Lawson and Lynch

[2015] FCCA 3635

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAWSON & LYNCH [2015] FCCA 3635

Catchwords:
FAMILY LAW – Interim parenting.

Legislation:  
Family Law Act 1975, ss.60CC, 61BA, 61DA, 65DAA

Evidence Act 1995, s.144

Applicant: MR LAWSON

Respondent: MS LYNCH

File Number: NCC 2623 of 2014

Judgment of: Judge Myers

Hearing dates: 7 April 2015 & 9 April 2015

Date of Last Submission: 10 April 2015

Delivered at: Newcastle

Delivered on: 10 April 2015

REPRESENTATION

Solicitors for the Applicant: Sharon Moore Solicitor

Solicitors for the Respondent: Wall Legal

THE COURT ORDERS THAT:

1. The matter be relisted for submissions on whether an order for the child to live with the mother is conditional upon the mother complying with the injunctive order preventing the child coming within 100 metres of Mr J or coming into contact with Mr J.

2. The matter is adjourned to 29 May 2015 at 9.30 am for submissions.

3. The court seeks submissions from the parties in circumstances where it is considering making an order that the child live with the mother conditional upon her compliance with the injunctive order preventing the child coming into contact with Mr J in that should she breach the injunctive order the child will immediately commence living with the father and spend five nights a fortnight with the mother.

4. The current interim orders will remain in force until after the parties make submissions as to whether a lives with order for the mother shall be conditional upon her compliance with the injunctive order preventing the child coming into contact with Mr J.

THE COURT NOTES THAT:

1. The court asks the parties note the court proposes making an order that the parties have equal shared parental responsibility, that the child live with the mother, the child continue to spend 5 nights a fortnight with the father in accordance with the orders made 29 October 2014 that the injunctive order with respect to Mr J remain in force and that the injunctive order made 26 March 2015 with respect to video game content remain in force. The court further proposes to make an order that would see the child spend time with both parents on Christmas Day and otherwise half of the school holidays including special occasions such as Mother’s Day, Father’s Day, the child’s birthday and the parties’ birthdays. 

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT NEWCASTLE

NCC 2623 of 2014

MR LAWSON

Applicant

And

MS LYNCH

Respondent

EX TEMPORE`REASONS FOR JUDGMENT

1. These are interim proceedings in relation to the care and living arrangements for a child, X, born on (omitted) 2007.  The decision made today follows the matter being heard for two days by way of interim hearing as a result of the applicant father having filed an application in a case.  The parties have again changed their positions from the orders they sought in their amended application in case and response thereto.  The orders the parties seek are contained within minutes of order the parties caused to be filed as a result of directions made by the Court when the matter was listed on the last occasion.

2. There are current orders in place relating to the care and living arrangements for the child, X made on 29 October 2014 by consent that provided that the parties have equal shared parental responsibility for the child; the child live with the mother; the child spend time with the father as agreed between the parties, but failing, during school terms, each alternate Friday after school through to the commencement of school the following Wednesday, a regime of some five nights a fortnight and during school holidays, each alternate week.

3. There are additional orders that provide for the child spending time with the parties during the Christmas holiday period in 2014. 

4. The matter came before the Court on 26 March 2015, and the Court made further orders as follows:

   a)That the parties be prevented by injunction from allowing the child to play video games with the rating above PG and are to delete any applications on iPads or iPhones with rating above that rating and remove from their residence any game or video games with the rating higher than PG.

   b)The Court notes the injunctive order was made on 29 October 2014, namely, that the mother be restrained from allowing the child to come within 100 metres of Mr J or his residence.

   c)The mother be restrained from allowing the child to be cared for by anyone under the age of 18 years.

5. The father seeks orders on an interim basis as follows:

   a)That the orders made on 29 October 2014 be discharged.

   b)That mother and father have equal shared parental responsibility for the child, but that X live with the father and X spend time with the mother during school terms each alternate weekend from after school or 3.10 pm on a Friday until 9.00 am before school Monday and for term 1 school holidays commencing 3 April from 9.00 am on 11 April 2015. 

   c)The Court notes that X is to spend with the mother from after school on 22 April 2015 during the school terms, during the school holidays periods for half of April, July, September, public holidays, such halves as to be agreed between the parties.  In the absence of agreement, from the second half of each of the school holidays.

   d)During particular times during the Christmas holidays and time on Christmas Day.

   e)For the purposes of these orders, the school terms and Christmas school holidays are deemed to commence at 9.00 am on the first day after of public school term ceases and changeover shall occur at 6.00 pm on the day closest to the middle of the school holiday period.

   f)The father seeks additional time during events of significance, including time on Mother's Day and time on Father's Day, and an order that enables the parties to cause X to be involved in extracurricular activities;  an order that the mother enrol in and complete a parenting after separation course;  and a further injunctive order repeating the injunctive order that remains in place, preventing the child coming into contact with Mr J or within 100 metres of his residence;  and restraining the mother from allowing anybody under the age of 18 to care for X.

   g)Other injunctions that the Court will term non-denigration orders.  Orders preventing the parties from discussing the family law proceedings, an order that each party be and hereby are restrained by injunction from allowing or permitting X to play video games with a rating or classification of M, MA, MA15+ or R18+ or above.

   h)Orders for telephone communications, matters in which the parties will communicate and provisions for handovers to child, where otherwise not at school, at McDonald's Family Restaurant at (omitted). 

