Knowles and Hoban

[2014] FCCA 2749

FEDERAL CIRCUIT COURT OF AUSTRALIA

KNOWLES & HOBAN [2014] FCCA 2749

Catchwords:
FAMILY LAW – Parenting – nine year old child – non communicative and non-cooperative parents – parental responsibility – family violence – preferred living arrangements – child to live with mother – day-time only with the father.

Legislation:

Family Law Act 1975

Champness & Hanson [2009] FamCAFC
Marvel & Marvel (No.2) [2010] FamCAFC 101
McCall & Clark (2009) FLC 93-405
Re F - Litigants in Person Guidelines (2001) FLC 93-072

Applicant: MR KNOWLES

Respondent: MR HOBAN

File Number: MLC 4342 of 2008

Judgment of: Judge McGuire

Hearing date: 24 November 2014

Date of Last Submission: 24 November 2014

Delivered at: Melbourne

Delivered on: 11 December 2014

REPRESENTATION

Solicitors for the Applicant: In person

Counsel for the Respondent: Mr Nicholson

Solicitors for the Respondent: SMR Legal, Shepparton

Counsel for the Independent Children's Lawyer: Ms Howe

Solicitors for the Independent Children's Lawyer: Joliman Lawyers, Echuca

ORDERS

1. That all extant orders in respect of the child X born (omitted) 2005 (“X”) be discharged.

2. That the mother have sole parental responsibility for X provided that the mother keep the father advised at all times of matters in respect of X’s education and medical issues and that the father, at his own expense, be entitled to receive copies of all correspondence from X’s school and to attend all events at the school normally available to parents.

3. That X live with the mother.

4. That X spend time and communicate with her father as follows:

   (a)Each Sunday between 10.00a.m and 5.00p.m;

   (b)By telephone at any reasonable time; and

   (c)At such other times as agreed between the parties from time to time in writing.

5. That for the purpose of his time with X, the father collect X from and return her to the mother’s home or otherwise as agreed between the parties in writing.

6. That within 42 days of the date of these orders the father enrol in and then complete as directed a recognised men’s behavioural change or anger management programme and provide the mother with a copy of the certificate of completion.

7. That the father be and is hereby restrained from consuming any illicit drug during any period of time for X with him and for twelve (12) hours prior to X coming into his care.

8. That the father be and is hereby restrained from knowingly bringing X into contact with any person using or under the influence of any illicit drug and/or from allowing X to be exposed to any illicit drug or drug paraphernalia.

9. That the father be and is hereby restrained from consuming alcohol during any period that X is in his care or for twelve (12) hours prior to X coming into his care.

IT IS NOTED that publication of this judgment under the pseudonym Knowles & Hoban is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 4342 of 2008

MR KNOWLES

Applicant

And

MS HOBAN

Respondent

REASONS FOR JUDGMENT

1. These proceedings concern the parties' one child, X, born (omitted) 2005 (aged nine years). 

2. The father is the applicant.  He proposes that X live with him but that the parties have equal shared parental responsibility (subject to his understanding of the concept).  After some prevarication Mr Knowles confirmed that he would concede X spending each second weekend and time during school holidays with the mother.

3. The mother, Ms Hoban, also seeks primary care of X.  She argues that she should have sole parental responsibility.  Her responsive documents suggest a proposal that X spend each second weekend and time during school holidays with the father.  She adds a condition of the father successfully completing an anger management course.  However, by the time of her counsel's final address, Ms Hoban was arguing that X should spend daytime only on either a Saturday or a Sunday weekly with the father with the details to be "as agreed" between the parties.  She seeks a condition that a third party adult be present during such periods until such time as the father completes an anger management course.  She seeks injunctive orders in respect of alcohol and drugs.

4. The Court had the benefit of a recent appointment of an independent children's lawyer in this matter.  Counsel, in her final address, initially proposed orders whereby X live with the mother and that she have sole parental responsibility.  Interestingly, given the state of the evidence, counsel for the independent children's lawyer in her final address initially proposed that X spend each second weekend with the father unconditionally and unlimited.  When challenged by myself as to whether such orders sat comfortably with the thrust of the evidence, counsel took instructions and returned with a proposal that X spend time with the father being "daytime only on either a Saturday or a Sunday between 10am and 5pm, with another adult in attendance and as agreed between the parties."  The independent children's lawyer seeks conditions that the father complete an anger management course and a Cooperative Parenting Program and thereafter the requirements for the third party presence be removed.  Counsel also argued for time on special days such as Christmas Day and Father's Day.  She also proposes injunctive orders in respect of the consumption of alcohol and illicit drugs.

