Longer & Longer
[2021] FedCFamC2F 279
•1 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Longer & Longer [2021] FedCFamC2F 279
File number(s): NCC 1606 of 2018 Judgment of: JUDGE BECKHOUSE Date of judgment: 1 November 2021 Catchwords: FAMILY LAW – parenting – parental responsibility –family violence – unacceptable risk – coercive and controlling violence – child with Global Developmental Delay and Autism Spectrum Disorder Legislation: Family Law Act 1975 (Cth) ss 4(1AB), 4AB(1), 4AB(2), 60B, 60CA, 60CC, 61DA(1), 65DAC, 102NA(2)
Evidence Act 1995 (Cth) s 140(2)
Cases cited: Blinko & Blinko [2015] FamCAFC 146
Briginshaw v Briginshaw (1938) 60 CLR 336
Deiter & Deiter [2011] FamCAFC 82
Finton & Kimble [2017] FCWA 106
Hardie & Capris [2010] FamCA 1046
Illgen & Yike [2018] FamCA 17
Jurchenko & Foster [2014] FamCAFC 127
M v M [988] HCA 68
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92Moose & Moose [2008] FamCACF 108
MRR & GR [2010] HCA 4
Newman & Tate [2020] FamCA 1114
U v U [2002] 211 HCA 36
Division: Division 2 Family Law Number of paragraphs: 204 Date of hearing: 2 - 4 August 2021 Solicitor for the Applicant: The Applicant in person Counsel for the Respondent: Ms Goodchild Solicitor for the Respondent: Fern Lawyers Counsel for the Independent Children's Lawyer: Mr Jackson Solicitor for the Independent Children's Lawyer: Brian Samuel & Associates ORDERS
NCC 1606 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR LONGER
Applicant
AND: MS LONGER
Respondent
ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
1 NOVEMBER 2021
ON A FINAL BASIS THE COURT ORDERS THAT:
1.All previous orders be discharged.
2.The mother have sole parental responsibility for the child X born in 2017 (hereinafter “the child”).
3.The child live with the mother.
4.The child spend time with the father as follows:
(a)On the last Saturday of each calendar month from 10am until 3pm conditional upon the following:
(i)Prior to the first scheduled unsupervised visit, the father must take the following steps:
A.Visit and observe the child in a setting familiar to her as nominated by the mother, and speak to one of the child’s treating health practitioners as nominated by the mother, about the child’s development and techniques for managing their behaviour.
B.In consultation with the child’s treating health practitioners, confirm with the mother the regular venue he proposes to use consistently when he spends time with the child.
(ii)The father provide the mother with no less than 14 days’ notice of an intention to attend such spend time with the child.
(b)When the child commences kindergarten, the parties will review the spend time with arrangements with the child’s treating health practitioners with a view to extending the father’s time by two (2) hours each month such that it concludes at 5pm, however such extension of time will not occur until the parties receive a recommendation in writing that supports the child’s capacity to tolerate the increase in time.
5.All changeovers will occur with the father collecting the child from the mother’s residence at the commencement time and returning her to the mother’s residence at the conclusion of time, or alternatively at the regular venue referred to in Order 4(a).
6.The child will have electronic communication with the father on a platform to be agreed each week, with such communication to be initiated by the father each Monday between 5.30pm and 5.45pm and the mother shall facilitate such communication and ensure that the child is available to communicate with the father at those times.
7.The father shall notify the mother of his inability to spend time with the child by providing the mother with 14 days’ notice in writing.
8.The mother shall provide to the father full particulars of any medical practitioner, health service provider or institution attended by the child and provide any authority or direction necessary to enable the father to obtain all necessary information concerning the child.
9.Both parties be permitted to liaise directly with the child’s school to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about her progress.
10.In event that either party changes their accommodation, they shall provide the other party with details of their new address as soon as practicable, but no later than 48 hours before moving into new premises.
11.The parties are to keep each other informed of their current mobile telephone numbers and email addresses and will notify the other party of any changes to those details within 48 hours of such a change occurring.
12.For the purpose of facilitating these Orders, the parties are to communicate with each other via email or text message, except in the event of an emergency, in which case the parties shall telephone the other as soon as possible.
13.Each party will immediately notify the other in the event of an emergency involving the child including, but not limited to, the child suffering a serious illness or injury or being hospitalised while in their care.
14.Each party shall as soon as is reasonably practical inform the other of:
(a)Any significant medical problems, illness or injury suffered by the child while in their respective care; and
(b)Any medication that has been prescribed for the child while in their respective care that needs to be administered during those periods that the child is with the other parent.
15.The child X born in 2007 be removed from the Family Law Watchlist at all points of international departure.
16.Pursuant to section 65Y of the Family Law Act 1975 (Cth), the mother, Ms Longer born in 1993, shall and is hereby entitled and permitted to remove the child, X born in 2007, from the Commonwealth of Australia for a period of no longer than four weeks at a time for the purpose of travelling to such destinations as she may desire.
17.Pursuant to section 65Y of the Family Law Act 1975 (Cth) the father, Mr Longer born in 1979, shall and is hereby entitled and permitted to travel with the child, X born in 2007, from the Commonwealth of Australia provided it is with the consent in writing of the mother.
18.In the event the father wishes to remove the child from the Commonwealth of Australia pursuant to Order 17 herein, then he shall seek the mother’s consent no less than 60 days prior to the departure date of such proposed trip and shall provide the mother with particulars including the proposed itinerary and proposed period of such trip.
