LEACROFT & DARELL

[2019] FamCA 940

FAMILY COURT OF AUSTRALIA

LEACROFT & DARELL [2019] FamCA 940

FAMILY LAW – CHILDREN – With whom the child shall communicate and spend time – Where the parties agree the child shall continue to live with the mother – Where the mother has provided a safe and secure home environment for the child – Where the child presently spends limited supervised time with the father – Where a three hour drive distances the father from the child – Where the father and child have a relationship – Where there are substantiated allegations of family violence perpetrated by the father – Where the father is yet to fully stabilise his unaddressed anger – Where the father seeks to spend substantial and significant unsupervised time with the child – Where the mother opposes time and communication between the father and child – Where in the alternative the mother agrees to ongoing supervised time between the father and child - Where there is benefit to the child in maintaining a meaningful relationship with the father – Where the Court must balance the need to protect the child from potential risk in the father’s care with the need to promote a meaningful relationship with the father – Ordered communication with the father on a weekly basis – Ordered supervised time with the father for a period of time and thereafter, unsupervised time with additional time as agreed in writing.

CHILDREN – Parental Responsibility – Where the mother seeks sole parental responsibility – Where the father seeks equal shared parental responsibility – Where the presumption of equal shared parental responsibility does not apply – Where the mother has been the sole decision maker for the child since separation – Where the father acknowledges the mother’s capacity to care for the child and make good decisions – Ordered the mother has sole parental responsibility.

Family Law Act 1975 (Cth) ss 60CC, 61DA, 64B, 102NA

APPLICANT: Ms Leacroft

RESPONDENT: Mr Darell

INDEPENDENT CHILDREN’S LAWYER: Fielden & Associates

FILE NUMBER: NCC 393 of 2018

DATE DELIVERED: 6 December 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 11 - 14 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bithrey

SOLICITOR FOR THE APPLICANT: Craney Family Solicitors

COUNSEL FOR THE RESPONDENT: Not Applicable

THE RESPONDENT: Representing himself

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Mueller

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Fielden & Associates

Orders

1. That all prior parenting orders made in this Court in relation to X born … 2016 (“the child”) are discharged.

Parental Responsibility

1. That the mother have sole parental responsibility for the child.

2. That the mother shall keep the father advised of decisions taken by her about the long term welfare of the child including, but not limited to, enrolment at pre-school and school, specialist medical treatment and religious instruction if any.

Residence

1. That the child live with the mother.

Time with the father

1. Each of the parties shall take all reasonable steps to ensure that the child spends time with the father as follows:

   5.1Supervised Until March 2020  through C Organisation on two occasions per calendar month with the mother paying $20.00 towards the costs charged by C Organisation and the father paying the balance; and thereafter

   5.2Unsupervised Commencing on 2 March 2020 and until the child turns 5 years of age (September 2021):

   (i)On the first consecutive Monday and Tuesday of each calendar month from 10.00 am until 4.00 pm each day, with such time to be spent in D City and/or D City Local Government area;

   (ii)On Father’s Day in 2020 and 2021;

   5.3From 5 years of age, commencing 2 October 2021, on the first consecutive Saturday and Sunday of each calendar month from 10.00 am until 4.00 pm each day;

   5.4At such other and/or additional times, and in such other geographical areas including Town H and Town G, as agreed in writing between the parties, if any.

2. The father is restrained by injunction from spending time with the child whilst he is affected by alcohol and at any time that he does not have a zero alcohol blood content.

3. In the event that the mother reasonably believes that the father is affected by alcohol at any changeover then the father’s time with the child shall cease permanently NOTING that the onus will rest with the father to provide evidence (by personal breathalyser or otherwise) that he is not affected by alcohol.

4. The father’s time spent with the child shall be subject to the following conditions:

   (a)The father shall provide the mother at least 48 hours written notice of his inability to exercise time and any make-up time shall be at the mother’s sole discretion;

   (b)The father shall provide at least 28 days written notice of any proposed long-term changes to the days that he exercises time and any changes to such days shall be at the sole discretion of the mother;

   (c)The father shall be restrained by injunction from removing the child from the D City and/or D City Local Government area save and except for with the written consent of the mother.