Background

1. The parents commenced a relationship in 2001.  At that time the father was 22 years old and the mother was 17 years old.  X was born in 2005.  The parents separated in 2007 when X was two years old.  X initially lived with her father and the mother has historically claimed that she has been "controlled" by the father in respect of her relationship with X.

2. Consent orders were made in December 2008 providing that X live with the father and spend time with the mother on five nights per fortnight plus for half of school holidays.  Again, Ms Hoban deposes that she was coerced into the consent orders.  There was an additional injunction on Ms Hoban not leaving X alone with her then‑partner and mutual injunctive orders in respect of the use of drugs and alcohol.  These orders were apparently varied in 2011 when X commenced school whereby she spend time with the mother weekly between Friday and Tuesday and with the father between Tuesday and Friday.

3. A relative calmness was enjoyed by X and the parents whilst they lived close by each other in (omitted) in Northern Victoria.  That calm was disrupted in 2013 when the father went to live in (omitted) and the mother to live in (omitted).  This put a distance of about one hour of travel between them.  Not surprisingly, given the lack of communication and cooperation between these parents, X continued to attend the (omitted) Primary School and enjoy the same regime of time between her parents but despite neither parent living in (omitted).

4. The travel for the child, however, became onerous until Mr Knowles unilaterally changed X's school to one in (omitted) in October 2013.  Dispute then arose between the parents and for a period X attended two primary schools.  This situation speaks volumes as to the level of cooperation and prioritisation demonstrated by these two parents. From the commencement of the school year in 2014 X attended the (omitted) School and was with her father from Mondays to Fridays and spent each weekend with her mother.

5. Reports and allegations of verbal abuse, alcohol abuse, drug use and poor care of X permeate the mother's material.  She over-held X for a period in March 2014 with a notification to the Department of Human Services.  The father successfully obtained a recovery order from the State Court.  His affidavit material likewise emphasises his concerns as to the mother's parenting capacity and her violent partner.  These proceedings commenced in April 2014.

6. On 12 June 2014 interim orders were made in this Court suspending the orders from 2008 and providing for X to live with the mother between Friday and Tuesday of each week and with the father between Tuesday and Friday.  A family report was ordered.

7. The mother continues to live in (omitted).  She has three younger children aged four and three years old, and four months old.  She works part time in a (omitted) business.  She is separated from her younger children's father.  Mr Knowles lives in a share home.  His housemate owns the property.  Mr Knowles works casually as a (omitted) with his brother.  There is no evidence that he is currently re-partnered.

8. There is some evidence before me of an incident occurring after the interim proceedings in this Court in Shepparton.  The father concedes that he has faced charges of possession of methamphetamine, a threat to kill his own mother, and possession of an illegal weapon.  Although his evidence was vague in the extreme he seems to believe that the matters have been dealt with by pleas of guilty although he apparently was not present in court.  He said that he was awaiting advice as to the penalties.  By way of comment, the charges, prima facie, appear serious and one might reasonably expect them to be heard in a superior court and certainly not in the absence of the accused.  Nevertheless I feel obliged to accept Mr Knowles’s evidence volunteered in cross-examination that he either has or intends to enter pleas of guilty. No evidence to the contrary (or in confirmation) was forthcoming from the Independent Children’s Lawyer or from the mother.

The Evidence

1. The applicant father represented himself in these proceedings.  He arrived at court almost two hours late.  His explanation for doing so remains uncorroborated.  He had not filed a trial affidavit.  Great care was taken to explain the procedure of the trial to Mr Knowles[1]. Mr Knowles was invited to seek the assistance of the Court at any time in respect of the procedure. 

   [1] Re F - Litigants in Person Guidelines (2001) FLC 93-072

2. The nature and purpose of cross‑examination as a means of testing the evidence was explained to Mr Knowles.  Nevertheless, even armed with this information, Mr Knowles chose not to give any oral evidence under oath in support of his application.  He elected not to cross-examine the mother or any of her witnesses.  He did not cause any affidavits to be read into evidence in support of his case.  The result, of course, is that the mother's evidence and that of her witnesses is unchallenged and the Court should give it appropriate weight.

3. Conversely, there is no direct evidence before the Court directly in support of the father's case although the family report is enlightening to a degree.  Nevertheless, (and perhaps surprisingly) counsel for the mother elected to cross-examine Mr Knowles and this resulted in some evidence supportive of his position albeit if only elicited in cross-examination.  Similarly, he was cross-examined briefly by counsel for the independent children's lawyer.