THE COURT NOTES THAT:
A.Orders 3 and 7 to 14 are made by consent.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Longer & Longer has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The parties are the parents of X born in 2017 who is currently 3 years and 9 months.
ISSUES IN DISPUTE
The issues in dispute are:
(a)Whether the mother should have sole parental responsibility for X or whether equal shared parental responsibility between the parties, is in X’s best interests;
(b)What time X should spend with the parent she is not living with (and how); and
(c)Whether X should remain on the Family Law Watchlist.
At the commencement of the hearing there was an issue raised by the father about which parent X should live with. The father under cross-examination said that in the event that the Court made findings that X was at risk in the mother’s household or care, he was prepared for the Court to make an order that X live with him. This was also confirmed in his Case Outline document where he said:
In the father’s view, it is in the child’s best interests to live with him. However the father understands that such outcome is unlikely in given circumstances where the child has lived wholly in the care of the mother since birth. If it were not for the serious concerns for the child’s safety and healthy development, the father would be supportive of the child’s continuing residence with the mother.[1]
(As per the original)
[1] Father’s Case Outline filed 29 July 2021 (“Father’s Case Outline”).
By final submissions and after hearing the evidence the father consented to an order for X to remain living with the mother.
BACKGROUND
The mother, Ms Longer was born in Australia in 1993 and is aged 28 years.
The father, Mr Longer was born in 1979 and is aged 42 years. He is from a Country B cultural background.
The parties commenced a relationship in 2016 and began cohabiting in approximately 2016.
The parties were married in 2016.
After they married they moved in with the maternal grandparents in Suburb C, NSW and in February 2017 they moved to Suburb D in City E, NSW.
The parties first separated in October 2017 when the mother left the former matrimonial home and moved in with her parents.
The parties’ only child X was born in 2017.
On 7 December 2017 the parties separated on a final basis when X was one month old.
The father initiated proceedings on 25 May 2018 in the Federal Circuit Court in Newcastle seeking equal shared parental responsibility, that X live with the mother and spend time with him on a graduated basis.
The proceedings were transferred to the Sydney Registry of the Federal Circuit Court and on 20 December 2018 a Child Dispute Conference Memorandum was prepared. At that time the father was employed and residing in Country EE but intended to return to the City E area to live.
The father has lived interstate and overseas for periods of time since separation. He says that since this time he has visited the child at least once per month, when allowed by the mother. At other times he has been visiting the child up to twice per week as per court orders. At times when the father was unable to visit the child, he says that he has communicated with her via Skype, typically twice per week.
The mother deposes that the father travelled a lot during 2018 both prior to and after the father initiated court proceedings.
On 9 May 2019 interim orders were made for X to spend supervised time with the father at a contact centre. The first supervised visit took place on 13 June 2019.
In 2019 the father’s son F was born.
In 2019 the father married Ms G the mother of his son F. Ms G was born in Country H in 1999 and is 22 years old.
On 26 August 2019 further interim orders were made for X to spend unsupervised time with the father.
Following the father’s first unsupervised visit the mother alleged that X looked “passed out,…worn out and dehydrated”.[2] The mother took X to the doctor and was advised that she may have had “minor heat stroke” and “possibly heat exhaustion”.[3]
[2]Affidavit of Ms Longer filed 28 July 2021, paragraphs 105-106. (“Mother’s Affidavit”)
[3]Ibid.
In 2019 paediatrician Dr J assessed X as having a developmental delay.
In or around February 2020 the father relocated to Tasmania with his wife and their child, F.
A Family Report was prepared on 1 June 2020.
On 2 August 2020 X spent time with the father following five months of no contact due to COVID-19 lockdowns and subsequent state border closures. During this visit, the mother alleges that when X was returned to her care she appeared drowsy and was dressed in the father’s wife’s shirt.[4]
[4]Ibid, paragraph 113.
On 17 September 2020 orders were made for the father to communicate with X via Skype. The orders noted that the father was living and working interstate.
On 13 December 2020, the mother alleges that when she returned to collect X from spending time with the father she was only wearing a nappy and her jumper.[5]
[5]Ibid, paragraph 117.
On 7 July 2021 X undertook an online assessment through the Suburb K Early Childhood Assessment Team (PECAT) and was diagnosed with Global Developmental Delay (GDD).
On 27 July 2021 a Child Inclusive Conference Memorandum was prepared.
On 29 July 2021 X was physically assessed and diagnosed with Autism Spectrum Disorder (ASD).
On 2 August 2021 the matter proceeded to a final hearing over three days.
As at the date of the final hearing:
(a)The mother continues to reside with X, the maternal aunts (Ms L aged 21 and Ms M aged 19) and the maternal grandparents’ in Suburb C, New South Wales.
(b)The mother is in a relationship with Mr N born in 1993. He moved into the home in Suburb C in May 2021.
(c)The mother currently works two days per week and has commenced studying a Bachelor Degree at the O University.
(d)The father continues to reside in Tasmania with his wife and their son F. He said that they are expecting another child in the near future. The father has three children from previous relationships who live with their mothers; P aged 13, Q aged 11 and R aged 7.
DOCUMENTS RELIED UPON
Each of the parties provided Case Outline documents setting out the material relied upon.
The father relied upon:
(a)Affidavit of Mr Longer filed 25 May 2018;
(b)Affidavit of Mr Longer filed 19 September 2018;
(c)Affidavit of Mr Longer filed 13 February 2019;
(d)Affidavit of Mr Longer filed 30 April 2019; and
(e)Affidavit of Mr Longer filed 1 May 2019.
