Mothers’ Day to 5.00pm Mother’s Day
f.For the sake of these orders the mother’s time is suspended the Father’s Day weekend.
c.Upon the child attaining the age of thirteen (13) years old:
a.Terms 1, 2 & 3 and Christmas school holidays for the first half in odd numbered years and the second half in even numbered years with time commencing at the conclusion of the last day of student attendance for the term, and changeover occurring 5.00pm in the middle Sunday of the school holidays and concluding 5.00pm the Sunday before the commencement of the next school term.
b.On Christmas Day from 2.00pm to Boxing Day 2.00pm in odd numbered years and Christmas Eve 2.00pm to Christmas Day in even numbered years.
c.From the conclusion of school the Thursday before Good Friday to Easter Saturday 9.00am in odd numbered years and on Easter Saturday from 9.00am to Easter Monday 4.00pm in even numbered years.
d.On the child’s birthday, being (omitted), from 2.00pm to 7.00pm in odd numbered years and from 9.00am to 2.00pm in even numbered years, and if a school day from conclusion of school to 6.00pm in odd numbered years and from 6.00pm to 8.00 pm in even numbered years.
e.On the Mother’s birthday, being (omitted), 2.00pm to 7.00pm in odd numbered years and from 9.00am to 2.00pm in even numbered years, and if a school day from conclusion of school to 6.00pm in odd numbered years and from 6.00pm to 8.00pm in even numbered years.
f.From 5.00pm the Saturday before Mother’s Day to 5.00pm Mother’s Day
g.For the sake of these orders the mother’s time is suspended the Father’s Day weekend.
5.Where changeover does not otherwise take place at school, the father will drop the child off at the mother’s residence, and the mother will return the child to the father at (omitted) at the conclusion of her time.
6.The mother have reasonable telephone contact with the child.
7.The parties are to keep each other informed of their residential address and contact telephone number and must advise the other of any change to these details no later than 48 hours after such change has occurred.
8.The parties are restrained from denigrating the other, or their extended family. In the presence or hearing of the child and shall not allow any third party to do so.
9.The parties are restrained from and from allowing any third party:
a.To physically discipline the child
b.Smoke in the car, home, or in the vicinity of the child
c.Drive the child if not in possession of a valid driver’s licence.
10.The mother is restrained from consuming any alcohol during or within 24 hours prior to, the child coming into her care.
At paragraph 19 of his affidavit filed in Court on 26 February 2018 the father deposed:
‘I would oppose any reduction in time that [sic] spend with [X].’
In the course of submissions, Counsel for the mother tendered a revised minute of order [3]in the following terms:
[3] Exhibit D
1.That the respondent mother have sole parental responsibility for [X].
2.That [X] live with the mother.
3.That [X] shall spend time with the father as agreed between the parents but failing agreement as follows:
a.Each alternate Saturday from 10am to 4pm
b.On Father’s Day from 10am to 4pm
c.On Christmas Day in even numbered years from 10am to 4pm and
d.On Boxing Day in odd numbered years from 10am to 4pm
4.For the purposes of change-over, the mother shall deliver [X] to the father at the commencement of time and she shall collect [X] from the father at the conclusion of time with the location for changeover to be at (omitted) Shopping Centre, outside the (omitted) store.
5.The father is at liberty to telephone [X] each Wednesday between a 6pm and 6.30pm.
6.On (omitted) (child’s birthday) in every year, the parent with whom [X] is not living with or spending time with will spend time with him:
a.If a school day from after school to 6pm or
b.If a non-school day from 1.00pm to 6.00pm
c.Or as otherwise agreed between the parties.
7.Each parent to is notify the other as soon as is practicable on the happening of any of the following to [X]:
a.Any serious medical problems or illnesses suffered by [X] whilst in their care;
b.Any medication that has been prescribed for [X];
c.Any other matter relevant to [X]’s welfare.
8.The parents shall keep each other informed of changes to their landline and mobile telephone contact numbers addresses and email addresses and advise the other parent of any changes to same within 48 hours of such change occurring.
9.Neither parent will denigrate the other party, their family their friends to or in the presence or hearing of [X] and will use their best endeavours to ensure that no one else does so and will not remove [X] from any environment when the same is occurring.
10.Both parents are restrained from administering corporal punishment upon [X] and will ensure that no other person does so either.
11.Without admissions both parents are restrained from consuming alcohol during the times that [X] is living with or spending time with them and for 12 hour prior to [X] coming into their care.
12.Without admissions both parents are restrained from consuming illegal or illicit drugs during the times that [X] is living with or spending time with them and for 12 hours prior to [X] coming into their care.
13.Both parents shall ensure that [X] is not left in the car of any person under the influence of alcohol in excess of the NSW driving limit or under the influence of illegal drugs during any time that [X] is living with or spending with them.
14.Both parents shall ensure that [X] is not exposed to family violence during any times that [X] is living with or spending time with them and shall remove him from any environment where this taking place.
15.That these orders are sufficient authority for the mother to apply and obtain a passport for [X].
16.That both parents shall be and are hereby restrained from causing [X] to be taken to or left at the premises known as ‘(omitted) and the father shall be restrained from attending at ‘(omitted) with [X] at any time that [X] is in the care of the father.
In her Case Outline filed 23 February 2018, the Independent Children’s Lawyer supported the orders sought by the mother together with ‘an order that restrains the father from spending time with the child at the boarding house, where it is understood, he currently resides.’ In the course of submissions an additional minute of orders sought by the Independent Children’s Lawyer was tendered and read as follows:
1.The parents will both be entitled to attend all events involving the child including:
a.Sporting fixtures;
b.Extra-curricular activities that allow for parental attendance;
c.School functions and events that allow for parental attendance including but not limited to concerts, school assembles, sports days, parent and teacher interviews, canteen duties and social functions.
And the parent who has the child in their care on the day of such activity will be responsible for their day to day care at such event and the child’s transportation to and from that event.
2.These Orders are sufficient authority for the father to receive copies of all the child’s school reports and merit cards, any written material pertaining the child’s academic and extra-curricular activities and for him to orders school photographs (at his own expense).