4. Given the stance taken by Mr Knowles, I considered whether he was able to conduct the litigation without legal assistance.  Although presenting as consistently agitated, argumentative and, at times, demonstrably angry, Mr Knowles appeared to have an understanding of my explanation of the procedure and of the role of the Court and the evidence adduced.  My observations were generally of an anxious and angry personality and of a man exhibiting feelings of injustice.  I was satisfied, however, that he was able to understand and conduct his case and that he made a considered choice, for reasons best known to him, not to give or adduce evidence or to challenge the mother's evidence.

5. The mother relied on her two affidavits filed 21 July and 6 November 2014.  She also adduced evidence from the father's own mother whose affidavit was sworn 8 April 2014 and from her own mother who provided two affidavits sworn 10 April and 10 November 2014.  The mother adduced evidence in an affidavit of Dr S sworn 23 July 2014.  Dr S is a clinical and forensic psychologist who deposes to having seen X on two occasions at the initiative of the mother.  Dr S observed X to be "securely attached to her mother".  Her evidence was otherwise unremarkable and of limited assistance.

6. The father's own mother gave an affidavit in support of Ms Hoban.  She deposed that Mr Knowles was itinerant for a period in 2013 living in "motels, at a hostel on (omitted) in (omitted), at the (omitted) Caravan Park in (omitted) or in Mr Knowles’ car".  She observed that her son did not maintain routine for X and would abuse alcohol whilst X was in his care including drink/driving with X in the car.  She deposes that she has seen her son angry to the stage of rage at X when she has made a small misdemeanour.  Ms J deposes to altercations with her son in respect of her concerns as to his parenting of X.  She deposes to a particular of her son's anger management issues in January of this year during a family camping trip, and when he verbally abused X, threatening her directly, "I'll knock your head off your shoulders.  I did it last week.  I will do again."  The maternal grandmother deposes that family were obliged to intervene on X's behalf and that X was then reluctant to go with her father.  Ms J was not challenged as to this evidence.

7. The maternal grandmother, Ms J, provided two affidavits.  She deposes as to concerns of family violence in the relationship between the parents.  She says that she is supportive of her daughter's application and generally of her care of X.  Ms J says that X has confided in her that she is "scared of my dad", and that he yells at her, drinks a lot of beer, that the police attend his home, and that she does not wish to return to his home but prefers to live with the mother.

8. Ms J deposes to a particular event of 21 February 2014 when she was assisting with a changeover.  She says that she observed X arrive with her father in a vehicle being driven by a third person.  The driver was drinking alcohol. 

9. The father was in the passenger seat also drinking alcohol.  Ms J deposes to support for the mother's case from various members of the father's own family.  The maternal grandmother says that her concerns have been such that she has felt obliged to contact (omitted) Police and the Department of Human Services.  Ms J’s evidence was not challenged by the father.

10. The mother's affidavit material is generally negative of the father.  She deposes as to his angry temperament, alcohol abuse, and "his history of drug use".  She says that the father has consistently delivered X late to school on Monday mornings after X's time with him.  She says that X is consistently left to her own devices when in the father's care.  The mother's affidavits make it clear that communication, trust and cooperation between the parties are non-existent. 

11. The mother says that her own relationship with Mr Knowles was "characterised by domestic violence" including physical violence.  She says that she was subjected to demeaning verbal abuse.  She deposes that Mr Knowles "smoked marijuana most days and also used other illicit drugs.  Toward the end of the relationship, he was using speed and/or ice weekly."  Ms Hoban deposes that her own relationship with X was "dictated" by the father and that she entered into consent orders in 2008 under financial and emotional duress.  Ms Hoban deposes that X reports regular absences from school when in the father's care.

12. Ms Hoban says her concerns as to X's welfare escalated in early 2014.  She says that she spoke to (omitted) Police and the Department of Human Services.  She determined to hold X over and this resulted in Mr Knowles obtaining a recovery order from the State Court.  Ms Hoban's affidavit material alleges that the father has overly involved X in these proceedings and particularises instances of emotional blackmail. 

Family Report

1. The Court has had the benefit of a comprehensive family report from Ms B who has qualifications as a psychologist and is well experienced in assisting these courts in children's matters.  Ms B's report is dated 4 August 2014 and prepared after interviews with the parties, the child and the maternal grandmother and stepfather in July 2014.  Ms B was required for cross-examination by Mr Knowles only.  He asked her only one question being whether she considered that X had been influenced by the mother or others in her statements to Ms B that she preferred to live with Ms Hoban.  Ms B responded that she did not think this to be the case.