Changeovers

1. Changeover shall be at Coles Supermarket Suburb E between the mother or her nominee (which may include the maternal aunt and maternal grandmother) and the father or Ms F NOTING that no other person should attend at changeovers.

Communication

1. The father may communicate with the child via Facetime or other equivalent social media between 5.00 pm and 5.30 pm on each Thursday that he is not otherwise due to spend time with the child and such calls shall be facilitated by the father calling the mother’s mobile telephone number and the mother shall ensure that the child is ready to take the call and that her mobile telephone is fully charged. In the event the call is not able to take place, it shall be rescheduled to between 5.00 pm and 5.30 pm the immediately following Tuesday.

Restraints

1. Each parent is restrained from denigrating the other parent or any member of the extended family of that parent in the presence or hearing of the child and shall do everything possible to restrain third parties from such denigratory behaviour.

2. That the mother is restrained by injunction from allowing the child to be in the unsupervised care of Mr B, born … 1999.

Information

1. Each of the parents shall immediately advise the other parent in writing in the event of any of the following occurrences:

   (a)The child requiring emergency medical treatment by a paramedic, doctor or emergency department nurse;

   (b)The child being required to attend upon a specialist for treatment;

   (c)An Apprehended Violence Order being made for or against them or any member of their household;

   (d)The attendance of NSW Police, NSW Ambulance or NSW Department of Family and Community Services at their residence or upon themselves, their partner, the child, his siblings or any other member of their household.

2. The mother shall provide a copy of these orders to any child care centre, pre-school and school which the child attends.

3. The mother shall include contact information for the father in the school enrolment application for the child.

4. The mother shall authorise the school in which the child is enrolled to forward to the father all information relating to the progress and welfare of the child at school and of events to which parents are invited.

Passports and Travel

1. The mother is permitted to apply for and renew an Australian passport for the child and the consent of the father is not required for such application or renewal.

2. The mother may remove the child from the Commonwealth of Australia for the purpose of taking him on an overseas holiday provided that she provides the father with as much notice as possible, and in any event not less than 28 days, of her intention to do so and an itinerary of travel and accommodation and contact details in each overseas country.

3. The mother shall facilitate the child spending make-up time with the father before or after the overseas holiday, equivalent to the time which would otherwise have been spent during the holiday period.

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

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

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

FAMILY COURT OF AUSTRALIA AT D CITY

FILE NUMBER: NCC 393 of 2018

Ms Leacroft

Applicant

And

Mr Darell

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for parenting orders concerning one child (“X”) aged three years. The parties to the proceedings are the parents of the child.

2. The parties have known each other since they were children at school. The relationship between them began in 2013 and continued, with periods of separation, for about four years. The subject child was born in 2016. The parties separated finally in 2017 when the child was less than six months old.

3. The child currently lives with the mother and spends limited supervised time with the father. The child has had some supervised time with the father and communicates with him via Skype on a frequent basis.

The Parties

1. The parties live about 260 kilometres apart, a trip of at least three hours.

The Applicant Mother

1. The applicant mother is currently 24 years of age. She is not in paid employment and receives single parenting payments from Centrelink. The mother lives in the Q City area.

2. The mother identifies as Indigenous Australian.

3. The mother began an intimate casual friendship with Mr B, aged 20 years, after the parties separated. In late 2017 the mother learned she was pregnant. The child of that friendship, Y, was born in mid- 2018 and is now aged 17 months of age.

4. The mother’s household consists of herself, the subject child and the younger child Y.

5. The mother makes arrangements for Y to spend time with Mr B. The mother denies an ongoing relationship with him.

The Respondent Father

1. The respondent father is currently 29 years of age.  The father lives in Town G, a very small town north of Town H, in the R region of NSW.

2. The father concedes he has a history of drug and alcohol use. The father admits this has caused him to find himself in the criminal justice system; being charged with assault and classified as an habitual offender with respect to driving affected by alcohol.

3. The father is in a de-facto relationship with Ms F.  Ms F is 27 years of age. She is pregnant with the father’s child, due to be born late in December 2019.