Issues
The issues identified by the Independent Children’s Lawyer[4] for determination were:
a. Where the [X] should live:
b. The nature and extent of the risks posed to [X] in his respective parent’s care.
c. How the risks, if any, can be mitigated.
d. Is the presumption in favour of equal shared parental responsibility rebutted and, if so, what are the parties’ capacity to co-parent and communicate in relation to the long term care, welfare and development of [X]?
[4] Independent Children’s Lawyer’s Case Outline page 6, paragraph E
The family consultant[5] also identified a number of risk issues for [X] the each of the parent’s households:
· The mother’s serious and long-standing problem with alcohol misuse;
· The father’s long-standing cannabis use;
· The mother’s allegation that the father has an alcohol abuse problem;
· The mother’s long-standing history of depression;
· The father’s difficulties in maintaining stable long-term relationship, his rigid, dichotomous thinking and high levels of somatisation;
· Poor parental communication.
[5]
The family consultant also observed [X]’s developmental speech difficulties in the course of interview.
Evidence of the father
The father relied on the following documents at the final hearing:
· His initiating application filed 6 October 2015; and
· His affidavit affirmed and filed in Court on 26 February 2018.
The father also tendered in evidence the following documents:
· His urinalysis reports dated 10 December 2015, 12 April 2016, 16 July 2016 and 2 August 2016 (Exhibit L)
· Letter dated 30 October 2016 from Mr R Psychologist to the Department of Housing (Exhibit M)
· Reference letter dated 7 December 2015 for the father from Mr D (Exhibit N).
The father gave evidence and was cross-examined by Counsel for the mother and then Solicitor-Advocate for the Independent Children’s Lawyer.
At one point in cross-examination with Counsel for the mother, the father stated that he was in constant pain, and that as he sat in the witness box answering questions, the pain was probably a 9 (nine) on a scale from 1 (one) to 10 (ten). However, this seemed inconsistent with my observation of the father. He gave his evidence in a very confident and at times, relaxed manner. He seemed so at ease that I gained the impression that he was enjoying himself, particularly his exchanges with Counsel for the mother.
The father was born in the (country omitted) and his parents and two (2) other siblings immigrated to Australia when he was seven (7) years old.
He told the family consultant that towards the end of his schooling, he was involved in a serious road traffic accident which involved a period of rehabilitation. He decided not to return to school but undertook a (omitted) apprenticeship and worked in that industry for around 15 years. He then described a varied employment history including working as a (employment omitted).
Father reported that he had never been married and that [X] was his only child.
He says that he and the mother met while they were both living in a boarding house in (omitted) and that it had been her ‘plan all along to fall pregnant.’ He denied any domestic violence in the relationship but conceded that there had been verbal disputes usually when the mother was adversely affected by alcohol.
In submission he denied any mental health problems or suicidal tendencies and complained that the mother was using her mental health as a ‘get out of jail free card.’
Counsel for the mother explored with the father in cross-examination details of his current accommodation. He described it as a boarding house with ¾ of the site being a motel and ¼ being temporary accommodation. There are sixty (60) rooms in total. His own accommodation he describe as a studio accommodation with a kitchen and bathroom. He pays $270 per week and there are no other outgoings. He says that he pays the full rent but on two (2) occasions he has been paid $50 by the owner for general maintenance work on site which has put back into the rent. He emphasised that this did not happen on a regular basis.
After [X] was born, the father says that the mother insisted they move from (omitted) and so the father rented a property in (omitted). He said that the mother lived there for two (2) weeks at either end of the period of rehabilitation. The father said that the mother insisted because the landlord was ‘kicking her arse out’ and moving out was the only way they could stay together.
It was put to the father that the reason the mother wanted to move out was because the boarding house was and remains unsuitable to raise a young child. He was asked about his comment to the family consultant describing the boarding house as ‘drug central’. The father said that the management had ‘cleaned up the property’ about 2 ½ years ago.
The father maintained a very negative view of the mother. He told the family consultant:
‘According to the father it had been the mother’s plan all along to fall pregnant and have a child. He said that he had been ‘used’ in this respect. The father said it was clear to him that the mother had never had any intention of him playing a significant role in the child’s life. The father advised that he believed that the mother was using the child ‘as a money pit for her to get government benefits because she was no longer allowed to work as a (occupation omitted).’[6]
[6] Family Report, paragraph 37
It was clear at the hearing that his view had not changed. He said that he did not believe that the mother had stopped drinking. He saw no benefit to [X] of being exposed to the mother.
He was asked by Counsel for the mother whether there was anything positive he could say about the mother. He said that ‘She is fairly consistent in being regimental with him but is a little bit too harsh.’ He agreed with Counsel that by regimental he meant ‘firm’ which he intended to have a positive connotation. But then he went to say that ‘[X] is a thing to her [the mother]’, that ‘She [mother] is malicious, vicious and psychotic. Not just to me but to all men’.
The father’s opening statement in submissions is possible the best summary of the father’s views:
‘Ms Hawthorne’s first affidavits are so farcical and misleading and well fraudulent is the word I keep referring back to, I mean this woman has played me like a fool for 7 years obviously and yes I do resent it and hold some begrudgements against her. I make no denial of that.’
The father described himself as a caring doting father whose only concern is for [X]’s future and not for his own, he says he can easily get over his ill feeling for the mother.
The father was unable to accept that his use of cannabis or his drinking might compromise his parenting capacity but was harshly judgmental of any parenting deficits on the part of the mother. In his view the mother was entirely at fault for the demise of their relationship and sees nothing in the mother's qualities as a parent that are positive.
Evidence of the mother
The mother relied on the following documents at the final hearing:
· Her Amended Response filed 5 February 2018;
· Her affidavit filed 2 February 2018; and
· Case Outline file 21 February 2018 (Exhibit C).
The mother also tendered in evidence the following documents:
· Documents produced under subpoena by Department of Family and Community Services – pathology report dated 21 July 2014 - blue tag M11 (Exhibit E) and pink tags M5 & M6 and blue tag ICL 6 (Exhibit F);
· Documents produced under subpoena by NSW Police (S/P 5) – Event reference (omitted) dated 1 July 2016 (Exhibit G);
· Child Support Assessments for [X] dated 30 July 2016 and 29 October 2017 (Exhibit I);
· Documents produced under subpoena by NSW Police (S/P 9) - Event reference (omitted) dated 6 July 2012 (Exhibit J) and Event reference (omitted) dated 18 April 2012 (Exhibit K); and
· Documents produced under subpoena by Family Care (omitted) – yellow tag ICL 1 (Exhibit R) and speech pathology notes for [X] paged 2-19 (Exhibit M).