2. Ms B confirmed to the independent children's lawyer that her recommendation (perhaps differing from to that in her report) was that X spend each alternate weekend with the father and "one evening each week after school" together with one week during school holidays but conditional upon Mr Knowles being able to commit to X's extra‑curricular, social and family events.  She recommended that Mr Knowles attend parenting education and Men's Behaviour Change courses. 

3. Ms B's report of her observations of the parties is enlightening but generally in accordance with my observations of Mr Knowles who, of course, is the only parent I had the advantage of seeing in the witness box.  Mr Knowles confirmed to the family reporter that he is estranged from his own mother but that he has a good relationship with his older brother and his family.  He confirmed that X is often absent from school on a Monday and that he is generally unhappy with the current arrangements for X's care.  

4. Ms Hoban reported that X is happy in her home with her mother and has a close relationship with her siblings and grandparents.  Ms B noted the father's denials of the allegations of physical violence but also reports him as being "at times aggressive towards me and reactive about the requirements".  She says that Mr Knowles became increasingly agitated during the interview process and verbally abusive of her.  Significantly, Ms B reports Mr Knowles' lack of insight in placing emotional pressure on X during the interviews and observations.

5. At paragraph 49 of her report, Ms B says:

   I asked Mr Knowles to explain some statements about friends' availability and the consequences for arrangements about X.  Mr Knowles spoke even louder saying "I told you!  Don't you understand?  Are you dumb, too?"

   X sat, looking increasingly anxious.  Mr Knowles turned to X and said: Sorry, Chicken.  You'll have to come back tonight because I've only seen you for two days...  You won't be able to go riding if you're going back to (omitted).  It's all off now!

   X sat motionless in the chair and looked anxiously at Mr Knowles.  She then moved to the whiteboard and said, "I'll draw your car."  Ms Knowles sat and looked, and then asked about her drawing.

6. And at paragraph 51 of the report, Ms B notes:

   In the interactions noted above, Mr Knowles demonstrated limited insight about X's needs and seemed more preoccupied with his own.  He was reactive and derogatory, not only towards me but also to the maternal grandmother, and about Ms Hoban in X's presence.  Mr Knowles did not appear to appreciate X's demonstrable anxiety, and instead proceeded to emphasise to her that his plans for their time had been disrupted.

7. Ms B observed the mother as calm, rational and coherent with a focus on X's welfare and needs. 

8. X was interviewed by Ms B and also observed with each parent.  At paragraph 58, Ms B reports:

   X was responsive and notably affectionate towards Ms Hoban who was equally responsive.  X was notably less effusive with Mr Knowles, particularly following his outbursts towards me at the commencement of the observation.  X presented as anxiously trying to engage Mr Knowles.

9. X was not yet nine years of age at the time of the interviews.  She was, however, able to express her views and preferences as to her living arrangements to Ms B albeit in a guarded manner.  At paragraphs 59 and 60 of the report, Ms B notes:

   In her individual interview, X asked that her father would not know of her responses.  She said, inter alia, "I don't want Dad to know...  He might get angry.  He yells and sends me to my room."

   X said that she "really wants to live with mum, but I told Dad that I wanted to live with him because I didn't want to tell him that I want to live with Mum."  Inter alia, X said, "I just want to live with my Mum and see Dad every weekend.  I want to see the kids more...  Mum doesn't smack or get angry when I don't listen to hear [sic] her properly...  Dad gets angry."

1. At paragraph 79, Ms B reports:

   X then said, again with some anxiety, that "I told Dad that I wanted to live with him because I don't want to tell him that I want to live with Mum."

2. Ms B notes X regularly reporting instances of her father's anger.

3. Ms B observed an easy and comfortable relationship between X and the mother.  She reports Mr Knowles having difficulty focusing on X, and that X (after some heated interaction between the father and Ms B) "sat motionless, looking anxious and then moved towards the whiteboard saying, 'I'll draw your car.'"  Ms B's observations were generally of an anxious atmosphere when with X and the father.  At paragraph 101, Ms B reports:

   Mr Knowles did not demonstrate consistently competent parenting of X.  While he was responsive at times, and sometimes warmly engaged in her activities, Mr Knowles seemed preoccupied with the arrangements for X after the report appointment.  He did not initiate activities and, instead, responded to X's requests for his involvement in her drawing.  X was anxious during Mr Knowles' interactions with me and did not initiate physical contact with him.  Mr Knowles did not initiate contact with X.  She demonstrates an anxious and somewhat avoidant attachment relationship with Ms Knowles.