6. In support of the orders sought by the father, he caused to file two affidavits.  The first is an affidavit filed by him on 8 October 2014, in which the father deposes to being the applicant father in the proceedings.  He is currently 50 years of age.  He is self-employed as what he describes as a (occupation omitted) and he owns his own premises at (omitted).  It is an acreage with a three bedroom home. The father deposes that whilst the mother is Aboriginal, she is not engaged with her community.  The father deposes to being the father of X.

7. The father gives evidence that the mother is employed at the (employer omitted) in an (omitted) in (omitted) and that she works mostly afternoon shift.  The father deposes to the parties' relationship having existed between October 2004 and December 2009, and the parties lived together from approximately February 2005 until December 2009.  That the mother has two children of a previous relationship, namely, A, aged 16 years, and Mr H, aged 21 years.  A lives with her father, Mr J, and spends time with the mother.

8. There were no parenting orders at the time of swearing the affidavit between the father and the mother with respect to X, and there was, what the father describes as, an informal parenting arrangement.   

9. The father deposes to the mother making disclosures to him about her relationship with Mr J, including that the mother told the father Mr J was a drug dealer; that she was forced to marry Mr J; that Mr J is involved in illegal activities; the mother was the victim of a home invasion whilst going out or in a relationship with Mr J where the mother and Mr J were tied to a chair and both sexually assaulted.

10. The father deposes that the mother advised him Mr J was continually intoxicated and physically abusive of the children and herself.  The father suggests the mother had stated that she witnessed Mr J have his teeth knocked out during a home invasion and otherwise the father suggests he was involved in discussions with the mother to the effect that Mr J is a highly unsavoury character. 

11. The father deposes to a conversation he had with X when they were in the car in September of 2014, where it is alleged that the child spent a couple of nights ‘out in the open’.  It is alleged that X had been spending overnight time at Mr J's residence, although at the time of this reading of the affidavit, the injunctive orders were not in place.

12. The father raises concerns with respect to X's welfare, including that the mother demonstrated a lack of insight in allowing X to spend time overnight at Mr J's residence; that the mother does not what he describes as maintain X's nutritional requirements, in that the mother does not like to cook and as a consequence, feeds X what the father describes as processed foods such as wedges, fish patties and noodles.

13. The father raises some concerns about X's school report in that it indicates what the father describes as a high number of absences and partial absences.  The father raises criticism with respect to the manner in which the mother seeks to discipline X, including that X is exposed to his siblings', what the father describes as, “bad behaviour” or “bad language” whilst living at the mother's home.  The father deposes that X is often in trouble as a consequence of using bad language.

14. The Court has had a chance to read and consider the exhibits tendered in the proceedings, including reports and documents tendered from the child's school that indicate that X has indeed been getting himself into some trouble at school.  The Court has read exhibit A of the proceedings.  It is a letter, that is not disputed was prepared by the mother, and appears to have been forwarded to Centrelink.  The letter indicates that the mother was of the view at the time the letter was sent that Mr J is a violent, mentally and physically abusive person.

15. The letter is highly critical and uncomplimentary of Mr J's character.  It is the letter and the complaint the mother is allowing X to come into contact with Mr J that in part lays the foundation of the father's application that there be a change in residence.

16. The father is critical of the mother having taken leave from work when X is at school, where the father suggests the mother has done so that she does not have to spend time with X.  The father suggests X is not given enough sleep because he stays up as late as 9.30 pm some nights at the mother’s home.  The father raises complaint about the mother refusing to bring X back to spend time with him and concerns about the father being unable to collect X from after-school hours care.  The father deposes that it is his genuine belief that it would be in X's best interest to live with him and spend every alternate weekend with the mother, as he does not believe the mother is capable of caring for X, to what he describes as, “a required standard”.

17. The father deposes that it is the mother's actions that have exposed X to risk of harm by allowing him to spend overnight time at Mr J's residence.  The father does not believe that the mother has the adequate insight necessary to protect X.

18. The father caused to be filed a much lengthier affidavit on or about 25 March 2015.  The father deposes to the mother having failed to comply with the orders made by the Court on 29 August 2015.  It is apparent, having heard from the parties, that there was significant disagreement between them about the operation of the orders, particularly with respect to the school holidays, and having reconsidered the documents filed and the materials tendered, it would appear that the mother, in some manner, has unreasonably dealt with the father and prevented him, at least on some occasion, spending time with the child.

19. Although these are not contravention proceedings, these are proceedings to determine with whom the child should live, in circumstances where both parties seek orders the child live with them. 

20. Again, the father makes complaint about the mother failing to meet X's nutritional needs.  The father raises significant complaint about X being exposed to what he calls “graphically violent video games”, and that X is what the father describes as mimicking the violence at school on his classmates.  The Court has read a note that was forwarded to the father that is suggestive that the child wishes the father to "fuck off".

21. The father raises complaint that the child has been playing the video game Grand Theft Auto which the father describes as extremely violent.  Again, the father raises complaint that X has had what the father describes as a high rate of absenteeism from school with no justification.  The father annexes to his affidavit considerable photographs depicting the residence at which he resides and is able to make available to X.  It is a well-appointed residence, and one that is well-suited, having looked at the photographs to provide for the needs of a child residing there.

22. These are not, however, proceedings to determine which is the best house for a child to live based upon the appointments to a home or its facilities.  These are proceedings in which the Court must determine what is in the best interests of the child. 