The mother gave evidence and was cross-examined by the father and by the Solicitor Advocate for the Independent Children’s Lawyer.
The mother was granted leave to give short updating evidence about her and [X]’s current accommodation. She said that she is now living at the home of her former partner Mr J who is the father of her three (3) older children. She said it was not a romantic relationship and that she pays board. She occupies a room in the house with [X].
The parents agreed position was that [X] would attend the same school as two (2) of his half-siblings which will be (omitted) School.
The mother said she was currently working on a casual basis in the (employer omitted). She had worked one (1) day this year but expected more days throughout the year particularly in the winter months.
Her evidence was that on the days that [X] does not spend with his father, he attends pre-school three (3) days a week.
The mother has a very difficult personal history. She told the family consultant that she had been adopted but now has very infrequent contact with her adopted family. She described an incident when she was around 12 years of age when her adopted brother set fire to the family home. The family consultant wrote:
‘The mother provided a report of the fire indicating significant amounts of trauma attached to the incident. Although she escaped apparently without physical injury she continues to suffer psychological consequences from the incident. Her adopted parents apparently sustained burns during the event.’
77.The mother reported to the family consultant that by the time she commenced her university studies in Brisbane, she had developed a problem with alcohol misuse. She stole a flat mates’ credit card and used it to buy alcohol. The offence was reported to police and she was charged and convicted of obtaining goods by deception and paid off the fines by way of a Work Development order. The family consultant noted at paragraph 124 of her report: ‘NSW Police records indicated that the mother had been convicted of 2 counts of dishonestly obtaining property by deception and had been fined by way of penalty.’ These were the only offences in the mother’s criminal history which was tendered in evidence.[7]
[7] Exhibit O
She says she discontinued her studies and returned home. She was prescribed anti-depressive medication and commenced counselling and was eventually able to recommence her studies at (omitted) University where she took her (omitted) degree in (studies omitted).
She met her first partner Mr J in or around 2001 and they moved in together three (3) years later. They had three (3) children but her alcohol problem caused problems in her relationship and impacted her ability to care for the children. The family consultant recorded at paragraph 69 of her report:
‘… on one occasion in particular she had fallen asleep ‘drunk’ on the lounge whilst caring for the children and that one of the children had cut themselves quite badly on her broken wineglass. It was after this that her relationship with her partner broke down and he asked her to leave the family.
The mother said she had been so ashamed after these events that she had not spent time with the children for any extended period following her leaving the relationship.’
The mother moved out of the family home and found accommodation at the (omitted) boarding house where she met the father. She described it as ‘having been full of individuals with substance abuse problems.’[8]
[8] Family Report, paragraph 71
The mother says that when she met the father he was a daily user of alcohol and cannabis and that he had difficulty in maintaining employment because of unreliability due to substance abuse and propensity for conflict with his employers.
In 2011 the mother was medically retired as a (occupation omitted) on the ground of alcoholism and depression. The family consultant notes at paragraph 123 of her report that: ‘Medical records for the mother included notation she had been treated for anxiety and depression in 2003 with symptoms of these conditions having reported by the mother as having been problematic since her teens.’ Thereafter she says she held a series of unskilled positions.
The mother says that her pregnancy with [X] was unplanned and that she continued to drink heavily. The Department of Community Services became involved with the family in the latter stages of the pregnancy and according to the mother recommended that both she and the father attend an alcohol program.
When [X] was around 3 months old the mother entered (omitted) rehabilitation facility. She says that the father refused to enter a drug and alcohol program. The mother’s evidence was that she was breastfeeding [X] and so the father would take [X] for day visits of up to four (4) hours at a time, three (3) times a week.[9]
[9] Mother’s affidavit filed 2 February 2018, paragraph 23
The mother successfully completed the program and returned to live with the father and [X] in (omitted), but moved out in July 2014 and secured accommodation for herself and [X] in (omitted).
On the whole I had the impression that the mother did her best to be truthful about matters of which she was asked. Her answers were on the whole thoughtful and considered.
I was not left with the impression that the mother reconstructed past events to suit her purpose or deliberately gave evidence in cross examination which was unreliable or inaccurate. She made concessions where appropriate for example around facilitating additional time for the father and acknowledged that [X] loved his Dad. She gave evidence that [X] refers to his time with his father as ‘daddy day’ that he looks forward to those visits and enjoys the time he spends with his father.
She also acknowledged that there would be some transitional problems for [X] if his time with his father was reduced. Her evidence was:
‘It would be an adjustment period. I would expect sideways behaviour and tantrums but I would also have set up alternative activities for those days.’
Independent Children’s Lawyer
The Independent Children’s Lawyer relied on the following documents at the final hearing:
· Family Report prepared by Ms A and dated 2 November 2016; and
· Case Outline filed 23 February 2017.
The Independent Children’s Lawyer also tendered in evidence the following documents:
· Table of urinalysis requests for the period 7 March 2016 to 21 November 2017 (Exhibit A);
· Correspondence between the Independent Children’s Lawyer and the father’s previous legal representatives and the father between 11 May 2016 and 21 November 2017 and SMS text messages between 2 February and 20 April 201 (Exhibit H)
· Document produced under subpoena by NSW Police – mother’s criminal history (Exhibit O);
· Email dated 20 April 2017 from mother’s solicitor to Independent Children’s Lawyer (Exhibit P)
· Documents produced under subpoena by (omitted) Local Health – yellow tag ICL 2 (Exhibit Q)
The final position of the Independent Children’s Lawyer was encapsulated by Ms O’Rourke in the following final submission:
‘It is the Independent Children’s Lawyer’s view that it is not necessary for the father to have his spend time with [X] supervised ……………..there has been nothing adduced that the child has been physically harmed in the care of the father ……………..the evidence is that the child not only enjoys the time he spends with the father but is excited about that time and anticipates that time with his father …………………..the risk of harm would be mitigated because it won‘t be occurring at the accommodation [(omitted)] and because in the view of Ms A the lesser exposure is likely to mitigate the risk of psychological harm posed by the father to [X] on the basis of his very negative, profoundly rejecting attitude towards the mother.’