Relevant Law

1. Section 60CA of the Family Law Act 1975, ("the Act"), stipulates that I am to have X's best interests as my paramount consideration. I determine the best interests of a child by reference to section 60B and section 60CC(2) and (3) of the Act. Section 60B sets out the objects and principles of the part of the Act dealing with children as follows:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 60CC(2) and (3) sets out a number of mandatory considerations for the Court to reference the proposals of the parties and the probative evidence. 

3. Section 61DA of the Act provides a presumption that parents will have equal shared parental responsibility for a child. Parental responsibility, at section 61B, means "all the duties, powers, responsibilities and authority which, by law, parents have in relation to children".

4. The presumption of equal shared parental responsibility does not, however, apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)Abuse of the child or another child who, at the time, was a member of the parent's family; or

   (b)     Family violence.

5. Alternatively, the presumption may be rebutted by evidence satisfying the Court that it would not be in the child's best interests for the parents to exercise equal shared parental responsibility.

6. The mother seeks an order that she have sole parental responsibility for X. My understanding of the father's final submissions is that he prefers an order for equal shared parental responsibility. Significantly if the presumption at section 61DA applies and is not rebutted then the Court is obliged to enter into a pathway of consideration of options for the parenting of X. In this sense, the Court is not simply bound by a choice between the proposals of the parties but is, itself, obligated to make orders which it considers, on the balance of the evidence, provide for the best interests of the child.

7. Firstly, the Court must consider whether X living in an equal time arrangement between her parents is both in her best interests and reasonably practicable.  Leaving aside for the moment the discussion as to "best interests", the parties seem to agree that such an arrangement is not reasonably practicable by reason of the travel distance and logistics of school attendance despite there being such an arrangement on foot previously.  If the court determines that equal time between the parents is not both in the child's best interests and reasonably practicable then it turns its mind to a consideration of whether the child living "substantial and significant time" with each parent is in the child's best interests and reasonably practicable[2] .

   [2] section 65DAA(2) of the Act

8. The Act assists in respect of determining reasonable practicability as follows[3]:

   [3] Section 65DAA(5)

   Reasonable practicality

   (5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:

   (a) how far apart the parents live from each other; and

   (b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d) the impact that an arrangement of that kind would have on the child; and

   (e) such other matters as the court considers relevant.

   Note: Paragraph (c) reference to future capacity--the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.

9. "Substantial and significant time" is defined in the Act[4] as follows:

   For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

   (a)     The time the child spends with the parent includes both:

   [4] section 65DAA(3)

   (i)      days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends or holidays; and

   (b)The time that the child spends with the parent allows the parent to be involved in:

   (i)     the child's daily routine; and

   (ii)occasions and events that are of particular significance to the child; and

   (c)The time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent. 

10. The proposals of each of the parties do not strictly sit with the above definition, although the recommendation of Ms B might well do so.  Notably, Ms B was not cross-examined by either party or counsel for the independent children's lawyer as to her recommendation and the practical aspects of X spending nights during the school week with the non‑primary carer.

Section 60CC Factors

Section 60CC(2)(a) - The benefit to X of having a meaningful relationship with both of her parents.

1. This is a primary consideration, although one that is not determinative of the orders I make.  As the Full Court noted in Champness & Hanson[5]

   The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial judge to make the orders most likely to ensure the child had a “meaningful relationship” with both parents.  This is an incorrect assumption.  The Court’s obligation is to make the orders most likely to promote the child’s best interests.  In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider "the benefit to the child" of having a meaningful relationship with both parents.  Even if such a benefit is established, it must still be weighed along with all of the other relevant factors.

   [5] [2009] FamCAFC 96 at 103

2. In considering the concept of "a meaningful relationship", the Full Court has determined that the notion is both qualitative and prospective[6]. That is, the Court is concerned with the quality of the relationship between child and parents rather than simply the distribution of the child's time in the form of weeks, days and hours.  Similarly, the Court is to make prospective orders which benefit a child into the future.  In doing so, obviously, the Court is to consider the current state and nature of the relationship between child and parent.

   [6] McCall & Clark (2009) FLC 93-405

3. The family report suggests that X has an attachment with each of her parents.  The observations of Ms B are that the more comfortable and dependant attachment for X is with her mother.

4. I am satisfied that the proposals of each of the parties would serve to maintain X's relationship with the other parent given the history of those relationships and X's age and maturity.