23. The father lays significant complaint at the feet of the mother with respect to the child becoming aware that the father had killed the child's dog, (omitted).  It is extremely disappointing that the mother had allowed her daughter to read an affidavit of the mother in front of the child that deposed to the father running the dog over.  There is no suggestion in these proceedings that the father sought to kill the dog, other than in circumstances of an accident or that he intended for the dog to die as a result of some punishment upon the mother or the child.  It appears as though it was simply an accident and one where the parties had originally sought to shelter the child by suggesting the dog had run away.

24. The father deposes to X being upset with him, having found out he killed the child's dog.  The father deposes to engaging the service of a carer to assist him in caring for X.  Her name is Ms M. The mother seeks the father obtain a Working with Children Safety Check for any person he engages to look after the child.  The Court notes that Ms M has filed an affidavit in the proceedings.

25. The father raises significant complaint about an event that is alleged to have taken place on 9 November at approximately 1.36 pm, where he alleges he saw the mother's car go past his home as he was leaving; that he noticed that the mother's daughter, A, was driving and was leaning out of the driver's side window and raised her middle finger at the father.  This is a case where the Court accepts on the face of the evidence for the time being that X and A are aware of the dispute and conflict between these parties.

26. It is unhelpful to X in the long term, and in the view of the Court unhelpful to the child, A, if they are caught up in the adult dispute between the parties.  The father deposes to the parties having arguments in December of 2014 with respect to the operation of the orders.  The father deposes to him retaining X in his care, and that the mother attended upon the home and that there was a verbal fight in front of the child. The father deposes to X witnessing the altercation and that he became terrified and huddled up against a television unit trying to hide.  The Court has read some of the COPS Event Entries with respect to the incident.  It is an unfortunate one that the Court hopes will not be repeated again by the parents.  The Court accepts the event is not demonstrative of the parties' entire relationship.  It is an unfortunate event and one that the Court expects that the parties will not readily repeat again in front of their son.

27. The father deposes to another altercation or disagreement between the parties with respect to the mother having arranged for B, one of her older daughter's birthday parties, to be held on a date when X was to spend time with the father. It is apparent that the father's solicitor wrote to the mother in respect of that issue.

28. The father deposes to an incident on 6 February 2015 where he alleges he followed the mother. The father suggests he knew that the mother would be collecting A from her father, Mr J's, residence; that he followed the mother from X's school to Mr J's residence and saw X in the car, and that this is a direct contravention of the parenting orders. 

29. The father caused X to attend upon Dr J, a clinical psychologist.  As a result of X attending upon Dr J, Dr J prepared a letter dated 10 March 2015 that provides:

    This letter is to confirm that Mr Lawson contacted Dr J on 2 December 2014 to seek an appointment to discuss his son and his son's needs.  An initial assessment was held with Mr Lawson on 9 February 2015, discussing X and the history of Mr Lawson's care for X.  X was then seen with his father on 10 February.  X presented as a child who was very comfortable with his father, his father's company and cuddled into him for much of the session. 

    While X was fairly reluctant to speak, he did tell me he was good at Minecraft, bike riding, he was a good runner, and had indicated on a projective assessment tool that he was quite happy at school and somewhat happier at his father's home than in his mother's home.  X made some indications that he was wanting to spend more time with his father.  However, I only had one session with X and his father together.  Please do not hesitate to contact me if further information is required.

30. Some four days after the interviews for the preparation for a Child Inclusive Memorandum by family consultant, Mr D, the father took the child to see Dr J.  It is somewhat disappointing in proceedings that parties feel they need to seek to bolster their case by taking children to further appointments to see specialists in circumstances where the child was interviewed by a family consultant. 

31. The father makes complaint that there has been some further difficulties with X at his school. 

32. Annexed to the father's affidavit is a copy of a note that the father believed contains a quote from what he describes as, popular video game Grand Theft Auto. The Court cannot take judicial notice as to what is or what is not a quote from Grand Theft Auto. If one looks at section 144 of the Evidence Act 1995, there are some matters the Court is able to take on judicial notice and others the Court is not.

33. Section 144 provides that:

    (1)     Proof is not required about knowledge that is not reasonably   open to question and is:

(a)     common knowledge in the locality in which the   proceedings is being held or generally; or

(b)     capable of verification by reference to a document the    authority of which cannot reasonably be questioned.

(2)     The judge may acquire knowledge of that kind in any way the   judge thinks fit.

1. The Court is not in a position to take judicial notice as to what is or is not a quote from Grand Theft Auto.  The Court understands having read the affidavits there are a number of versions of Grand Theft Auto, and that Grand Theft Auto is up to the fifth edition of the video game.

1. The Court is of the view, having regards to what is contained in the father's affidavit, that the video game is not a suitable video game for a child of X’s age in these proceedings.  The injunctive orders in place would prevent the child playing Grand Theft Auto.  The father raises complaint with respect to having received a telephone call from X's school principal, Ms S, advising him that nobody had collected X.  It is apparent that ultimately X was collected from school.

2. At paragraph 51, the father deposes:

   I understand the difficulties that the Court has with respect to changing a child's residence, and this is partly why I agreed to the interim arrangements ordered on 29 October.  However, since these orders were made, despite the fact that Ms Lynch has primarily dictated the terms of the set orders, Ms Lynch has taken every available opportunity to breach the orders and cause conflict with respect to their implementation.  This is compounded by the home environment X has at Ms Lynch’s residence.

1. The father further deposes:

   I believe that it would be in X's best interest to live with me and   spend time with Ms Lynch each alternate weekend once she has completed a parenting after separation course.