Family Consultant
The family consultant Ms A prepared the family report in relation to these parties on 2 November 2016 when [X] was aged 3 years and 2 months.
She also gave oral evidence by telephone on day 2 of the hearing having read the parties’ trial affidavits and the revised order sought by the mother.
Ms A is a consultant forensic psychologist of many years’ experience. As part of the family report process, Ms A provided both parents with a Personality Assessment Inventory (PAI) to ‘provide additional information regarding [their] psychological function as it may relate to [their] parenting.’
In relation to the father Ms A wrote:[10]
‘……..The father took a much longer than expected time to complete the PAI. He advised it was not because he had difficulties with reading or comprehending the items, but it was because he wished to reflect on his responses. Unfortunately even with the additional time allocated the father did not complete sufficient items to provide information which would generate a valid clinical profile.
55. Of the items the father did complete relative elevations were noted in the areas of somatisation, feeling persecuted in interpersonal relationships, chronic stress and resentment. An elevation was noted on the drug scale which were endorsed but not on the alcohol subscale.’
[10] Family Report, paragraphs 54 -55
In relation to the mother Ms A wrote:
‘……….Her completion of the PAI suggested that she is reluctant to recognise or acknowledge faults within her psychological function and repress undesirable characteristics. There were some indications that the mother had not intentionally attempted to distort the profile, suggesting that covert repression of uncomfortable emotional states may be a motivating factor in the manner in which the mother presents herself.
90. ………….the mother described areas of problematic psychological function to a greater degree than is typical for most defensive responded. The areas that were particularly highlighted included historical thoughts of death, poor interpersonal rapport/failure in close relationships, a history of some antisocial behaviour and physiological signs of depression.
91. The PAI did not identify any current problems with drug or alcohol abuse although historic alcohol abuse was reported.
92. The mother’s interpersonal style appeared characterised by withdrawal and introversion. She is likely to be passive and distant in many relationships. The mother described herself as being meek and unassertive and she appears to have difficulty standing up for herself to people when assertiveness is warranted. The mother may have some difficulty in the appropriate expression of anger.’[11]
[11] Family Report, paragraphs 90-92
The family consultant was asked questions about each of the risk issues she had identified in her report. Firstly, in relation to the mother’s serious and long-standing problem with alcohol misuse the family consultant had written in her report that the mother remained at risk (albeit a reduced risk) of relapse in her misuse of alcohol[12] and that she requires assistance, support and monitoring if she it to continue as a primary carer for [X].
[12] Family Report, paragraphs 161.
In evidence the family consultant’s view was that the mother was a vulnerable parent and that she had ‘interpersonal vulnerabilities’ with high levels of guilt.
In relation to the father’s long-standing cannabis use, the father reported to the family consultant that he had sustained serious injuries in a cycling accident when he was a teenager and smoked marijuana in to manage his pain levels.
100.The family consultant noted that subpoena material produced by the Department of Family & Community Services indicated that on 21 July 2014 the father participated in urinalysis which returned positive results for cannabis and opiate use. The later may have related to the father’s prescribed pain medication. The urinalysis results were tendered in the mother’s case as Exhibit E.
101.The father told the family consultant that he did not smoke cannabis in the presence of [X] but the family consultant opined that the father impressed ‘as having less insight into the deleterious effects of substance use as it affects parenting than the mother.’[13]
102.In relation to the father’s negative views of the mother and whether he would be able to quarantine these views from [X] the family consultant said:
‘…..his inability to be impartial and sensitive….is low…..not just words but the minutiae of interpersonal verbal and nonverbal signals to ……………’
103.The Family Consultant pointed out that it was wrong to equate frequency of time with quality of time.
104. The evidence of the Family Consultant was that she supported the day time arrangement proposed by the mother. She did not support overnight time occurring in the near future. While she accepted that if the father was living in private accommodation, the risk to [X] posed by other occupants would dissipate, he would still not be protected from psychological harm posed by the father’s negative views of the mother.
105.The father sought to challenge the evidence of the family consultant alleging that it is tainted in some way because she is paid. I reject the father’s proposition.
[13] Family Report, paragraph 160
The Law
I must have regard to Part VII of the Family Law Act1975, and the significant sections are, and to which I must have regard, section 60CA, which provides:
“In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.”
I must then consider, in determining a child’s best interests, the matters set out in section 60CC, and there are two primary considerations:
(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.
There are a number of additional considerations in section 60CC(3) to which I must have regard insofar as they are relevant. I must also have regard to section 60B, which sets out the objects of Part VII and the principles underlying those objects, and I must have regard to section 61DA, which provides for a presumption of equal shared parental responsibility when a parenting order is made, save that the presumption does not apply when there are reasonable grounds to believe there has been abuse of the child or family violence. The presumption may also be rebutted if there is evidence to satisfy the Court that it would not be in the best interests of the child for the child’s parents to have equally shared parental responsibility for the child.
The relevance of the presumption of equal shared parental responsibility, when it does apply or is found to apply, is that the Court is then obliged to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the best interests of the child or reasonably practicable, the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents. (See subsection 65DAA of the Act).
I now wish to consider the primary and additional considerations under section 60CC (2) and 60CC(3) of the Family Law Act 1975.
Primary Considerations: Section 60CC(2)
Section 60CC(2)(a) - the benefit of the child having a meaningful relationship with both of the child’s parents.
I find on the totality of the evidence before me that [X] there is benefit to [X] in having a meaningful relationship with his mother, so long as she is able to be free of the risk of relapse to her alcohol addiction to alcohol.
I also find that there is a benefit to [X] in having a meaningful relationship with his father.
The family consultant noted that [X] appeared to be equally comfortable with all the adults involved in the observation session.[14]
[14] Family Report, paragraph 117
While there is no evidence before me of the father representing a risk of physical abuse to a child, it is the risk of coercive and controlling behaviour which is likely to exist as a consequence of the father’s sense of entitlement as a parent and his extremely negative view of the mother.