Section 60CC(2)(b) - The need to protect X from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence.

1. A recent amendment to the Act obligates the Court to give greater weight to this consideration relative to the other factors set out in section 60CC. The mother's unchallenged evidence is that the father was violent towards her during the relationship. She speaks of his anger management difficulties, perhaps exacerbated by use of alcohol and drugs. She says that he was physically violent to her. The paternal grandmother's unchallenged evidence is of a threat of physical violence by the father to X and indicating that he has, in fact, previously been violent to the child. Mr Knowles volunteered in the witness box that he has or intends to enter a plea to a charge of threat to kill. Ms B's report gives strong indications of anger management issues for the father. X's discussions with Ms B corroborates the evidence of the mother and both grandmothers that X is fearful of her father's angry temperament.

2. As mentioned above, the father elected not to challenge the evidence of the mother or her witnesses or Ms B in respect of these allegations.  I have had the benefit of my own observations of Mr Knowles in the witness box.  He was at times aggressive in his responses and, in my view, showed a propensity to a "short fuse".

3. I am satisfied that there is ample evidence before me, all unchallenged, to conclude, on the balance of probabilities, that Mr Knowles has been physically and verbally violent and abusive in his relationship with the mother.  I am satisfied that X is fearful of him and his responses should she act or say anything contrary to his expectations.  I am satisfied, on the unchallenged evidence of the paternal grandmother, that he has been violent and threatening to X.

Section 60CC(3)(a) - Any views expressed by X and any factors (such as her maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.

1. X's views are best and most objectively set out in the family report.  It is clear that she prefers to live with her mother.  It is equally clear that she has difficulty in expressing those views to her father for fear of his response or retaliation.  X is just nine years of age.  The tenor of the family report, however, convinces me that I should place some weight on her views given her ability to explain and rationalise the views to Ms B.

Section 60CC(3)(b) - The nature of the relationship of X with each of the parents and other persons (including any grandparent or other relative of the child).

1. The evidence of Ms B is of X having an easy, attached and dependent relationship with her mother.  The mother's evidence, that of the paternal grandmother and of Ms B agrees that X has an attachment and strong relationship with her three young siblings in the mother's household, and that she very much wishes to pursue that relationship.  Equally there is no evidence contrary to X having a strong relationship with the maternal extended family.

2. X's relationship with the paternal grandmother is limited by the estrangement between Mr Knowles and his own mother.  It is clear that Mr Knowles blames his mother to a large degree for the difficulties he has now endured in these courts.  The best evidence, however, is that the paternal grandmother's relationship with X would be facilitated and encouraged by the mother but not likely by the father. 

3. Mr Knowles volunteers in his cross-examination that X has a good relationship with his brother and the brother's family.  There is no evidence to the contrary.  X's relationship with her father is problematic.  I am satisfied that she loves her father and wishes to have a continuing relationship with him.  It seems, however, that the relationship is also based on fear and reluctance by X because of her uncertainty as to her father's responses. 

Section 60CC(3)(c) - The extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in respect of X; to spend time with X; to communicate with X; and the extent to which each of the child's parents has failed, or failed to fulfil, the parent's obligations to maintain the child.

1. These parents have endeavoured to negotiate their own relationship difficulties through regimes of time with X.  On occasions this has resulted in onerous travel and inconvenience for X and simply to relieve stress and argument between the parents themselves.

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 the parents; or any other child, or other person (including any grandparent or other relatives of the child), with whom he or she has been living.

1. Albeit in a disruptive sense, X has lived regularly between each of her parents.  Nevertheless, this has occurred within an environment of mistrust, non-communication, mutual allegation, non-cooperation and suspicion between the parents.  I am satisfied that any change for X which gives her a stable home base will be of benefit to her.

Section 60CC(3)(e) - The practical difficulty and expense of X 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.

1. The parties live approximately one hour apart between (omitted) and (omitted).  Such a distance is not prohibitive of X maintaining a relationship with the non-primary parent and in this sense I am satisfied that both parties proposals are reasonably practicable.

Section 60CC(3)(f) - The capacity of each of X's parents to provide for her needs, including emotional and intellectual needs.

1. The mother's capacity is essentially unchallenged.  The father asked for no affidavits to be read into evidence.  He did not cross-examine the mother.  Ms B's report is generally complimentary of the mother's capacity and insight.  The same cannot be said of the father.  The family report is demonstrative of a lack of insight and of general self-interest by the father in his parenting responsibilities.  Examples are given of him being emotionally manipulative of X. 