1. The father has caused to be filed an affidavit of Ms M.  She deposes to being born in (omitted) 1966; she has known the father for some 25 to 30 years; that the father does contract work on their business on occasion; that she has started to look after X when the father has been at work; they do not have a structured arrangement; the father calls her for assistance from time-to-time; that she is self-employed and her hours of work are flexible.

2. Ms M deposes to X doing such things as getting up in the morning playing Sony PlayStation, and that she has slowly transitioned him out of that habit.  Ms M deposes to there being some behavioural issues demonstrated by X whilst in her care. 

3. Ms M deposes that on 6 February she was driving to X's school with the father and as they were driving the father said to her, "That is Ms Lynch’s car." Ms M suggests she observed the mother and X exit the school and get in the mother's car and thereafter drove away headed towards (omitted) in the direction of (omitted). Ms M deposes they followed the mother until the father is alleged to have said to Ms M, "That is where the ex lives."  Ms M deposes they parked about eight to 10 houses down from the house and they saw somebody come out and put an L plate on the back of the car.  Ms M deposes to being advised by the father that the home at which X had attended was that of the mother's former partner, Mr J. 

4. The father has caused to be filed and relies upon an affidavit of Ms K.  It is sworn or affirmed on 22 October.  Ms K deposes to being the sister of the father in the proceedings and the paternal aunt of X.  She deposes to an event in which is it is apparent X has gone out and stayed with his sister and Mr J for some three days.

5. The mother caused to be filed some amended proposed minutes of order in the proceedings.  The minutes of order seek the parties have equal shared parental responsibility.  It is an important feature in these proceedings that both parties agree there should be equal shared parental responsibility, despite the parties raising significant issues about the other's care of X.

6. The mother seeks orders that the child spend time with the father during the school term each second weekend from the conclusion of school on Friday to the commencement of school on Monday, each Wednesday overnight, essentially five nights a fortnight, although not in the format of the current regime.

7. Counsel for the father indicated that if the Court did not make the orders sought by the father, that is, for a change of residence of X, that the Court should maintain the current regime where the child spends five nights a fortnight with the father in one block.  There is some utility in the suggestion where it is clear that these parties do not get along, and the spending of time in a block would reduce at least the parties' need to come into contact and communication with each other.  It would probably reduce the level of the child's exposure to the parents' conflict.

8. The mother seeks orders for the child to spend time with each parent for one half of terms 1, 2 and 3 school holiday periods and one half of the Christmas school holiday periods as agreed and failing agreement in five night blocks commencing in the first week. 

9. The mother seeks orders for time on Father's Day and Mother's Day and time to take place at Christmas in the even years from 2.00 pm on Christmas Day until 11.00 am Boxing Day, and in odd-numbered years from 11.00 am on Christmas Eve until 2.00 pm Christmas Day.  That changeover is to take place at the (omitted) McDonalds, where the handovers are otherwise being facilitated through the child's school.

10. Other orders are sought for the facilitation of telephone communication, including that the father will ensure his mobile telephone is switched on and fully charged at times to ensure that telephone communication takes place or that his landline is connected. 

11. The mother seeks an order that the father provide the mother details of any carer the father employs to look after the child and provide the mother a copy of the current Working With Children Check with the carer prior for the carer caring for the child.  The father opposes the Court making that order.

12. The mother caused to be filed an affidavit sworn or affirmed by her on 1 April 2015.  She deposes that she is the mother in the proceedings.  She is 49 years of age.  She is an Aboriginal person belonging to the (omitted) people, the traditional owners of what she describes as (omitted) area.  The mother gives evidence that she participates in what she describes as NAIDOC, which the Court takes to mean they participate in NAIDOC Week celebrations.  The mother deposes she and X have Certificates of Aboriginality.

13. The mother suggests that she has taken steps necessary to ensure that X spends time with the father in accordance with the interim orders, and she frequently encourages X to telephone the father.  The mother raises complaint that X has said to her that the father will not let him telephone the mother whilst in the father's care.  The mother denies that she does not feed X wholesome or nutritious food.  The mother annexes a copy of a document she describes as Child Routine that the Court has read and considered.

14. The mother deposes that during the periods where she works, X is cared for by her mother, a person called Ms S, and that her mother is a very capable woman and has over many years helped her with all of the children while she has worked.  The mother gives evidence that her mother has told her that X is always a well behaved child when she is caring for him.  It is apparent, having read some of the subpoenaed material that has been tendered in evidence, that X is having some behavioural difficulties at school.

15. The mother deposes that X does not and has never been allowed to play graphic, violent video games, and suggests X is not a violent child.  The mother gives evidence X has a good relationship with friends at school.  A copy of X's school reports are annexed to the mother's affidavit.

16. Under the hearing General Comments the school report states:

    X is an energetic and active child who shows enjoyment of a        wide range of activities, is a capable student who picks up most       concepts easily.  His progress in all subject areas is pleasing, and he completes tasks in a set time.  At times X is inattentive and disrupts the learning of others, as he likes to talk with other students when they need to listen or be engaged in some other task.  He usually gets along with his peers, but at times makes some inappropriate choices.  X has a good sense of humour and his     bubbly nature makes him an engaging class member.

1. It appears as though X is a happy child.  But, again, the Court has read that he has had some issues at school, and that would be no doubt why the school talks about making some inappropriate choices, particularly noting that he has pushed a child into the urinal, and otherwise there has been, what the Court would describes as, issues dealing with language or other behaviour.