It is the risk of psychological harm which I find is significant if the father is to spend time with or communicate with [X]. The tenor of the father’s affidavits in these proceedings and of his oral testimony and submissions makes it inevitable in my view that the father would seek to foist upon [X], his views about the deficiencies of the mother as a parent.
However, the potential adverse effects on the child of being with the father and exposed to his extremely negative views of the mother outweigh the benefit to [X] of spending greater time with the father.
Section 60CC(2)(b) - the need to protect the child from physical and psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
This is clearly the most important consideration for the Court and pursuant to section 60CC(2A), I must give greater weight to section 60CC(2)(b) as against section 60CC(2)(a).
Both parties have made allegations against the other in relation to substance misuse.
The father says that the mother has a long history of parental neglect as a result of her alcohol abuse. The involvement of the Department of Family and Community Services immediately following [X]’s birth, would suggest that both parents had a limited capacity to provide for his needs at that time - mother as a result of her alcohol addiction and the father as a consequence of his cannabis use and problematic drinking. The police were called to the parent’s (omitted) residence on a number of occasions due to domestic disputes which appeared centred around their mutual substance abuse.
Documents were produced under subpoena by NSW Police. A COPS event for 6 July 2012 reads as follows:
‘About 4 PM on Friday, 6 July 2012 police attended (omitted) domestic dispute between the victim Ms Hawthorne person named Mr Kilbee……………. is became evident that the victim was well affected by alcohol. Police questioned her as to the reported incident and the whereabouts of the knives. She stated that there had been a disagreement regarding the level of intoxication of the person named……………… the victim said that the person named was throwing his own belongings around the main bedroom however managed not to do any damage and as he was doing this she left the location and went to a friends house. Police then approach the person named and attempted to obtain his version. He stated he could not recall exactly what had occurred however did remember that there was a disagreement of some sort. Police were unable to get any further information from him due to his level of intoxication.’[15]
[15] Exhibit K
A further COPS event entry for 18 April 2012 reads as follows:
‘About 4:30 PM on Wednesday, 18 April 2012 police attended (omitted) while in response to a radio message regarding a domestic dispute. On attendance the victim Ms Hawthorne met police at the front of the premises. Police observed no injury to Ms Hawthorne. Ms Hawthorne indicated that the incident involved a verbal argument between herself and her boyfriend Mr Kilbee. The accused, Mr Kilbee was also present. Police separated the parties and spoke to Kilbee confirmed Ms Hawthorne’s version. Ms Hawthorne stated they had a verbal argument about Kilbee’s cannabis use, and Kilbee argue with him about alcohol abuse. Both stated there was no violence.’[16]
[16] Exhibit K
More recently the mother, at least, appears to be doing considerably better. The Department of Family and Community Services are not active in [X]’s life. The mother was compliant with all Court Orders for CDT testing and liver function testing and all result were within the normal range.
She completed residential rehabilitation at (omitted). She reported to the family consultant that she believed she had overcome these issues and had been sober for three years. The family consultant opined that the mother’s risk of relapse in her misuse of alcohol remains.
The father has been a long-term user of cannabis. According to the mother, at least the Department of Family and Community Services had recommended that both she and the father attended the alcohol program but the father refused. The father told the family consultant that following a serious motor vehicle accident he had been prescribed morphine base pain medication. After several years he said he ceased the medication and began to use marijuana to manage his pain. The mother alleges that the father has smoked marijuana in the presence of the child, this is denied by the father. The family consultant raised concerns about what she described as the father’s ‘substance tolerance attitudes’ and that he impressed as having ‘less insight into the deleterious effects of substance use as it affects his parenting and the mother.’
The father was ordered to undergo regular urinalysis at the request of the Independent Children’s Lawyer. At the commencement of the hearing, the Independent Children’s Lawyer tendered a schedule of requests for the period 7 March 2016 to 21 November 2017. The father produced a number of the further screens which he said he had completed but had not been on forwarded by his solicitor.[17] The father undertook no testing in 2017 despite four (4) requests by the Independent Children’s Lawyer and of the results provided by the father, the results 2 August 2016 while clear was responsive to a request made almost a month earlier on 11 July 2016 by the Independent Children’s Lawyer. Results dated 12 April 2016, apparently in response to a request made on 17 March 2016 were positive for low levels of cannabis.
[17] Exhibit L
In his submissions, the father said that he was required by the Department of Family and Community Services to give up illicit drugs. He did and went back on his pain medication. The only reason he said that he did not comply with the testing was a financial one – he could not afford to pay for them from his Newstart Allowance.
I am not satisfied that the father has been able to address his problematic alcohol use and his cannabis use. He denies he has a problem and sees no reason to change.
The other issue of concern is the risk to [X] from the father’s attitude and behaviour including his determination to vilify the mother, and compromise her parenting capacity which I will deal with later in these reasons.
I now turn to the additional considerations.
Additional Considerations: Section 60CC(3)
Section 60CC(3)(a) - any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
[X] was only three (3) years old at the time of the family report interviews and four (4) years old at the time of hearing. Even if [X] had expressed a view, given his immaturity I could not attach any significant weight to them.
The family consultant observed that [X] ‘presented with symptoms of anxiety and speech delay.’[18] Immediately following the release of the family report, the mother arranged for [X] to be assessed by a speech pathologist and regular therapy commenced in February 2017. The mother’s evidence was that following a short hiatus recommended by the therapist, [X]’s speech therapy resumed in February 2018.
[18] Family Report, paragraph 141
Section 60CC(3)(b), the nature of the relationship of the child with each of the child's parents
I am satisfied that [X] has a close and loving relationship with both his parents. Notwithstanding the father’s expressed concerns, there was no suggestion that [X] should not continue to live with the mother and the evidence of the family consultant was that [X]’s primary attachment is to his mother.
The mother appears to have made great strides since completing rehabilitation. She has maintained her sobriety living in the community with [X], managing the normal pressures of life and the abnormal pressures associated with the father’s denigrating behaviours. She has returned to work as a (occupation omitted), albeit on a casual basis and has re-connected with her older children.