2. Mr Knowles’ own evidence is corroborated by X's statements that there are regular adult male visitors to his home and within an environment of alcohol and drug use.  X reports of various men moving in or visiting the home, and of men "sitting on the couch all day watching television".  Mr Knowles has, of course, indicated a plea of guilty to charges of possession of methamphetamine found in that home.  His explanation attempting to mitigate his culpability offered only in cross-examination was unconvincing. Any suggestion of injunctive orders to prevent such activities and visitors to the home is not available to the Court given that Mr Knowles' housemate owns the home and that Mr Knowles lives there only as a tenant on that gentleman’s goodwill.

3. Generally on the evidence before me, I am not satisfied that the accommodation provided by Mr Knowles is as suitable as X’s primary home.  I am also satisfied that Mr Knowles' anger management issues compromise his capacity to care for X.  The reasons for such conclusion are set out above.  I also have concern, on the evidence, as to Mr Knowles' insight into the requirements of parenting.  The evidence from the family report in particular suggests self-interest and a lack of understanding and insight into the emotional needs of this young child.

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.

1. X is a nine year old female.  I harbour real concerns as to the environment provided to her by her father.  He lives in a share house frequented by various adult males.  His own admissions can only lead me to conclude that there is regular alcohol and drug use within that home. Any control of his home environment by Mr Knowles is limited by his status as a tenant of the resident owner.

Section 60CC(3)(h) - If the child is an Aboriginal child or a Torres Strait Islander child.

1. 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.

1. I am satisfied, on the unchallenged evidence of the mother, that she provides an objective and insightful role model for X.  Her unchallenged evidence is that she has felt "controlled" and "dictated to" by Mr Knowles in entering the previous parenting arrangements.  My observations of Mr Knowles in the witness box were of an assertive and entitled individual which I see as corroborating the mother's unchallenged evidence.

Section 60CC(3)(j) and (k) - Any family violence involving the child or a member of the child's family and/or family violence orders.

1. Family violence, within the broad definition in the Act, features significantly in this matter. I have made findings on the evidence above.

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 X.

1. It is not the task or ambition of these courts to make orders which are ideal or optimum in their result or effect.  To do so would be unrealistic.  Rather the Court endeavours to make orders which, on balance of the evidence, are in a child's best interests.  It then beholds the parents, whether or not they are satisfied with those orders, to comply with them and move forward ultimately in the child's best interests.

Findings, Discussion and Conclusions

1. I find that X has an attached relationship with both her parents. I am satisfied, however, that her primary and dependent attachment is with her mother and that her relationship with her father is characterised by his unpredictable and angry behaviour and lack of insight. I am satisfied that X expresses a view consistent with living with her mother but maintaining a relationship with her father. I am satisfied that Mr Knowles has perpetrated family violence within the broad definition in the Family Law Act on both the mother and X. I am satisfied that he has significant and unresolved anger management issues. I am not satisfied that he offers appropriate accommodation for X and that his capacity to be her primary parent is compromised accordingly.

1. I am satisfied that the mother has the capacity to attend to X's physical, intellectual and emotional needs.  I do not have the same level of satisfaction in respect of the father.  His behaviour and, hence, his capacity is impacted by his lack of insight into his daughter's needs or focus on those needs.  His behaviour is compromised by his use of alcohol and illicit substances and his criminal convictions.  His propensity to violence and anger management issues also compromise his behaviour.  I am not satisfied that the father can provide a proper or suitable physical environment for X for any time of long duration or for overnight time. I am satisfied that it is the mother who best offers X relationships with siblings and extended family including the important relationship with the paternal grandmother.

2. In all of the circumstances, and on a balancing of the evidence, I am satisfied that X's best interests are served by her living primarily with her mother.  I am also satisfied that the presumption of equal shared parental responsibility does not apply by reason of my findings as to family violence.  I am satisfied that it is in X's best interests for her mother to exercise sole parental responsibility but with provision for notification of the father in respect of education and medical matters.

3. The Full Court in Marvel & Marvel (No. 2)[7] observed:

   It appears to us that as a parenting order, including an order for equal shared parental responsibility, must be in the best interests of a child, a court may, in the exercise of its discretion, find it is inappropriate to make such an order in certain circumstances.  This could occur where, although there is no family violence or child abuse, the conflict or lack of effective communication between the parents is such that to properly exercise their equal shared parental responsibility, they would be unable to comply with s 65DAC by consulting and making a genuine effort to reach agreement about major long-term issues affecting their child or children.  In other words, in these circumstances an order for equal shared parental responsibility would inevitably lead to further conflict and perhaps contravention applications, which conflict and/or ongoing litigation could be adverse to the child’s best interests.