4. The father’s household consists of himself and Ms F. The father’s brother, Mr J, lives on an adjoining property.

The Trial

1. The trial was set down for four days commencing 11 November 2019.

2. The mother was represented at trial by solicitor and counsel.

3. There was an Independent Children’s Lawyer (“ICL”) who was represented by counsel.

4. The father was self-represented, his solicitor having ceased to act shortly before the trial.[1]

   [1] Notice of Ceasing to Act filed 7/11/2019

5. The matter had been relisted on 7 November 2019. The Court was advised on that day that the father could not afford ongoing representation. His solicitor had prepared affidavits relied on. The relisting was to consider the implications of the mandatory protections of s 102NA of the Family Law Act 1975 (Cth) (“the Act”).

6. The father made a decision, communicated on that day, not to cross examine the mother. He did so to avoid the trial being adjourned. I am satisfied that he received legal advice about the potential disadvantage of giving up the opportunity to be legally represented.

7. The trial concluded within the allocated time.

8. Judgment was thereafter reserved.

The issues

1. Q.       Is there an unacceptable risk of harm for the child in the care of the father?

   A.There is some risk of harm, which does not rise to an unacceptable level. The father has taken steps to address his past abuse of alcohol, is in full time employment where there is daily drug testing and has formed a stable relationship with his current partner.

2. Q.       If so:

   ·would supervision ameliorate the risk? and

   ·if supervision is ordered, how long should that arrangement continue?

   A.Supervision is appropriate for a short period to cover the time when the father’s partner is giving birth in December 2019. The evidence supports a finding that the behaviour of the father deteriorated after the birth of the subject child in 2016 and relapsed into heavy drinking. Supervision until March 2020 is ordered as a precautionary measure.

3. Q.       Can arrangements be made for time and communication which are reasonably practicable?

   A.The child enjoys contact with the father via social media and that should continue.

4. Q.       Should parental responsibility be shared equally or allocated to the mother alone?

   A.The father has confidence in the mother as a good decision maker for the child. The evidence supports that view.

   The evidence of the Family Consultant suggest that the mother has at times appeased the father by agreeing to what he wants.

   In circumstances where the mother is well able to do so she should be free to make decisions without fear of conflict or criticism.

   Accordingly, the child will do best if the mother has sole parental responsibility and keeps the father advised of decisions taken.

The Applications

The Mother

1. By her Amended Initiating Application filed 9 May 2018, the mother seeks final orders providing for the child to live with the mother, for the mother to have sole parental responsibility and for the child to spend no time, and to have no communication, with the father.

2. In her oral evidence the mother was open to ongoing supervised time.

The Father

1. The father, in his Response filed 5 July 2018, seeks final orders providing for the child to live with the mother, for the parents to have equal shared parental responsibility, and for the child to spend substantial and significant time with the father from Tuesday to Thursday, a block of five days twice a year and on special occasions.

2. When the child commences school, the child to spend time with the father each alternate weekend and half school holidays and special occasions.

3. In his oral evidence the father acknowledged two things. First that with the change of residence for both parties travel is an issue. Second that if there was an order for time, at least initially the father would have to travel to the D City area.

4. As part of his submissions, the father tendered into evidence a Minute of Order[2] which provided for a more gradual and stepped regime of time culminating with one (two night weekend) per month and half school holidays and other special times.

   [2] Exhibit 16

Brief History of Relevant Events

1. In 2013 the parties commenced their relationship and began living together shortly after. They were aged about 17 and 22 years respectively.

2. In 2013 the father’s younger brother X died by suicide. The father has found the death of his brother unbearable. He has suffered from depression which has been both formally medicated with anti-depressants and informally medicated by alcohol and occasionally illicit drugs. His behaviour to others has been destructive and aggressive. The evidence suggests that he has recently begun to recover his equilibrium.

3. In November 2014 the mother suffered the miscarriage of an ectopic pregnancy  in a manner which put her life at risk. The father was unable to provide practical and emotional support for the mother who naturally felt let down. Soon after that loss, there was an eight month separation.

4. Over the next two to three years, the mother and father separated and reconciled a number of times. The mother states the erratic nature of the relationship, with several different residences and many separations was due to the behaviour of the father when affected by alcohol and drugs.