2. The mother deposes that her older children do own video games which are inappropriate for X to play, which she suggests they are not allowed to play in front of X.  The mother deposes that X is obsessed with zombies and is aware that A has a game called (omitted), which is about a post-apocalyptic world with zombies.  The mother suggests X has seen the cover of the video game, but he has never been allowed to play the game or watch his sister play the game, and would not be able to do so because A’s game console is at her father's home.

3. The mother deposes that none of the children own the game Grand Theft Auto, and consequently X has never played the game within her household or has been exposed to the game in her household. 

4. The mother deposes that X has told her that he plays video games when he spends times at the father's home.  X has told the mother that, "Dad let me play Minecraft and (omitted)."  The mother deposes that she said to X, "Isn't (omitted) a game where you shoot and kill people?"  And X has said, "Yes.  You shoot and kill people.”  The mother deposes that X has recently said to her, "I have Grand Theft Auto cheats on my Samsung Galaxy at Dad's.”  To which the mother alleges she said, "Did Dad give you that?" and X said, "No.  It is Aunty Ms K," and that the paternal aunt, "gave me a 50 apps card two Christmas’ ago."

5. The mother alleges that X told her that there are heaps of games on his tablet that are violent and have swearing in them.  The mother deposes to reasons for X's absences from school. It is apparent that X broke his left arm at school.  The mother deposes that some of the absences from school have been a result of the father removing X from school. The mother gave evidence as to a conversation in which the child is alleged to have spoken about the father taking him to see a person called Mr J who had a lot of questions.

6. The mother admits to being late for school on some occasions, mostly due to being tired after working the evening before.  Tired or not, the mother needs and the parties need to get X to school on time.  The Court will make an order that the parties take the child to school on time.  The mother deposes to circumstance between her and her former partner, Mr J.  It is interesting to hear the submissions of the solicitor for the mother to the effect that she was not aware of exhibit A at the time the mother swore or prepared her affidavit.

7. The mother deposes "I have never left X in the care of Mr J.  X was on one occasion left in the care of his sister, A," who the Court notes is under the age of 18, and further that "I had no other alternative, as my mother was not free and Mr H was unavailable.  I did call Mr Lawson on 23 September and asked if he could babysit X for me, but Mr Lawson said to me, "You were supposed to come and stay Friday night.  No.  I am not minding him.  Fuck off."

8. The mother deposes Mr J does have a criminal record, and that Mr J has not committed any offences related to drugs since 1994. The mother’s evidence is in stark contrast to the matters that are described by the mother in her letter that form exhibit ‘A’ in the proceedings.  There is good reason, in the view of the Court, why the Court has made injunctive orders preventing the child coming into contact with Mr J, based upon the contents of the mother's letter.  The Court does not propose to remove the injunctive order and it is necessary for the mother to comply with the injunction.

9. The mother deposes to various events between the parties that were referred to by the father.  The mother raises some complaint that the father has had firearms during periods when parties were in a relationship together.  The Court notes that contained within the father's photograph are, what the Court would describe as, samurai swords.  The photographs are suggestive that the father has an interest in weaponry.  Perhaps it is not surprising the child has some interest in violent video games. 

10. The Court does not know, and cannot take judicial notice as to what may or may not have been said in the video game Grand Theft Auto or indeed what version of the Grand Theft Auto the child is alleged to have seen.  The mother raises complaint about the father not placing the child in a booster seat, and there was some issue of disagreement between the parties as to whether or not the child was required or not required to be in a booster seat.

11. Having regard to section 144 of the Evidence Act1995, the Court received a document produced by what the Court will term as, the authority that oversees transport and roads in New South Wales.  The document indicates that given the child's age, he is not required to be in a child booster seat. 

12. The mother deposes to attending at the father's residence where there was a scene between her and the father.  The police were called.  This is a disappointing event.

13. The mother alleges a conversation in which the child stated to her the father has been at her home looking through the windows.  The Court finds the parents are highly untrusting of one another.

14. The mother caused to be filed and relies upon an affidavit of Mr H.  Mr H is the 22 year older half-brother of the child in these proceedings.  He deposes that he lives in a converted garage at the mother’s residence and that the mother and X live in the main home.  Mr H suggests he goes into the main home every day to have showers and meals, and the mother normally cooks for them. 

15. Mr H deposes that at his mother’s home they eat healthy meals, such as corn beef with vegetables, mashed potato and gravy, which is one of his favourite meals and that the mother cooks quite often.  He suggests he does not eat junk food regularly and everybody in the home is health conscious, and he attends the gym regularly to keep up his fitness, and that his sister, A - that he refers to as A comes and stays with him, and that it is not unusual for her to come over when she feels like it, and sometimes he visits her and his father at the father's home, that is, Mr J's home.

16. Mr H describes witnessing the care and love that his mum gives X on a daily basis.  He describes he not liking living with the mother and the father in these proceedings after the mother formed a relationship with the father.  Mr H describes himself as being very close with X, and he has lived in the home with X since they were young.  Mr H suggested he and X play together at home; that X is active and loves to play (hobbies omitted) and to the best of his knowledge and belief, X has never been allowed to play violent video games, and that his mother would not allow him to do that.