   [7] [2010] FamCAFC 101 at [103]

4. These parties each concede that they are historically unable to communicate and although the father indicates some willingness on his part, there is little evidence to give optimism in this regard.  They have singularly been unable to cooperate or agree in respect of X.  There have been over-holdings.  They have succumbed to compromise results without any clear indication of focus upon X's best interests.  

5. The evidence convinces me that these parents have different levels of insight and focus in respect of their daughter.  There has been little in the way of admissions or concessions in respect of the various allegations and counter-allegations.  There is inter and intra family antagonism and conflict.  The parents’ own relationship is defined by the mother’s unchallenged evidence of the father’s violence. In all of these circumstances I am not satisfied that an order for equal shared parental responsibility would be in X's best interest.

6. The mother and the independent children's lawyer now propose daytime contact between X and her father with such time to be in the presence of another adult until Mr Knowles completes an anger management course. I confess to reservations or, indeed, pessimism, in the father benefitting from such a course given his denials in the witness box and my observation of a man devoid of the maturity or focus to make the acknowledgements which I expect must premise any benefit from these courses. I also have reservations in respect of the condition of a third person being present.  There is no nominated person.  Rather the position of the mother and the independent children's lawyer is that the mother should need to "agree" the identity of that person.  Leaving these parents to “agree” does not fill me with confidence. Whilst her counsel from the bar table suggests that the father's brother or other family members may be suitable, I am mindful of the potential for further conflict between these parents and involving those partisan to each particular camp and leaving aside the fact that I have not had the benefit of affidavit material or even having the potential "supervisors" at court.  It follows that I am loath to obligate a third person.

7. X is now nine years of age.  The indications are that she shows a high degree of maturity in the sense of being able to rationalise her preferences and matters concerning her safety.  I am confident, therefore, that she would react and self-protect if placed in any position of danger or risk.  This would be particularly so if she was to understand that she was now to live primarily with her mother and not, perhaps, conflicted by divided loyalties as in the past.

8. Despite my hesitation above, I see some merit in the father undertaking an anger management course and, indeed, he conceded in the witness box that he would do so.  Nevertheless I continue to have serious concerns as to the father's capacity to care for X generally. He is not able to make the "rules of the house" given that he is simply a tenant and I envisage difficulties in him limiting the visitors or the type of visitor to that property or what they might bring with them.  I can only repeat that it is a home in which methamphetamine was found and in which X's descriptive statements to the family reporter were not countered by the father in evidence. I also have the evidence of the recent transient living arrangements for Mr Knowles and X and without convincing explanation by Mr Knowles.  Taking all of these matters into account, I cannot be satisfied that X's best interests are served, at this stage, in there being overnight or block periods of time with her father.  It follows that I agree that X's time should be limited to daytimes only but to take place weekly.  I also do not favour the details of the particular day being left only to "agreement between the parties".  Frankly I cannot be confident of them reaching any agreement. I expect that Sundays might be less conflicting with X's extra‑curricular activities and other interests, and I will order that the time take place on Sundays between 10 am and 5 pm.  Given that the mother is essentially the primary financial support for X, (although this may change given my orders as to X's living arrangements), I prefer that the father should collect X from her mother's home at the start of each period and return her there at the end of each time period. I am not confident that his barbment is so certain or stable that he will be contributing any or any adequate child support to the mother. The distance is between (omitted) and (omitted) is not overly onerous and such orders would give the father and X the benefit of some extra time together. I will also provide for telephone communications at any reasonable time.

9. Perhaps with unwarranted optimism, but in some hope that the evidence in this matter and these reasons give the parents cause to reflect on their daughter's best interests and, hopefully to avoid further litigation, I will include an order in respect of the father's time with X to be "otherwise as agreed in writing". I am satisfied that it is in X's best interests for her mother to exercise sole parental responsibility but with provision for notification of the father in respect of education and medical matters.

10. It is the father’s propensity to anger that most concerns me and hence the order for him to complete the anger management course. Frankly I am not convinced that to “overload” him with a further parenting course would not be putting too big a burden on this man who simply needs to add some maturity to his parenting and recognise that his daughter does love him and wants a relationship with him. She doesn’t want to do so in an environment of adult men drinking and taking drugs. This is not too much for a nine year old to expect of her father.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  11 December 2014