5. In late 2015 the father entered a rehabilitation program at Town K. The mother moved to Canberra to work, whilst remaining supportive of the father’s efforts. The parties began living together again when the father moved from rehabilitation to the mother’s residence in Canberra.

6. The father then obtained work on a property at Town L. By December 2015, the mother was pregnant with the subject child. She decided to leave Canberra and join the father.

7. The father drank heavily and began to have increasingly violent physical fights with friends and workmates. The father’s older brother Mr J arrived to stay on the property and as he and the father focused on the death of their late brother, drinking and conflict accelerated.

8. In July 2016, the parties left Town L and moved in with the mother’s aunt Ms M. The mother had lived with her aunt from age 11 for about six years, until she finished high school. The mother is close to, and very well supported by, her aunt.

9. The father behaved in an immature and petulant way in response to the expectations of the maternal great aunt; that he would help in and contribute to the household. He probably understood that the maternal great aunt did not consider him a suitable partner for the mother. The parties moved out soon after.

10. In 2016, the subject child was born and named after the father’s late brother. The parties lived together with the child in a rental property in Suburb N.

11. In November 2016 the father episodically became intoxicated. He would  threaten both to smash the house up and to kill himself and others. The difficulty for the mother, pre-occupied with caring for and ensuring the safety of the child is captured by her evidence as follows:

    I was doing everything. I would do all the housework, cooking and care of X. I felt like I was a single mother even when [Mr Darell] was there and that he was another child.[3]

    [3] Affidavit of the mother filed 4/10/2019, para 35

12. In early 2017, the father moved back to Town H, his home town. He encouraged  the mother to move there by promises and probably good intentions about changed behaviour. The mother obtained a house with a short term lease and resumed life with the father. The father began drinking again. Within four weeks the mother asked the father to leave. He did, but to the house next door with his older brother.

13. That separation was the final one for the parties.

After Separation

1. At Easter 2017 the mother’s younger brother was found in the street injured and bleeding. He was hospitalised for facial injuries. He told the mother that the friends and associates of the father had “bashed him”. The mother went straight to the father’s house to make enquiries.

2. The father and his friends were at home intoxicated. One man came out and threw a beer bottle at the mother’s head which missed hitting her. He was held back by the others. The father directed insulting derogatory names at the mother.[4] Police attended and advised the mother to leave town. She thereafter lived with the child mainly at her mother’s home in a nearby town. She arranged for the father to see the child on two conditions, that she was present and that he was not affected by alcohol.

   [4] Affidavit of the mother filed 4/10/2019, para 41

3. The father displayed his resentment on social media with a message purporting to be for the child, (then aged less than 12 months old):[5]

   I couldn’t say how much I love you my little man!! But hey ya cunt of a mother can’t keep us apart for eva!!!

   It was aggressive and immature.

   [5] Affidavit of the mother filed 4/10/2019, Annexure A

4. In June 2017, there was an incident which involved some misunderstanding. The mother arrived home with the child in her car. The father, still living next door, went over and took the child out of the car. He introduced the child to a visiting friend’s dog. The father knew the dog and was confident about its behaviour around children.

1. The mother saw the father bending over the dog with the child. She thought the father was intoxicated. The father denies he was. The mother snatched the child away from the father and, as she saw it, away from potential danger. The father was offended. He left the mother’s property, punched a brick wall on the way out and hurled a few insulting words at the mother.

2. As a result an Apprehended Violence Order (“AVO”) was issued to protect the mother from the father for 12 months.[6]

   [6] Affidavit of the mother filed 4/10/2019, Annexure C

3. Thereafter the father spent limited time with the child on an inconsistent basis. The mother moved to D City. The father could not travel the 260 kilometre distance to see the child as he did not hold a driver licence and there was limited public transport from Town H. The father was wary of breaching the protective order.

4. On 16 September 2017, the mother organised a first birthday party for the child. The father attended. The mother alleges the father and his friends got drunk at the party. The father denies he was drinking. Whether he was or not the significant matter for the child was that friends of the father should not have been invited by him to come along.

Proceedings commence – February 2018

1. On 12 February 2018, the mother commenced proceedings in this Court. At that time the mother was proposing relocation of the child with her to New Zealand in order to live with her companion at that time, Mr P.