His Case Outline document was prepared on 29 July 2021 and is the most contemporary account of his position. His most recent affidavit was filed on 1 May 2019. He gave oral evidence at the hearing of changes in his living arrangements since the filing of that affidavit.
The mother relied upon:
(a)Response filed 11 September 2018;
(b)Notice of Risk filed 11 September 2018; and
(c)Affidavit of Ms Longer filed 28 July 2021.
The Independent Children’s Lawyer (ICL) relied upon:
(a)Child Dispute Conference Memorandum dated 20 December 2018;
(b)Family Report dated 1 June 2020; and
(c)Child Inclusive Conference Memorandum dated 27 July 2021.
I have also had regard to the material marked and tendered as exhibits.
EVIDENCE
On 1 February 2021 orders were made by Judge Boyle setting the matter down for final hearing. Her Honour ordered that:
7. The requirements of s 102NA (2) of the Family Law Act 1975 will apply to any cross-examination occurring in the proceedings.
THE COURT NOTES THAT:
8. There are allegations of family violence between the parties.
9. The parties have been advised by the Court:
a. that pursuant to these orders, neither party may cross-examine the other party personally;
b. that pursuant to these orders, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;
c. as to the availability of the Commonwealth Family Violence and Cross-Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and
d. that a copy of these orders will be provided by the Court to Legal Aid NSW, which administers the said scheme.
The mother subsequently arranged legal representation under the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”).
The father did not apply for representation under the Scheme but acknowledged his eligibility for the scheme in an exchange with counsel for the ICL:[6]
[COUNSEL FOR THE ICL]: Sir, you would have been aware that there were orders made by the court on 1 February 2021 that refer to – and I’m quoting here – paragraph 7: ‘The requirement of section 102NA(2) of the Family Law Act will apply to any cross-examination occurring in these proceedings.’
Now, I’m not suggesting this is a legal test for you, but do you understand that to mean that if there are any issues with family violence the court has discretion to permit you to have a representative representing you in these proceedings. Were you aware of that?
[THE FATHER]: Yes, I was.
[COUNSEL FOR THE ICL]: And you would have been aware that therefore you were entitled to have a lawyer represent you without you having to pay any fees – any private fess for the purpose of these proceedings?
[THE FATHER]: Yes.
[COUNSEL FOR THE ICL]: Is there a reason why you elected not to have a lawyer represent you then, under those circumstances?
[THE FATHER]: Because…responsibility not to waste public funds…torturing my former wife with cross-examination will probably not bring a dramatic improvement on my position.
[6]Transcript 2 August 2021, p.2 lines 16-34.
As a consequence, the mother was only cross-examined by the ICL. The father was invited at the conclusion of the cross-examination of the mother to put forward any questions that he would like asked of the mother. The majority of these questions were put by the ICL and he was invited to make submissions on some other matters.
Ms S, the Family Consultant was required for cross-examination.
Apart from the Family Consultant, the only witnesses called were the parties.
I will at this point make some comments on the parties and the credit of the witnesses.
The father is an articulate, engaging and intelligent man. Despite his decision not to instruct a lawyer, he managed his representation competently. As a witness he was thoughtful about the parental conflict and had no difficulty expressing his views on it and many other topics, even when he was not asked to comment on the issues. While I find that he gave honest evidence, he often lacked insight into his own behaviour and his impact on those around him.
I found the mother to be an honest and straightforward witness. She answered the questions asked of her directly and did not attempt to give self-serving answers. She was a credible witness.
The mother filed affidavits in support from the maternal grandparents, Mr T and Ms U. They required a Country V interpreter and none could be arranged. The father had filed an affidavit in support from Ms W but she was not available for cross-examination. Ultimately, these affidavits were not relied upon.
The Family Consultant prepared three reports in this matter as follows:
(1)Child Dispute Conference Memorandum dated 20 December 2018;
(2)Family Report dated 1 June 2020 (“Family Report”); and
(3)Child Inclusive Conference Memorandum dated 27 July 2021 (“CIC Memorandum”)
The Family Consultant did not interview X. The most recent reports were undertaken during the COVID-19 global pandemic. All meetings were conducted by telephone.
In the Family Report the Family Consultant made a range of recommendations premised on what findings the Court would make about the respective allegations of the parties and any findings of risk to X.
She attended court and was cross-examined. She gave strident and confronting evidence. Her evidence caused the father to assert that she “sounded biased” and he asked whether she had any personal experience (presumably as a victim of family violence). In his written submissions he sought that her evidence be dismissed saying:[7]
The family consultant appears to have excessive fixation on fighting patriarchy and made an impression that she won’t let facts get in the way of her story easily. In fact listening to her passionate constructions, I could help feeling for her – perhaps I wasn’t alone thinking that in her work she must be reliving some of her own trauma. I made it clear I didn’t mean to prey when I asked her whether she herself has been a subject to coercive control. If she hadn’t been subject to coercive control herself, it must have been some other traumatising experiences that let her to her emotive, extravagant performance at the cross examination. I am genuinely concerned that Ms S is not capable of objective assessment. It may be self evident, but I would like the court to dismiss her evidence and get another family consultant involved or take her evidence with a good pinch of salt.
(As per the original)
[7]Exhibit 9.
The Family Consultant addressed the father’s concern under cross-examination saying:[8]
My personal experience of family violence does not have any bearing on this matter. I have got experience having interviewed many, many men who have been determined to have been perpetrators of coercive and controlling family violence, and interestingly, most of them tend to lay the blame for their behaviour and what they’ve done at the feet of others like a Family Consultant, or any other person, because there’s an inability to see within themselves what’s truly happening - what the real issue is.