I am satisfied that [X] enjoys the time he spends with his father.
Section 60CC(3)(c) - the extent to which each of the child’s parent has taken, or failed to take, the opportunity to participate in making decisions about major long- term issues in relation to the child; and to spend time with the child; and to communicate with the child.
There was a significant dispute between the parties as to the time that [X] has spent with the father particularly in recent times. In her affidavit evidence, the mother deposed that the father had never telephoned [X] as provided in the interim orders and on several occasions had returned [X] early.[19]
[19] Mother’s affidavit filed 2 February 2018, paragraphs 71-76
Conversely, the father said in his affidavit material that not only was he spending time in accordance with the current interim orders, he was also spending overnight on a regular basis and went on to say: ‘I say that I am spending more time with [X] than Ms Hawthorne.’[20]
[20] Father’s affidavit filed in Court on 26 February 2018, paragraphs 8-10
Obviously, both statements could not be correct.
In her evidence, the mother conceded that the last time [X] spent overnight time with the father was immediately prior to the hearing on 21 February 2018. The mother said on that occasion, the father’s time and commenced at 8.00am on Wednesday and concluded at 4.00pm on the Thursday afternoon. She described as ‘an exaggeration’ the father’s proposition that [X] was spending more than 50% of his time with the father. Her evidence was since the interim orders were made in November 2016, [X] had spent approximately twelve (12) overnight occasions with the father. She said that on one occasion the father had told her that his brother was visiting from (omitted) and wanted to see [X] and on another a friend’s child at (omitted) was having a birthday party.
Ms O’Rourke for the Independent Children’s Lawyer pointed out to the mother that she had said nothing in her affidavit about facilitating additional spend time with between [X] and his father. The mother conceded that she hadn’t and didn’t know why she had omitted the information. When Ms O’Rourke asked whether she had been fearful it might adversely impact on her application she said ‘very probably’.
It would appear that both parents have taken every opportunity to spend time with [X]. The mother says that the additional time that the father has spent with [X] has been as a consequence of the father’s cajoling, pushing and demanding behaviour. This suggests that the mother has difficulty in standing up for herself or being assertive when it comes to the father and any order made by the Court is at risk of being undermined.
Section 60CC(3)(ca) - the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.
The evidence supports the mother’s proposition that she has borne the greater responsibility for the cost of maintaining [X] and that the father has not paid anything by way of child support since 2016. The mother tendered a Child Support Assessment for [X] for the period 30 July 2016 to 29 October 2017 which shows that the father’s child support liability is nil.[21]
[21] Exhibit I
Nevertheless in cross-examination with Counsel for the mother the father was quite dogmatic to the point of insulting, when challenged that he had paid no child support since 2016. He insisted that child support in the sum of $15 per week had been automatically deducted from his Centrelink benefits since 2014 which based on the assessment was clearly untrue and said:
‘I think you should check you facts there lady.’
At paragraph 31 the father is reported as telling the family consultant that:
‘he had been working in a company which (employer omitted). He advised he left the position when there were ‘hassles with the amount of child support payments’ he was told he owed.’
In oral evidence the father denied that he had said that to the family consultant. He said the latest correspondence he had received from the Child Support Agency showed he did not owe anything. Counsel for the mother made a call for production of that correspondence from the Child Support Agency but the father did not respond.
I am satisfied that the family consultant has accurately reported her conversation with the father as it is consistent with his evidence at hearing. The father clearly resents paying any money to the mother for [X]’s care. For example he criticised the mother:
‘Any money for [X] should be spent on [X] and not her other three children and herself.’
He told the family consultant and confirmed his views in oral evidence that:
‘the mother was using the child ‘as a money pit to get government benefits because she was no longer allowed to work as a (occupation omitted).’
Section 60CC(3)(d) - the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
If I were to accede to the mother’s application and reduce the time the father spends with [X], it would represent a significant change in circumstances for him.
The negative aspects of the father’s time involve the parental friction and conflict at changeovers and the on-going denigration of the mother in the presence of and probably to [X] and the father’s expressions of concern in relation to the mother’s parenting capacity and her historical struggles with alcohol.
The evidence of the mother and the family consultant is that, if the father’s time with [X] was reduced, [X] would likely be distressed in the short-term but would soon adjust to the new arrangements. The mother appears capable of supporting [X] during these changed circumstances.
Section 60CC(3)(e) - the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.
This consideration is not relevant. The mother lives in (omitted) and the father lives in (omitted), a distance of 8 ½ km for 30 minutes driving time.
Section 60CC(3)(f) - the capacity of:
(i) each of the child's parents; and
I am satisfied that the father is capable of caring for [X]’s physical needs. The problem in this case is not the father’s physical care of [X] but his ability to recognise and adequately provide for his emotional and psychological needs and the issue for the Court is whether his on-going contact with his father presents some form of unacceptable risk to [X].
The identified risk is the threat to [X]’s relationship with his primary carer by the father’s attitude and behaviour and his determination to vilify the mother.
Both parents are quite capable of providing for [X]’s physical needs. The father questions the ability of [X] attending preschool two days a week and sees this as the mother’s abrogation of her parental responsibility. The evidence of the family consultant is that [X] appears to be benefiting from his attendance at preschool and so that brings into question the father’s capacity to provide or have insight into [X]’s educational needs.
The mother has shown a strong capacity to provide for [X]’s emotional needs. For the reasons already discussed, the father has shown a significant deficit in his capacity to provide for emotional needs of [X].
(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.
The Paternal grandparents Mr R and Ms J attended the family report interviews in 10 October 2016. They advised the family consultant that they reside in (omitted) in a retirement village. The paternal grandfather suffers from multiple myeloma which is controlled by medication. The paternal grandmother suffered from breast cancer and completed the most recent round of treatment six (6) weeks prior to the interviews. At the time of the interviews they were spending time with [X] once a fortnight.
In relation to the paternal grandparents the family consultant observed:
‘[they] did not present with any overt psychological issues that would appear to be detrimental for the subject child beyond their broad acceptance of the father's behaviour. There may be limitations to the extent of their assistance for the father given their health conditions and age.’