17. Mr H suggests that approximately 18 months ago, he was sitting on a lounge in the bedroom in the converted garage playing Call of Duty, Call of Duty being described by him as a war game, and that X came in and sat next to him and watched him play, and that the mother came out and saw X and said, "X, you are not to be in Mr H's room while he plays his PlayStation," and that the mother took X out of the room.  Mr H suggests that his PlayStation has not been operating for over 12 months as it is missing what he describes as, the AUX cord. 

18. Mr H annexes a photograph of the PlayStation console, and suggests he does not have time to play PlayStation anymore as he is working or otherwise spending time with his girlfriend.  Mr H deposes that he does not own the game Grand Theft Auto and to the best of his knowledge his sister, A, does not own the game either;  that his sister does not have a game console in the mother's home;  that A, owns an Xbox and has that game console at the father's home.  Mr H deposes that the mother is strict and would not allow X to play violent games, especially one as violent as Grand Theft Auto.

19. Mr H suggests that at the mother’s home people do not use swear words at the home and that his mother is strict and would not tolerate swearing. 

20. Mr H gives evidence that he is a (occupation omitted) working shift work and that he has observed the father drive past their home. Mr H deposes that he currently owns two properties.  One at (omitted), (omitted) and another at 48 (omitted), (omitted), and he is in the process of buying a third property.  Mr H annexes copies of rate notices to evidence his ownership of the properties. 

21. Mr H deposes that the (omitted) property is rented by his father, Mr J and that his father and sister live together in the property and the home is what he describes as the third home from the dead end of the street.  There are only seven houses before it, and the home sits on a 2020 square metre block.  Mr H suggests it would be impossible for anybody to witness activities taking place at this property.  Mr H deposes that on (omitted) his family attended the 13^th birthday party of his sister, B and that he and his girlfriend, Ms G attended upon the (omitted) property to collect a boat which he had stored at the property and also to collect his sister, A so that she could attend the party. Mr H deposes that X was not in the car with them at that time.

22. The mother has caused to be filed in court on 9 April 2015 a further affidavit affirmed or sworn by her on the same date.  The mother refers to the father’s allegation that on 19 November he saw A drive past his house with X in the back of the car ultimately driving to the home of Mr J.  The mother deposes that she did not and has not ever driven A to her father's home when X is in her care, and that she has an agreement with A that she catches the bus from a (omitted) bus stop to her father’s home when X is with her.

23. The mother suggests that whilst it is not convenient for A, the mother deposes that A understands that there are orders in place which prevent her from taking X near her father's home.  The mother deposes that the father lives on (omitted).  There is a 70 kilometre speed limit, and that it would be impossible for anybody to look into a car and see them driving past.  As discussed during the course of the submissions in the proceedings, the Court cannot take judicial notice of that fact.  It would be necessary for an expert to give evidence in the proceedings about whether one could look inside a car travelling at 70 kilometres an hour past where the person was standing.

24. A copy of some photographs are annexed that are sought to indicate that the car the mother owns has dark tinting.  The Court accepts it has dark tinting.  It was put that it would be impossible to look into the car and see X, because of the tinted windows.  The photographs depict a motor vehicle on the street in particular lighting conditions that the Court has no idea about.  The Court is not in a position to make a finding where there is no expert evidence before it. The Court cannot find that the windows are tinted to a degree that it would be impossible to view inside the vehicle. 

25. There are many facts that are agreed and disagreed in these proceedings.  One of the facts that are disagreed is whether or not the mother took the child to her former partner's home, Mr J, in contravention of the orders.  The Court is unable to make any finding about that issue today.  The Court has read and considered, the various exhibits in the proceedings forming exhibits A through to J.  The Court notes exhibit B, being the child inclusive memorandum.

26. The Court has taken into account the balance of the other documents, including police records, COPS event entries, criminal record, the father's record of the (omitted) School with respect to out of school hours care, the printout of Transport of New South Wales with respect to the car seat and the like. 

27. The child inclusive memorandum sets out issues of concern that include the psychological functioning of X, where X is under enormous psychological pressure in each household. During the preparation of the memorandum, the father alleged to the report writer that the mother deliberately retained X in the lead-up to the child inclusive conference.

1. The report notes there are issues regarding Aboriginality.  The mother says she is part Aboriginal.  One cannot be part Aboriginal.  You are either Aboriginal or you are not.  The father questioned the genuineness of the mother's claim.  The mother has annexed to her affidavit copies of certificates of Aboriginality.  The Court accepts the mother and child are Aboriginal persons.

2. The report writer suggests both parents have failed to protect X from the details of the adult dispute and that both parents have been trying to persuade X as to the benefits of their own proposal.  The report writer suggests X’s safety in the care of the mother's former husband, Mr J, is a risk factor.  The mother advised the report writer Mr J had many problems many years ago when she lived with him, but he does not pose any risk to X or anyone else since that time.  The family consultant even notes, as do I, that the mother's statement to Centrelink dated 31 October strongly suggests otherwise.

3. The mother needs to understand Mr J is a person who must not come into contact with X.  The Court is concerned the mother has sought to minimise potential danger. It is further concerning that perhaps the mother finds or feels as though the order is not important.  The order is important.  The orders are of such importance that if the mother fails to comply with the orders, the mother may lose the child to the father.  Compliance with the order should be a condition of the child living with the mother. 

4. The memorandum further sets out:

   X is seven years.  He is presented as a playful child of stated   age.  He has recently commenced year 2 at the local public school.  He was recently reluctant to provide much information, but progressively relaxed and spoke comfortably about himself and his    family and became quite chatty.  On occasion, however, he would   appear reluctant to provide information about some subjects, such as how his mother's pet dog had died, how he knew his parents were not friends and how he came to be concerned that if he spent time with the father, the father might not return him to his mother. 