[8]Transcript dated 3 August 2021, p.11 lines 40 – 47.
She outlined her extensive experience in the field of family violence which includes:
(a)A Bachelor’s Degree in Social Work;
(b)Employment as a Family Consultant at the Federal Circuit Court and Family Court of Australia since 2016;
(c)Four years employment as a Principal Counsellor & Consultant at Y Counselling;
(d)Employment as a Child Sexual Assault Counsellor at Z Organisation; and
(e)Employment as a Family Support Officer at AA Group.
She confirmed that she herself has no lived experience as a victim of family violence.
The Family Consultant gave helpful evidence. She is well qualified to express opinions in this area given her specialised knowledge based on her training, study and experience.
However, her evidence was complicated by the release of the PECAT assessment report about X after her three reports had been written. X’s diagnosis of GDD and ASD adds another layer of complexity to the matters before the Court, especially the assessment of risk.
Under cross-examination, the Family Consultant helpfully answered questions about X’s development, the recent diagnosis made in the PECAT report and its impact on her recommendations. But at times she drew conclusions about risk that, on the evidence, could not be drawn. This led counsel for the ICL to submit that I should not place great weight on the evidence she gave under cross-examination.
Ultimately, it is a matter for the Court to assess and review the evidence and make findings about significant matters in dispute. In reaching my conclusions, I have treated with caution some of the oral evidence the Family Consultant gave under cross-examination and where I have departed from her recommendations, I have outlined why.
PROPOSALS
I will now consider the parties’ proposals.
At the commencement of the trial, the mother’s proposal was as follows:
(a)that she have sole parental responsibility for X;
(b)that X live with her; and
(c)that X spend time with the father as determined by the Court to be in her best interests but says that the father should only be granted overnight time with X when she is older, or otherwise when the father returns to Sydney from Tasmania.
After the father had given his evidence, a minute of orders sought by the mother was prepared and tendered as Exhibit 2. However, after hearing the evidence of the Family Consultant, the mother tendered a new minute of orders sought. In that document she sought more specific orders namely:
(a)that X spend time with the father every last Thursday of the month for a period of not more than two hours supervised by BB Families or any other supervising agency, and the costs of the supervision and any report are to be met solely by the father;
(b)that the father is to notify the mother of his inability to spend time with X within 28 days’ notice in writing;
(c)that changeover is to occur at the mother’s residence with the supervisor collecting X for the commencement of time and the supervisor returning X to the mother’s residence at the conclusion of time;
(d)that X has Skype communication with the father with such calls to be initiated between 11.00am -11.15am each Monday and the mother is to facilitate such communication and ensure that X is available to communicate with the father at those times;
(e)orders to facilitate the ongoing communication between the parties about matters pertaining to X;
(f)an order permitting the mother to remove X from Australia for travel at her discretion; and
(g)an order restraining the father from removing X from Australia and requiring that X’s name be included on the Family Law Watchlist for this purpose.
The father proposes that:
(a)the parents have shared parental responsibility;
(b)X live with the mother, and spend time with the father graduating up to a half of each school holidays as well as each second weekend outside school holidays; and in the alternative, that she lives with the father; and
(c)X’s name be removed from the Family Law Watchlist.
The ICL, having considered all of the material filed and the evidence given during the hearing, prepared a minute of order on the final day of the hearing. The ICL proposes that:
(a)the mother have sole parental responsibility for X;
(b)X live with the mother;
(c)X spends time with the father for five hours once a month, progressing to eight hours once she commences school, with further specified phase in arrangements to increase the father’s time;
(d)X have electronic communication with the father for 15 minutes twice a week; and
(e)specific orders to facilitate the ongoing communication between the parties about matters pertaining to X.
THE CHILD - X
Before applying the law, information as to X, the subject child of these proceedings, needs to be captured.
X is currently 3 years old and will turn 4 this year.
At around 15 months of age X was assessed and diagnosed with GDD. Concerns were also raised about X’s “social abilities and communication”.
The mother has been referred to the National Disability Insurance Scheme (NDIS) and the “Life Start” program, which reportedly led to funding for various other assessments conducted by the PECAT diagnostic and assessment service, and the commencement of speech, occupational and behavioural therapy.
The PECAT assessment was tendered and provides critical information about X’s level of functioning. The report concluded that X “satisfies DSM-5 criteria for Autism Spectrum Disorder requiring very substantial support (level 3)”.
Of her current abilities, the PECAT assessment noted:
(a)X’s vocabulary is currently limited to “two or three simple words” but has difficulty expressing what she wants;
(b)She can follow familiar one step instructions;
(c)X prefers to play in insolation. The mother states that she does not “acknowledge people around her”;
(d)She wears nappies day and night;
(e)She needs assistance with dressing;
(f)She has limited danger awareness and has runaway previously in unfamiliar environments;
(g)She can become upset when separating from her mother;
(h)She has frequent temper tantrums;
(i)She can be fussy about her food; and
(j)She has sensory aversion to loud and unfamiliar noises and can become agitated.
The mother has also consulted with a second Paediatrician, Dr CC. Dr CC recommended that X commence day care. X now attends family day-care one day per week. The mother has applied for funding for a support person.
The father accepts the diagnoses that have been made of X. However, he raises the possibility that her symptoms are “similar to those manifest in abused and traumatised children.”[9] He therefore raises the possibility that X “is at an unacceptable risk of harm in a household undoubtedly plagued by physical and other abuse and severe mental health conditions.”[10]
[9]Father’s Case Outline (n 1), page 4.