It is noteworthy that the mother indicated to the family consultant that she had confidence in the paternal grandparents.
The paternal grandparents have not filed affidavits in the father's case. The father told the Court that his parents and brother were unavailable to give evidence in the proceedings because his father was extremely ill and his mother and brother were by his hospital bedside.
Section 60CC(3)(g) - 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 Court thinks are relevant
I will deal with consideration under parenting capacity.
Section 60CC(3)(h) - if the child is an Aboriginal child or a Torres Strait Islander child:
This is not relevant.
Section 60CC(3)(i) - the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The father asserts that he is the better parent, that the mother:
· sees [X] as ‘a thing’, a source of income from Centrelink benefits;
· is neglectful, leaving him to wander in the middle of the road such that he has had to call on neighbours and friends to ‘keep an eye’ on [X] for him (and presumably therefore the mother);
· lost the three (3) children from her previous relationship as a result of her problems with alcohol; and
· she has a ‘sociopathic mentality.’
I find that the opposite is true and that the mother has a great deal of insight into her own vulnerabilities and her historical failings as a parent.
I find that the father, while clearly devoted to [X], profoundly lacks insight into how his own behaviour places [X] at risk of emotional and/or psychological harm and interferes with the exercise of his parental responsibilities.
Section 60CC(3)(j) & (k) -any family violence involving the child or a member of the child’s family.
The mother alleges that [X] is at risk of exposure to family violence from the father’s denigration of her in [X]’s presence.
Family violence is defined by section 4AB(1) of the Family Law Act as:
“violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”
Section 4AB(2) of the Act provides some examples of actions that constitute family violence:
·An assault;
·A sexual assault;
·Stalking;
·Repeated derogatory taunts;
·Unreasonably withholding financial support.
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”.
There have been no family violence orders made against either parent.
In the course of her cross-examination of the family consultant and in final submissions, the Independent Children’s Lawyer referenced the paper The Alienated Child: A Reformulation of Parental Alienation Syndrome[22] in which the authors Kelly & Johnson identified the following three (3) organising beliefs that are routinely held by parents who adversely impact a child’s relationship with the other parent:
[22] Joan B Kelly and Janet R Johnston. Family Law Review, Vol 39, No. 3, July 2001 249-266.
a.Their child does not need the other parent in their lives;
b.The parent fervently believes that the other parent is dangerous to the child in some way: violent, physically or sexually abusive, or neglectful:
c.The other parent does not and has never loved or cared about the child.
The Independent Children’s Lawyer submitted that it was clear from the father’ evidence that he believed [X] did not need his mother. The father said in his oral testimony that the mother considered [X] to be a ‘thing’; he described [X]’s exposure to his mother as ‘unfortunate’ and said that ‘for some strange reason [X] likes his mother’.
The Independent Children’s Lawyer submitted that in the eyes of the father, the mother is neglectful of [X] and despite the fact he is neither in nor part of the mother’s household, his evidence was that the mother places [X] in front of the television; that she doesn’t provide stimulation for him; considers him a ‘money pit’ and is incapable of providing for [X]’s basic needs in particular his emotional needs.
Finally, the Independent Children’s Lawyer pointed out that when asked to identify any positive characteristics of the mother, the father struggled to answer and when he eventually did he said that the mother was able to establish a routine for the child.
It is a rare occurrence in this Court that a parent cannot identify any positive characteristics of the other parent. Even if they are critical of aspects of that parent’s lifestyle or parenting, there is generally a concession that the other parent at least loves the child.
The evidence of the family consultant was that [X] presented as an anxious child and as such, may lack the resiliency to withstand the pressures of a parental conflict. It likely that as [X] matures he will become increasingly aware of the father’s negative views of the mother, which will confuse him because it will not be his lived experience of the mother, and will adversely affect his emotional development and his relationship with the mother.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
These proceedings commenced in October 2015. The mother has been legally represented throughout with the benefit of a grant of legal aid. The father has been self-represented since January 2017. Thirty (30) months or so of litigation has no doubt been emotionally exhausting for the parties.
The evidence suggests that the father is not going to change, and that any order which maintains contact between the father and [X], will carry with it the risk of further proceedings because the court can have no confidence that the father will comply with all aspects of its orders.
However, I am satisfied that the Orders proposed by the Independent Children’s Lawyer and contained in her minute are in [X]’s best interests. The only alternative to ensure compliance with Court orders is that the father spend no time with [X], however, the loss to [X] of a relationship with his father is simply too high a price for him to pay because of his father’s poor behaviour.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
I am satisfied that the father will not change his behaviour in anyway and that he will:
· continue to use marijuana;
· continue to be openly insulting and denigrating of the mother;
· continue to make a minimal financial contribution towards [X]’s maintenance in the form of child support; and
· continue to see himself as a victim at the hands of the mother.
Parental Responsibility
The presumption of equal shared parental responsibility in section 61DA of the Family Law Act 1975 does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or another child or family violence.
I am satisfied that the presumption in favour of equal shared parental responsibility is rebutted on the basis that the father has abused the child within the definition of abuse in section 4 of the Act on the basis that he has psychologically harmed [X] due to his fixed, profoundly negative attitude towards the mother and to which [X] has been exposed.
If I am wrong in that regard, I am, however, satisfied that the parties have a highly conflictual relationship with no capacity to communicate in a manner that could promote the interests of [X] such that the presumption should be rebutted under s61DA(2) or s61DA(4).
When I consider all of these issues, I am of the view that the mother should have sole parental responsibility being the parent with whom [X] should primarily live.
With those findings, the requirement to consider equal time or substantial and significant time pursuant to s65DAA is not triggered and the Court must make parenting orders consistent with the findings made in relation to s60C with reference to s60CA and s60B.[23]
[23] Heath & Hemming (No.2) [2011] FamCA 749
With Whom Should the Children Primarily Live?
The mother has been [X]’s primary carer since he was born and has lived primarily with her since separation. In making this finding I am rejecting the father’s assertion that he has been [X]’s primary carer.
In all the circumstances I am satisfied that [X] is settled in the mother’s household and that she has established a stable routine for him. The evidence of the family consultant was that routines in the father’s household are less well-defined. As routine and predictability are important for a child such as [X] who suffers from anxiety, I am satisfied that it is in the best interests of [X] that he live with the mother.