5. The Court is concerned about what the mother might be discussing with the child. It is highly concerning that X is aware of the conflict and how his dog was killed, where his older sister read the mother's affidavit in front of X.  Not a good set of events at all.  However, the Memorandum suggests X spoke positively about each parent and about each household.  X described things he liked doing in both households, mostly playing screen based games.  X had no concerns in either household.  He clearly had strong positive relationships with members of the mother's household and with the extended maternal family.  I will read his views on to the record again so the parties might again hear it.  X had no concerns in either household.

6. X stated he generally slept in his father's bed with his father, and sometimes he slept on the lounge and sometimes in the spare room.  It is apparent that he has been co-sleeping with the mother as well.  It is not ideal, given his age.  The parties should consider doing something about addressing that issue.

7. The family consultant sets out:

   X expressed a very clear and very strong view that he wanted to live predominately with his mother and visit with his father alternate weekends and half the holidays.  It is recommend that some weight be placed on X's expressed view, but that significant caution. should be applied, as it appears he has been inappropriately exposed to selected aspects of the child issues by both parents, and because of the nature of the issue and concerns raised by the parents, it is highly unlikely that X has sufficient maturity to realistically grasp the significance of those issues.

8. When giving weight to the views of the child talking about alternate weekends, the Court does not accept that X has a sufficient level of maturity and understanding to express a view the Court should give weight about the actual time he should spend with the father.  The Court accepts that he is expressing a view that he wants to live with his mother.  X has a level of maturity and understanding to express a view about with whom he wants to live, but not in the view of the Court with respect to the child spending alternate weekend time only.  The Court does not accept that X has a sufficient level of maturity and understanding to understand the consequences of the Court making an order about time with the father, accordingly the Court does not give that view significant weight.

9. The memorandum recommended both parents accurately record the amount of time that X is using screen based equipment, and also record the content.  It also recommended that once this baseline information is available, the parents work together to determine if it is appropriate.  If not, they work together to reduce and eliminate inappropriate content, such as his favourite game, (omitted). 

10. It is difficult to know whether or not the child is being exposed to an inappropriate level of screen based material, or inappropriate video games. There is enough evidence to find X is aware of inappropriate video games, such as Grand Theft Auto; that he is aware of (omitted) and other games that a child of X’s age should not be playing.  The Court does not propose to remove the injunctive order concerning inappropriate video games.  It should remain.

11. In determining the matter, the Court must consider those matters set out at section 60CC. The primary considerations are those found at subparagraph 2(a) and (b), 2(a) being subservient to the primary consideration with primacy at 2(b). The Court considers the benefit of X having a meaningful relationship with both the child's parents. It is clear on the face of the material there is a benefit in X having a meaningful relationship both parties.

12. In respect to the need to protect X from physical or psychological harm from being subjected to or exposed to, abuse, neglect or family violence, the Court notes the parties cannot agree upon whether or not the mother has allowed the child to come into contact with Mr J in contravention of the injunctive orders the Court has made. A further issue of disagreement is whether X has been exposed to inappropriate screen based material.  The Court does not know whether these issues have caused X to act out at school or caused him to author the note written to his father telling his father to "fuck off".  Those are matters that are not agreed between the parties and the Court cannot make findings about them.

13. The Court can make findings that it is not in the best interests of the child to watch age inappropriate screen based material or play age inappropriate video games, because it would subject the child to the risk of psychological harm as a result of neglect.  That is, the neglect of the parents allowing the child to play such games.

14. The Court is concerned that if X comes into contact with Mr J, noting the contents of exhibit A in the proceedings, X could suffer physical or psychological harm as a result of being subjected to exposed to abuse, neglect or family violence, particularly family violence or abuse.  The mother laid bare her complaints about Mr J in exhibit A.  They are very, very significant complaints.  The mother has, in the view of the Court, sought to minimise the behaviour of Mr J in her affidavit material and in comments made to the report writer.  The report writer notes that her retelling of issues about her relationship with Mr J are wholly inconsistent with exhibit A.

15. The Court does need to protect the child from physical and psychological harm, abuse, neglect or family violence, and therefore proposes to leave in place the injunctive order. Should the mother fail to comply with the order the parties are granted leave to relist the matter for further argument and application the child live with the father. 

16. The Court must take into account the views expressed by the child and any factors such as the child's maturity level and understanding when giving weight to the views expressed by the child.  The Court does not accept X’s view expressed to the report writer, that he should only spend alternate weekends with the father as having significant weight. The Court gives the view of the child that he wishes to live with the mother weight.

17. The Court accepts X has a sufficient level of maturity and understanding to know that he wishes to live with his primary carer. The mother has been the child's primary carer. 

18. The Court must consider the nature of the relationship with each of the child's parents and any other person.  The Court accepts the child has a good relationship with his father, a good relationship with his mother, and a good relationship with his brother and sister.

19. The Court takes into account 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 relation to the child, to spend time with the changed, and communicate with the child.  The Court raises no criticism of either party in that regard.

20. Each of the child's parents have fulfilled their obligation to maintain the child.

21. The Court considers the likely effect of any change in the child's circumstances, including the likely effect on the child being separation from either his or her parents or any other child or any other person, including any grandparent or other relative of the child with whom he or she has been living. This is the one of the significant considerations the Court takes into account in this matter. 