[10]Ibid.
The father in his affidavit of 30 April 2019 at paragraph 2 said:
Despite the obstacles, X and I have a growing relationship. When I visit, she welcomes me with smile and arms stretched out. She cuddles me and leans forward to touch her face with mine in baby ‘kisses’. I bring her her favourite food (berries) and presents, and we spend time reading books and playing with toys.
(As per the original)
THE LAW
The principles governing the determination of competing parenting applications are set out in Part VII, Family Law Act 1975 (Cth) (“the Act”).
When making a parenting order, the Court must consider what is in the best interests of the child pursuant to section 60CA, but, as succinctly put by Justice Murphy in Hardie & Capris [2010] FamCA 1046 at [48]:
‘Best interests’ is not the application of a theoretical construct, but, rather, the practical application of a number of considerations relevant to the individual needs, desires, health and aspirations of the particular child of this parenting relationship.
As discussed by the Full Court in Moose & Moose [2008] FamCACF 108 at [66], the role of the judicial officer in making orders which are in the best interests of the child is to determine the best interest having regard to:
the matters set out in s 60CC(2) and (3) guided in consideration of the provisions by the objects set out in s 60B(1) and the principles underpinning it contained in s 60B(2).
As for the primary considerations, in the leading authority of Mazorski & Albright [2007] FamCA 520 (“Mazorski & Albright”), Justice Brown refers at [3] to such considerations as the “twin pillars” where:
(a)The first pillar is the importance of children having a meaningful relationship with both parents; and
(b)The second pillar is the need to protect children from physical and emotional harm.
The Court must balance the benefit to X of having a meaningful relationship with her father with the primary consideration of protecting her from physical or psychological harm, and from being subjected or exposed to abuse, neglect or family violence.
The concept of “a meaningful relationship” has been discussed in many authorities, most significantly by Justice Brown in Mazorski & Albright. Those authorities establish that “a meaningful relationship” is a qualitative concept. The relationship is not measured simply by the amount of time a child is spending with each parent, but the quality of the relationship that exists between a child and parent.
The distinct pathway which applies to parenting matters where an equal shared parental responsibility order has been made was the subject of much discussion by the High Court in MRR & GR [2010] HCA 4. This pathway does not take on as much significance here, because the father is not seeking orders for substantial and significant time with X.
For the sake of context, I will deal with the secondary additional considerations under s 60CC (3) of the Act prior to drawing them together with the primary considerations in a final analysis as to what orders are in the best interests of X.
ADDITIONAL CONSIDERATIONS
Section 60CC(3)(b)The nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
The mother has been X’s primary carer and attachment figure throughout her life. X also shares a close and loving relationship with her maternal grandparents and aunts who she has lived with since birth. It has been observed that the mother has “good support from her boyfriend, parents and extended family”.[11]
[11]Mother’s Affidavit (n 2), Annexure J, p.49.
The father has had little involvement in X’s day to day care due to the periods of time he has been living interstate, overseas or travelling. On the impact of this, the Family Consultant observed at [84] of the Family Report that:
[I]t is not surprising that there were previously some difficulties encountered in relation to X forming and solidifying an attachment relationship with Mr Longer because he has been either unable or unwilling to commit to a schedule of ‘time’ as has been determined by the Court to be in X’s best interests. This is regrettable and does seem lacking in child focus. If Mr Longer is unable to ensure he spend regular and consistent time with X moving forward, this would potentially cause X considerable confusion and stress in her relationship with him and, ultimately, she may become resistant to spending time with him entirely.
The involvement of the parties in X’s day to day care led the Family Consultant to conclude at [89] that:
[f]or X, it would likely be extremely stressful to spend extensive periods away from her mother, at least at this time, and she would be considerably vulnerable to experiencing symptoms of anxiety, grief and loss if separated from her mother.
The Family Consultant supported the father spending time at the paternal residence because it would provide X with an opportunity to develop more meaningful relationships with her father, his wife and other paternal family members.
The mother has demonstrated her capacity and eagerness to provide for the needs of X and encourage her emotional and intellectual development.
The PECAT report observed that:
(a)“[the] mother has diligently formulated a comprehensive early intervention program consisting of speech therapy, occupational therapy, positive behaviour support and a supported playgroup.”[12]
(b)“Ms Longer should be commended for her efforts in formulating this program.”[13]
Section 60CC(3)(c) The extent to which each of the child’s parents has taken or failed to take the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; (ii) to spend time with the child; and(iii) to communicate with the child[12]Exhibit 3, p.9.
[13]Ibid.
The mother says that despite the father’s absence from X’s life, she has continued to encourage the father to maintain a relationship with her. The history of the father’s interaction with X can be summarised as follows:
(a)The parties separated when X was one month old. At that time the father was living in City E and the mother in the Region DD. The father visited X in the presence of the maternal grandparents at least weekly and sometimes twice each week.
(b)In May 2018 an issue arose between the parties following the father’s visit with X. Shortly after this the father commenced proceedings in the Newcastle registry.
(c)The father had only limited interaction with X between May 2018 and March 2019 as he was living in Country EE. It was noted that X became distressed when she first saw her father due to being unable to identify him, particularly after long periods of absence without contact.
(d)In March 2019 the father attended at the mother’s home unannounced seeking to see X. When the mother indicated that he could not spend time with X, he contacted the police who later conducted a welfare check.
(e)On 9 May 2019 interim orders were made for the father to spend time with X at a supervised contact service, FF Contact Centre, two hours each week. The mother says that the father attended sporadically.