Unacceptable Risk
The concept of “unacceptable risk” is relevant in the present context. The identified risk is the father’s denigration of the mother and the consequential undermining of [X]’s relationship with his primary carer.
In A v A (1998) FLC 92-800, the Full Court considered the concept of “unacceptable risk” in the context of contact proceedings. After referring to M & M and B & B, the Full Court said (at page 84,995):
The task which (the Court) was required to perform was to determine whether the evidence was such as to establish that there would be an unacceptable risk to the children if they were to have contact or supervised contact with the husband…
The term identified by the High Court in M & M as “unacceptable risk” provides the touchstone for such an inquiry. Usually they are sexual abuse or similar cases, but this approach includes cases of the type identified here which involved the assessment of the risk of future physical and/or emotional harm…
… the primary question which (the Court) should have addressed was, looking at the whole of the evidence, whether contact (or at least contact which was not strictly supervised) might expose the children to an unacceptable risk because, although it is almost impossible to quantify in any precise way, it may place those children in circumstances of potential jeopardy in the future in their father’s care.
The nexus between the issue of (unacceptable) risk and the effect on the mother, if time with the father is to be ordered, was clarified by the Full Court in A v A (1998) FLC 92-800 at page 84, 996:
The first inquiry is whether there is objectively an unacceptable risk. If there is, the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that party’s capacity as the residence parent and so impinge on the best interests of the children. The Court then needs to take steps proportionate to that circumstance.
The oral testimony of the family consultant was that alternate Saturdays was adequate to meet the needs of [X]'s relationship with his father and to protect him from harm. She described the mother as a ‘vulnerable parent’ with ‘intrapersonal vulnerabilities’ and ‘high levels of guilt.’ The family consultant was concerned about the mother’s level of anxiety if she was under pressure to accede to the father's demands for extra time with [X].
The family consultant went on to say that if [X] were to spend every second Saturday with his father, there would be less opportunity for him to be exposed to his father’s poor views of the mother noting that denigration would be very stressful for [X]. She said the father could moderate his behaviour for shorter rather than longer periods. If the time was on a Sunday, the family consultant was of the view that it would enable [X] to be part of the church community which the mother considers a positive environment.
It is not the mother’s application that [X] spend no time with the father, rather she says that because of her vulnerabilities, it is important that, given she is [X]’s primary attachment figure, her parenting capacity is not compromised by stress associated with the father’s denigrating behaviour. She acknowledges that [X] benefits from his relationship with the father and says that her proposal for time will facilitate that relationship.
It is always possible that the father may be able to change his behaviour but unlikely it could be achieved without interventions and therapeutic support. The father does not believe that there are any issues that need addressing. His evidence was that he was the more capable parent, that [X] prefers him over the mother though he recognised that [X] had an attachment to the mother and that as he grows up [X] will find out for himself that his mother doesn’t love him. He told the Independent Children’s Lawyer in cross-examination that if [X] asks him, he would be honest and tell him what a poor mother he has.
In submission the father conceded that he had ‘ill feelings’ towards the mother but would not let them surface in the presence of [X]. He said he was ‘good at playing poker’.
I reject the father’s submissions that he is able to manage his ‘ill feelings’ towards the mother so that [X] is not impacted, however, I am satisfied having considered the findings made in respect to the primary and additional considerations, the father does not present as an unacceptable risk to [X] as it is a risk that may be appropriately managed in other ways.
The risk posed by the father in relation to abusing or denigrating the mother at changeovers may be managed by use of a public venue such as (omitted) Shopping Centre.
The risk posed by the father of denigrating the mother to [X] or in his presence once [X] is in his care is a more difficult proposition. The father’s behaviour could not be monitored or controlled unless his time was supervised.
Any order for supervision would have to be made on a long term basis given the father with his strongly held views and failure to accept any fault. Such an order is not in [X]’s best interest and indeed is not sought by any of the parties, nor recommended by the family consultant.
The only other option available to the Court, that is by no means ideal, is to reduce the time the father spends with [X] and thereby reduce the [X]’s exposure to the father’s negative views of his mother.
I am satisfied that unsupervised day time periods is a proper balance between the competing considerations under section 60CC (2)(a) & (b).
The frequency of the father’s time with the child
[X] is currently spending time with his father each Saturday from 9am until 5pm and overnight each Tuesday from 3pm until 3pm Wednesday. The mother proposes an order which involves a significant reduction in that time to each alternate Saturday from 10am to 4pm and special occasions including Christmas Day and Father’s Day.
Such a reduction in the time could cause difficulties for [X]. I have already found that [X] has a loving relationship with his father. He is used to seeing him on a regular basis. Not seeing the father may offer some relief to the children from the father’s persistent negativity towards and denigration of the mother but it might also cause [X] grief for the loss of relationship.
The mother acknowledged the possibility in her oral evidence and says, there will be a period of adjustment but she will be able to manage [X]’s ‘sideways’ behaviour. Her evidence was that she would do those by: attempting to explain in an age-appropriate way why the reduction in time has occurred; and setting up alternative activities for those days he would normally be with his father;
The evidence of the family consultant was that she would recommend the daytime arrangement as proposed by the mother rather than the overnight time that is currently occurring. She went on to say that if the father secured private accommodation, the risk posed by other occupants would dissipate but it would not protect [X] from the psychological harm in terms of the father's overly negative views of the mother. At paragraph 169 of her report she writes:
'The child's time spent with the father should be conservatively approached at this point in time. Overnight visits should be limited until the child's anxiety is successfully addressed. It may be that with successful intervention overnight time spent with the father could be commenced when the child has entered school and ideally gradually increased as the child develops confidence. In proposing this it is cautioned that the child is likely to be vulnerable to aggravations in anxiety if exposed to parental conflict.'
Conclusion
Having regard to the respective applications and submissions and in light of the available evidence and relevant statutory provisions, I am satisfied that the orders are ones that are appropriate and in [X]’s best interests.
I certify that the preceding two hundred and three (203) paragraphs are a true copy of the reasons for judgment of Judge Costigan
Date: 16 May 2018
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