2. The mother filed a Notice of Risk alleging the father perpetrated abuse and family violence to which the child was exposed both directly and indirectly, and asserting risk of harm in the father’s care.[7] The tenor of the orders sought were to terminate the relationship between the father and the child in order to start a new life in another country.

   [7] Notice of Risk filed 12/02/2018

3. Subsequently, due to the ending of that relationship, the mother no longer sought to leave Australia. In April 2018 she informed the Court accordingly and amended her application.

4. In April 2018 the relationship between the father and Ms F began.

5. In 2018 the mother’s child with Mr B was born.

6. On 8 August 2018, interim orders provided for the child to live with the mother and spend supervised time with the father. The father refused to attend the supervised time due to a conflict with two supervisors.

7. On 22 October 2018, a notation to interim orders allowed for a different service to facilitate supervised visits between the father and the child.

8. The father arranged for four visits with the child between 20 October 2018 and 5 April 2019.

9. On 5 April 2019, the parties attended mediation and agreement was reached for the father to spend more time with the child. This agreement broke down as the father was unable to get transportation from Town H to D City NSW.

10. The father arranged eight visits with the child between 5 April 2019 and 4 October 2019.

11. The parties have since arranged for the father to speak to the child each Saturday morning via Skype. This arrangement has become more frequent with the father calling without prior notification.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Applicant Mother – Ms Leacroft

   (a)Amended Initiating Application filed 9/05/2018;

   (b)Affidavit of Ms Leacroft filed 4/10/2019;

   (c)Affidavit of the maternal grandmother Ms O filed 4/10/2019;

   (d)Affidavit of the maternal great aunt Ms M filed 4/10/2019;

   The Respondent Father – Mr Darell

   (e)Response filed 5/07/2018;

   (f)Affidavit of Mr Darell filed 29/10/2019;

   (g)Affidavit of father’s partner Ms F filed 1/11/2019;

   Reports

   (h)Family Report dated 2/07/2019;

   (i)Children and Parents Issues Assessment dated 27/07/2018.

Oral Evidence

The Mother

1. The mother gave evidence in a straightforward way. I formed the impression that she not only answered honestly but strove to be fair to the father.

2. One example of this was during her evidence about incidents where the father was calling the mother and sending offensive and threatening messages to her. The mother was clear to say that there were verbal assaults, but no physical assaults.

3. Another example is this. When asked by me what the father had to offer the child “from his good side” the mother replied with a big smile, “He’s fun”.

4. Overall I came to the conclusion that the mother is genuinely open to a relationship between the father and the subject child. She is equally genuine in her fear of relapse by the father into drinking and drug taking which would put the child at risk in his care.

5. That fear comes from her own lived experience with the father and I take it into account.

The Maternal Great Aunt

1. The maternal great aunt is steadfastly dedicated to the welfare of the mother and the child. I am confident that her commitment will not change.

2. The maternal great aunt also assisted the father. She helped him to organise a payment plan for all his driving fines. He had lost his driver licence, as a habitual offender, until 2028. It is likely that the restoration of the father’s licence, which has now occurred [in July 2019], reflects to some extent that help in 2016.

3. The maternal great aunt recognised that the father was not sufficiently mature or stable to maintain a relationship as a partner with the mother. She encouraged the mother to prioritise safety for the child and is proud of her for having done so.

The Maternal Grandmother

1. The maternal grandmother was not required for cross-examination.

2. The evidence contained in her affidavit was directed to a current interim order which restrains the parties from allowing the child to have unsupervised contact with herself.[8]

   [8] Interim Orders dated 8/08/2018, Exhibit 1 Order 3

3. The order was made by consent of both parties without admissions. Subsequently there was a variation which permitted the maternal grandmother to assist at changeovers.

4. No party sought the continuation of such a restraint. Accordingly, whatever the risk issue was thought to be, it will be subsumed in the exercise of parental responsibility.

The Father

1. In his affidavit the father provided information about his own bleak childhood. When he was a very young child his mother left the family and did not return. His father and new partner drank heavily. His father punished he and his brothers harshly, often “belting” them.

2. It is apparent that his closest relationships were with his two brothers. I conclude that in that context the death by suicide of his younger brother which he described as having “affected us quite a lot” was likely to have been emotionally devastating for him.