(f)In August 2019 the father’s time with X progressed to unsupervised time in three hour blocks. The mother raised some concerns about the father’s care for X during these times.
(g)During 2020 the father visited X on eight occasions. The mother also gave evidence about some concerns she had about the father’s care of X during some of these visits.
At the time of the hearing the father had spent time with X on two occasions in 2021. He communicates with X regularly via videoconferencing although the mother has described this as “inconsistent”.
The mother argued that the father has voluntarily opted to remain absent for long periods of time without taking the opportunity to spend time or communicate with X. The father admitted that there were a range of factors that contributed to his availability to spend time with X. In 2019 he welcomed the arrival of a new child, F. He remarried and moved to Tasmania in early 2020. For part of 2020 he was unable to visit NSW due to restrictions on travel arising from COVID-19. He has been building a home in Tasmania and establishing a business there.
The Family Consultant observed at [84] of the Family Report that:
[i]f safe to do so, it would be in X’s best interests if Mr Longer commit to spending time with her on a regular basis and Ms Longer support and facilitate this. This would ensure that the child/father emotional bond can be further strengthened, a lasting and meaning relationship nurtured, and a reliable and consistent parenting plan maintained, which would better support X’s development, and likely provide Ms Longer with considerable reassurance.
The father was asked what time he realistically thought he could spend with X in future given his relocation to Tasmania. He hoped to attend NSW more regularly and could commit to visiting X on the last weekend of each month. He was adamant that supervised time was unnecessary.
The mother argued that since their separation and throughout the course of these proceedings, “the parties have had significant and enduring conflict in their communication and have struggled to make shared and equal long-term decisions about the child and associated parenting arrangements”.[14]
[14]Mother’s Case Outline filed 30 July 2021 at [40] (“Mother’s Case Outline”).
The mother has been constantly engaged with a range of services for X and has provided the father with reports and other information in relation to her diagnosis and treatment. In September 2020 the mother organised for the father to attend X’s speech therapy session.
Apart from the speech therapist, the father does not appear to have met with or spoken to any of X’s therapists, educators or medical practitioners. Of more concern, was the father’s views about the GDD and ASD diagnosis under cross-examination by counsel for the mother. While accepting both diagnoses and the substantial support X requires, he said that he had some doubts about the opinions expressed in the reports. He said that he had done his own research of reliable sources and was concerned that X’s GDD and ASD was possibly caused by abuse or trauma from within the mother’s home. I find there was no evidence to support this and remain concerned that this response may inhibit the father’s ability in the future to participate equally with the mother in making decisions about major long-term issues for X.
The mother and the ICL both seek orders for sole parental responsibility to the mother and refer me to the Family Report and updated CIC Memorandum which gives clear and unequivocal support for such an order. Not least because the conflictual relationship between the mother and father would make the sharing of parental responsibility challenging.[15]
Section 60CC(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
[15]See Family Report dated 1 June 2020, paragraph 91; Child Inclusive Conference Memorandum dated 27 July 2021.
The father said that he pays the minimum amount of child support through the Child Support Agency. Presumably he also pays child support for his three older children from previous relationships.
At the time of the hearing he received government benefits and derived a small income from his work but anticipated that his income would increase to allow him more regular trips to NSW to see his four children who reside here including X.
Section 60CC(3)(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There is an obvious practical difficulty for the father in spending time with X. Putting to one side COVID-19 interruptions, there are difficulties created by both geography and circumstance. The father has a new, young family in rural Tasmania and is establishing a life for them there. He accepts that X is unlikely to be able to travel to Tasmania in school holidays to visit him, as her half siblings would.
The mother receives financial assistance from her parents as well as government benefits, and currently works two days per week. She is unlikely to be in a position to facilitate X spending time with the father in Tasmania, even if it was considered to be in X’s best interests.
The ICL submits that due to the mother’s limited means and the father’s decision to move to Tasmania, the father should continue to fund any travel costs associated with visiting and spending time with X. This is a reasonable proposition.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
Both parties challenged each other’s capacity to provide for X’s emotional and intellectual needs. The mother has demonstrated her capacity to meet X’s needs in an exemplary manner and can only be congratulated for her focus and dedication. The father, while more absent from her life, says that his family “brings to the table other important attributes, such as professional education and culture.”[16]
[16]Exhibit 9.
The mother has consistently demonstrated a responsible attitude to the responsibilities of parenthood. She has cared for and attended to X’s needs, and ensured that she has a safe, stable and supportive home life. This is contrasted with the father who has had little involvement in X’s emotional and intellectual development.
The mother submits that during her marriage with the father, he had little involvement in the care of his older children, and sought assistance from her to care for them. In this way, the mother says that she became largely responsible for the care of the father’s older children when they spent time with him during the weekends.
I do not accept that the father has had little involvement in the care of his older children. He has sought to continue to be a significant figure in their lives, and in X’s, notwithstanding his distance from them. Indeed in his written submissions the father says that:
[f]rom experience and observations of the emotional, psychological and developmental differences in my first 2 children and my third one, the more the court orders enable and encourage positive co-parenting, the better off X will be.[17]
[17]Exhibit 9.
The father raised concerns about the mental health of the mother and her parents. The mother receives counselling from her psychologist and does not experience any mental health issues that would impact her capacity to provide for the needs of the child. The mother has been proactive in taking steps to ensure that her own psychological needs are taken care of, so as to enable her to support and care for X.
Section 60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
These matters have been addressed above.