22. The father seeks orders that the child live predominately with him and spend less than substantial and significant time with the mother.  The father’s proposal would see the child separated from his primary carer with whom he has lived all his life and separated from his brother, and his sister who attends her mother’s home from time-to-time.  He would be separated from his mother, from his sister and his brother. The Court is of the view that the effect of that on X would be significant, and it would be detrimental, given his expressed views, given that he has no concerns in either parents household. 

23. The Court is asked to change an arrangement where X has no concerns, where he is expressing a view that he wants to live with his mother. The Court is concerned about the effect of the orders that the father seeks, where it would reduce X’s time significantly with his mother, brother and sister to less than substantial and significant time, as defined at subparagraph (3) of section 65DAA.

24. The Court considers the practical difficulty and expense of X spending time with and communicating with a parent.  The Court does not give weight to that consideration.  The Court considers the capacity of each of the child's parents and the other person, including grandparent or other relative of the child to provide for the needs of the child, including their intellectual and emotional needs.  The Court accepts that the parties have the capacity to provide for the needs of X, including his intellectual and emotional needs.

25. There is nothing in the maturity, sex, lifestyle and background of the child and either of the child's parents that the Court considers relevant.  The Court notes X is an Aboriginal child.  He has a right to maintain his culture, and the Court notes that the mother has indicated that she is doing things to maintain the child's culture.  The Court accepts that if the Court does not change the current orders, that is, for five nights a fortnight with the father, and the child lives with the mother, that the effect of those orders would not prevent the child enjoying his culture or enjoying his culture with other people who share that culture.

26. The Court considers the parties attitude to the child and to the responsibility of parenthood demonstrated by each of the child's parents.  It is disappointing in its entirety that the mother allowed her 16 year old daughter, A, to read her affidavit aloud so that X heard that the father had accidently run over the child's dog.  X had had a belief the dog had run away, and probably in his heart X had probably hoped that the dog was still living a happy life, perhaps with somebody else, instead of having been squashed under the wheels of his father's car.

27. It did not demonstrate a good responsibility towards parenthood.  What it demonstrated was the mother's lack of insight, and the fact that it would upset a child. It is not beneficial to X that he understand these proceedings, and clearly he does.  Both parties have done things they should have not by exposing their child to conflict and the conflict in these proceedings.  The parents need to take heed of the comments made in memorandum and simply stop.  It is not a factor that is determinative in the proceedings.  It is an observation and it is a criticism of the parties' behaviour.

28. While on balance greater criticism can be directed towards the mother, there is still some criticism directed towards the father. 

29. These are warring parents who want diametrically opposed orders for their child.  The Court is not in a position to make a finding today about the parties committing family violence.  The Court is not aware there is a current existing domestic family violence order in place.    

30. The Court must consider making orders that would be least likely lead to the institution of further proceedings. No matter what order the Court makes today, there will be further proceedings between these parties. I turn to section 61DA of the Family Law Act1975, the presumption in favour of equal shared parental responsibility.  It is a feature in this case that despite the orders the parties seek and the criticism of one another, both parties seek an order for equal shared parental responsibility.

31. The Court does not find that there has been family violence or abuse of the child or any other child in the parents' or parties' households or child who was at the time a member of the parents' households. The Court does not consider that it is in the best interests of the child for the presumption not to apply. When dealing with section 61DA(3), when the Court is making an interim order, the presumption applies, unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making an order. The Court considers that it would be appropriate to apply the presumption. The Court applies the presumption and accepts the orders sought by the parties. That is, an order for equal shared responsibility, which triggers the Court's consideration of section 65DAA.

32. Section 65DAA provides that the Court must consider whether it is in the best interests of the child to spend equal time with both parents and whether it would be reasonably practicable, and if not, then whether it would be in the best interests of the child for there to be substantial and significant time with one parent and whether it would be reasonably practicable for the Court to make an order for the child to do so.

33. Without restating every consideration at section 60CC again, the Court says this. It would be in the best interests of this child to spend equal time with both parents, but it is not reasonably practicable to do so, because, when the Court considers subparagraph (5) of section 65DAA, although the parties live close enough to one other to make it practicable and the parties could facilitate it in that they have the current or future capacity to implement an arrangement for equal time. The Court is of the view the parents do not have the current or future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of equal time. The Court finds against equal time on the basis of the parties' incapacity due to poor communication.

34. I am required to consider section 65DAA with respect to orders for substantial and significant time. The Court is of the view that it is in the best interests of X that he continue to enjoy substantial and significant time with his father, as defined in 65DAA, subparagraph (3), being days that fall on weekends and holidays and that days that do not fall on weekends and holidays, and otherwise time that allows the child's parent to be involved in the child's daily routine and occasions are of particular significance to the child. It is in the child's best interests. The Court is of the view that the parties live close enough to one another; they have the current and future capacity to implement the arrangement and the parties do have the current and future capacity to communicate sufficiently to overcome issues that might arise in implementing an arrangement of substantial and significant time. That is, five nights a fortnight. The Court is of the view that the impact on X would be a positive one as opposed to negative one, despite the views expressed by X where the Court does not give weight to the views expressed by X as to the number of nights he might spend with the father.

35. The Court is satisfied, having regards to those matters set out at 60CC(2)(a) and (b), and (3)(a) through to (m), that it is in the best interests of this child that he continue to live with the mother and spend time with the father as set out in the following orders.

I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of Judge Myers

Date: 28 April 2017