3. With the assistance of the solicitor who drafted  his affidavit the father expressed his commitment to the child this way:[9]

   I want to be a source of support to X. I know how it feels to be abandoned because I was abandoned by my mother .I would like X not to have to go through feelings of abandonment. I do not want him to ever think I walked away from him. A child should never have to go through that and I will do what I can to protect him from that outcome.

   [9] Affidavit of the father filed 29/10/2019, para 32

4. The oral evidence of the father was consistent with that commitment.

5. In his own view the father has changed a lot. I accept that the father now knows “not to drink when he’s angry”. I also conclude that he underestimates the damage done to him by his upbringing and the death of his brother. He struggles to express himself emotionally and verbally, “I’d love to communicate well”.

6. He has not engaged with a skilled therapist because he wishes “to avoid bringing all those feelings up.”

7. The expert evidence of the Family Consultant properly raises the risks associated with not having “engaged in any therapeutic intervention to assist him to develop skills in coping emotionally with stress, grief and adversity in his life.”[10] The risk is relapse into alcohol abuse and recreational drug use.

   [10] Family Report dated 2/07/2019, para 171

8. The father has put his own life and the lives of others at risk by driving whilst intoxicated. He has fought with others as a matter of course.[11] He is rude and aggressive when he is drunk.

   [11] Exhibit 9

9. Presently the father is doing well and has made impressive changes in his life, especially at work where he has found a mentor, and in his current relationship. Now, for the future benefit of the child, is the time to address past damage.

The Father’s Partner – Ms F

1. Ms F presented as a thoughtful, honest and articulate young woman. She is 27 years of age, and in full time employment.

2. She has suffered from quite severe anxiety, including agoraphobia and social anxiety, which created a habit of using alcohol to attend events.

3. Ms F has a criminal record for assaults.[12] There was an incident in her late teens of pushing on a dance floor which did not lead to conviction. There was a more serious offence in 2017 which involved a young woman being injured by Ms F with a glass. As a result of the conviction for reckless wounding Ms F was dismissed from a job she loved.  Services. She is working to restore her position.

   [12] Exhibit 11

4. Ms F has sought and followed medical advice. She explained herself as follows: “I over-react. I feel like I’m in a more threatening situation than I am”.

5. Ms F has not experienced from the father any of the risky, offensive, intoxicated behaviour described by the mother. She was however aware of his criminal record.

6. I accept as genuine the wish expressed by Ms F to meet the mother and have a civil conversation with her. If a working relationship did develop between Ms F and the mother that would be of benefit to the child.

The Law

1. The objects of the Act in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(1) of the Act). The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question (s 61DA(2) and (4) of the Act).

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.

Parental Responsibility

1. There are reasonable grounds to believe that the father engaged in family violence as described in these reasons. To be clear, the father has not ever physically hurt or attempted to hurt the mother or the child, rather he has been verbally abusive, aggressive and threatening.

2. Accordingly the presumption of equal shared responsibility does not apply.

3. The mother has been responsible for the care of the child all his life and solely as a single parent since separation.

4. The father acknowledges by the orders he seeks, and by what he said to the Family Consultant[13] that the mother has the capacity to care for the child and make good decisions about his welfare.

   [13] Family Report dated 2/07/2019, para 88

5. There is some recent evidence of cooperation and consultation by the parties as parents, such as when the child was in hospital and guidance for gifts.

6. I am confident that the mother will keep the father advised of decisions about education and medical treatment. She has done so in the past.

7. The best interest of the child will be served by the mother remaining as decision maker on long term issues.

Primary Considerations

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

1. The child has his primary attachment to the mother. His meaningful relationship with the father is still developing.

2. The records of the C Organisation reflect a kind and reassuring approach taken by the father to the child who reacted well.

3. The observation of the father and child undertaken for the Family Report was of a more stilted and less empathic relationship.

4. The Family Consultant freely conceded after she had the opportunity to read the contact records that a warm relationship between the father and child has developed.