Section 60CC(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
X lives in a bilingual household. Her grandmother was born in Country GG and her grandfather in Country HH. It is reported that she speaks more Country V than English.
The father is of Country B cultural background. His wife was born in Country H and speaks Country V.
He has four children from previous relationships. F is two and lives with him. He is expecting a new child to be born shortly. His other three children reside in the City E area with their mothers. When he travels to see X he also arranges to see and spend time with his other children. At [82] of the Family Report the Family Consultant stated that:
X does have a right to experience relationships with other paternal family members, notably her half-siblings, and knowledge and information concerning her paternal history, customs, beliefs and traditions. These all inform important aspects of X’s identity formation and self-concept.
Section 60CC(3)(j) Any family violence involving the child or a member of the child's family
While there are no previous or current family violence orders in relation to either parent or X, both parties make serious allegations against the other in respect to family violence as well as psychological, emotional and financial abuse.
The father alleges that he experienced family violence at the hands of the mother including:
(a)In February 2016 in City E the mother forcibly pushed the father's head to one side when he was lying down. He became partially paralysed for some moments and has felt discomfort in the affected place for over a year.
(b)In the first half of 2016, the mother pushed or punched the father in the solar plexus and other parts of body on multiple occasions. One such incident occurred in July 2016 in City JJ.
(c)On 24 December 2016 the mother bit the father’s forearm. He emailed her a photo of the wound and she responded “good that’s what I like to see.”
(d)Shortly before 31 December 2016 the mother punched the father in his right arm. He emailed her a photo of the resulting bruise.
(e)On 15 February 2017 in City E, the mother forced her fingernails into the father’s left thigh causing minor bleeding and leaving a scar.
(f)Shortly before 24 February 2017 in Town KK, the mother threw a car key hitting the father in the head.
(g)On 7 May 2017 the mother called the father “asshole” and “dickhead” in the presence of his children. He emailed her about it later.
(h)On 31 May 2017, the mother called the father a “piece of shit”, hit him and threw a chair in his direction. She later blamed him for her actions in an email.
(i)While living in Suburb D, the mother forcibly prevented the father from leaving a heated argument and he threatened to call the police.
Ultimately the primary risk that is pressed by the father is that he was the victim of physical violence, and controlling and coercive conduct at the hands of the mother during the relationship. He says for example, that she prevented or discouraged him from spending time with his circle of friends during their marriage. On that basis, there is a risk that she may engage in similar conduct in future relationships, and in doing so may expose X to family violence.
The mother alleges that there was a pattern of behaviour and conduct by the father that was coercive and controlling or that caused her to be fearful. In support of this her evidence is that:
(a)There was a power imbalance between the parties - she was young and naïve when the relationship commenced and there was a 14 year age gap between them.
(b)She experienced verbal and physical abuse at the hands of the father during the relationship.
(c)He denigrated her and was disrespectful towards her family members and cultural background.
(d)The father allegedly exerted control over her by:
(i)controlling and monitoring all of her expenditure during the relationship;
(ii)giving her directions on how she should dress and behave around other men;
(iii)setting rules about her conduct and behaviour and employing biblical quotes to guide her behaviour; and
(iv)threatening to have X removed from her care during the relationship, and continuing “to wield this sword” by the position he takes in these proceedings.
Did either party engage in coercive and controlling behaviour?
Family violence is defined in s 4AB(1) of the Act as follows:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(Emphasis in original)
Section 4(1AB) defines member of the family to include former spouses and former de facto partners. This means that the behaviour could constitute family violence whether directed to the child or grandparents or the parties.
Section 4AB(2) gives, as an example of conduct that may constitute family violence, “preventing the family member from making or keeping connections with his or her family, friends or culture.” However, such behaviour only becomes family violence where the quality of that conduct meets the description in s 4AB(1).
In Illgen & Yike [2018] FamCA 17 at [123]-[125] Justice Gill analysed the terms “coerces or controls” in the following manner:
123. Coerce is defined in the 7th Edition of the Macquarie Dictionary relevantly as
1. To restrain or constrain by force, law or authority; force or compel, as to do something. 2. to compel by forcible action
124. Control is defined in the 7th Edition of the Macquarie Dictionary relevantly as:
1. To exercise restraint or direction over; dominate; command
125. The phrase ‘coerces or controls’ is expressed disjunctively. However it may be seen that the two concepts are closely related. Together they form an expanded concept of the exercise of power, to restrain another or to cause another to act, by force, domination or command.
Generally coercive control is understood as a course of conduct aimed at dominating and controlling another person.
Even if we accept the father’s evidence that there were occasions when the mother intentionally caused physical harm to him, and that his circle of friends diminished during the relationship, he needs to demonstrate that the mother’s conduct caused a negative response in him (such as, that he felt compelled to take actions against his will or that he felt dominated by the mother or that she caused him to fear her). Additionally he needs to demonstrate the mother’s ability to control him.
The mother presented as softly spoken. Her counsel asserted that when she entered the relationship with the father she was naïve, sheltered, young and most likely impressionable. The father himself describes the mother as “an anxious person, emotional, excitable, relatively narrow minded and, at least during our relationship, quite immature and dependant on her parents”.[18] The father’s evidence fell well short of establishing coercive control on the part of the mother.
[18]Exhibit 9.