5. I conclude that there is a benefit to the child in maintaining the relationship with the father.

The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

1. The child needs protecting from the father’s angry side.

2. Unfortunately the young man who is the father of the mother’s younger child has an extensive criminal record for anti-social conduct but also for aggravated break and enter and possess, supply or make explosive.[14]

   [14] Exhibit 14

3. There is no evidence of direct harm to the child from Mr B but in circumstance where there is no ongoing personal relationship for the mother with him, there is no reason for the child to be in his presence unsupervised.

Additional Considerations

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. The child has close loving relationships with his mother, his younger brother and his maternal great aunt. The relationship for him with the maternal grandmother is less certain.

2. The child has an affectionate relationship with the father. He will soon have a new sister on his father’s side and could develop a close relationship with that child and Ms F if they are regular participants in time with the father.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. The father struggled to travel to D City relying on friends for transport.

2. The mother has at all times tried to maintain a relationship for the child with the father in safe circumstances.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. A change to unsupervised time will allow for more natural experiences for the child especially if Ms F and the new baby, in due course, participate.

2. The father would love to have the child stay with him in his home and to learn about living in the country. He wants  to teach him how to ride a bike.

3. Blocks of time away from the mother would be too much too soon.

The practical difficulty and expense of a child spending time with and communicating with a parent

1. The parties now live 260 kilometres apart, a three hour drive. It is a long trip for a young child and could only be justified if a period of two days or more was contemplated.

2. This  three year old child  would likely be very upset by such a lengthy separation from his mother. His developing confidence in his father could be unravelled by such an experience. Given time, if the father continued to stabilise his life, the child could manage and enjoy the experience.

3. Until there is agreement or further order of the Court, time spent will be in the local area of the child.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. The father has associated with young men, friends and family, who, as he does, live in a culture of heavy drinking, challenge and physical fighting.

2. The language habitually used by the father in anger reflects that culture. That language is not just derogatory, it is insulting and degrading.

3. In the last 12 months the father used a taser on his brother and allowed that to be filmed. He was in the vicinity when friends used cutting tools on the genitals of the father’s brother. These acts of casual cruelty were undertaken voluntarily by all parties, and reflect poorly, on all involved. Intoxication and boredom were factors but also unaddressed anger.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. The child was two years and eight months old when observed by the Family Consultant.

2. He was assessed to be “a contented child who appeared to present developmentally within normative parameters,” “X spoke at times in sentences, demonstrated social language skills and lovely manners such as ‘excuse me mummy’ and knew some of his colours”.[15]

   [15] Family Report dated 2/07/2019, para 151

If the child is an Aboriginal child or a Torres Strait Islander child

1. The child is an indigenous child through his mother and the matrilineal line of his maternal grandfather who are from western NSW.

2. The parents of the mother separated when she was five. She was raised primarily by her mother, not in that area.

3. The mother may choose to involve the child in the culture of his indigenous family members. That will be a matter for her.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

1. The subject child has been exposed to family violence.

2. The parties themselves as children were exposed to family violence. It may be that threat, insult and aggression was so familiar to both of them that it appeared inevitable.

3. It is to the credit of the mother that she sought police assistance in 2017 when the father was re-acting with hostility to the consequences of separation.

4. It is significant that there was no breach by the father of the AVO put in place during the 12 months it was in place.

Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

1. The orders which are made provide for unsupervised time in a regular monthly pattern but not overnight and not outside the local area of the child and the mother.

2. The father had pressed for time with him at this home for weekends and holidays once the child was school age.

3. If the father takes up all the opportunities to spend time with the child and does not revert to insult and threat towards the mother, her trust in him as a father to the child may grow.

4. If it does the parties could build on the more respectful conversations they have been having more recently and agree to expand parenting arrangements.

5. If the mother remains unsure, the father will need to return to the Court to vary these orders. He will need persuasive evidence: first, that his household is a safe place for the child and that hard drinking friends would not be present; next, that he himself no longer represents a risk of harm or neglect arising from impulsive behaviour fuelled by alcohol.

Conclusion

1. Orders are made which attempt to balance the risks associated with the past uncontained conduct of the father against the benefit to the child of an unfolding relationship with the father who is trying to be the supportive and loving parent that he did not have himself.

2. Orders are made accordingly.

I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 6 December 2019.

Associate:

Date:  6 December 2019