Notably when the Family Consultant gave evidence, the father asked her to comment on his experience of family violence during the relationship and specifically his allegation that the mother had committed “nine incidents of physical violence…along the lines of bites and bruising documented by photographs”. She observed in response: [19]
Well, remarkably, bites, scratches and so on are very commonly identified on victim survivors of family violence. It’s one of the things that is often used by perpetrators in a court. You know, they will very often admit to lower-impact crimes and very often claim that, you know, they’ve been abused and evidence bites and scratches as evidence of that. So the reason I’m saying that is that based on the mother’s evidence, you can’t discount that it has been in response to frustration, stress, angst, potentially, you known, anxiety, around her experience of you.
[19]Transcript 3 August 2021, p.10 lines 34-43.
The father asks that I find the mother’s allegations to be “vague, generic accusations” and that I should not accept her account of the family violence because she “failed to provide a single specific account of an actual abuse.” Indeed he criticised the mother for “wielding the coercive and controlling victim card”.
His submission and indeed the manner in which he conducted his case failed to appreciate the complex nature of coercive and controlling conduct and its impact. Behaviour described as coercive and controlling is rarely a single incident, but rather a pattern of behaviour.
The Family Consultant supported this in the Family Report at [35] saying the mother “depicted a relationship in which she were subjected to dynamics of power, control, domination, sexual jealousy and insecurity, and an array of other psychological abusive tactics.”
Of the father’s capacity to exert control and dominance the Family Consultant made a number of observations at [77] of the Family Report that would evidence that the father “had an attitude of ownership and authority in the parental relationship.” She concluded that “considerable social science research indicates that a lot of the things Mr Longer has done meet the criteria for coercive, controlling family violence”.[20]
[20]Transcript 3 August 2021, p. 6 lines 3-4.
While I have been unable to make findings on every incident alleged by the mother, I found her evidence on the issue was credible. She is supported by the opinion of the Family Consultant. I find that she experienced family violence in the relationship in the form of coercive and controlling behaviour.
Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The avoidance of further litigation is a matter that counsel addressed me on. This is a difficult matter because of X’s age and disabilities. Not only are the long term implications for X unknown, I cannot be sure of the father’s capacity to manage her behavioural challenges into the future, especially if he is unable to establish a regular and consistent pattern of spending time with her.
The mother seeks an order for the father’s time to be supervised. The ICL cautioned against me making a long term order for supervision. In all likelihood it would lead to further litigation.
The avoidance of further litigation also motivated the mother to seek orders with respect to obtaining a passport for X and undertaking travel outside the Commonwealth of Australia.
Section 60CC(3)(m) – any other fact or circumstances the court thinks is relevant
In his minute of order the father sought an order restraining the mother from changing X’s name. This was the first time that the issue had been raised and there was no evidence led on the issue by either of the parties. For this reason I decline to make such an order.
PRIMARY CONSIDERATIONS
Meaningful relationship
Section 60CC(2)(a) of the Act requires me to consider the importance of X having a meaningful relationship with each of her parents. On the other hand, I must consider the issue of the risk associated with her being exposed to harm or abuse in the care of either of her parents.
In McCall & Clark [2009] FamCAFC 92 at [122], the Full Court said:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child's best interests.
In Finton & Kimble [2017] FCWA 106 at [37], Justice Walters said:
The Court is required to consider, as one of a large number of factors, the benefit to the child of having such a meaningful relationship.
In that decision, his Honour referred to several other authorities, including the Full Court decision in Jurchenko & Foster [2014] FamCAFC 127 at [123] where the Court noted that:
… having a ‘meaningful relationship’ with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
Both parties accepted that X should have a meaningful relationship with the father. The challenge in this case is how this can be achieved in a manner that is in X’s best interests and without risk.
The Law as it applies to cases about risk
In the case of Deiter & Deiter [2011] FamCAFC 82 at [61], the Full Court indicated that, in assessing risk I have to look at two elements: “the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.”
In making a prediction of whether risk is likely to occur I need to be reasonably satisfied of it. As observed by Justice Dixon in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362:
…reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
More correctly, the approach is now contained in s 140(2) of the Evidence Act 1995 (Cth) which is generally to the same effect and states:
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged.
In Newman & Tate [2020] FamCA 1114 DCJ McClelland at [92] provides a useful summary of the full range of principles to be applied when determining whether an unacceptable risk, in terms of s 60CC(2)(b) of the Act, exists. He observes:
Determining the issue of risk essentially involves applying a risk matrix whereby it is necessary to assess the potential seriousness of the harm in the context of the probability of its occurrence. That is, there is an obligation on a trial judge to evaluate, not only the extent, magnitude and nature of the harm that might befall the child if there is a future act of abuse or harmful conduct, but also to evaluate the prospect or probability of such an act or conduct occurring that would cause such harm to the child
He also goes on to observe that:
The Court may reach a conclusion of ‘unacceptable risk’ from the accumulation of factors…
Finally, having identified the existence of an unacceptable risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”: see Blinko & Blinko [2015] FamCAFC 146 at [83].
Discussion of risk
There are risks alleged by each parent in this matter.
The father relies on multiple affidavits and his Case Outline document where he has at various times alleged a range of risks for X in the care of the mother including:
(a)The paternal grandfather previously abused alcohol and was a “violent alcoholic”.
(b)The paternal grandfather is anxious and paranoid evidenced by his behaviour of padlocking the doors of his house at night.
(c)The mother does not support his relationship with X.
(d)The mother suffers from mental health issues, particularly anxiety which causes her to not support his relationship with X.
However, by the time of the hearing and under cross-examination he took the following view as to the risks that each posed:
(a)In relation to the allegations of past physical violence by the mother, he acknowledged that the last incident he referred to was over four years ago and not in X’s presence, but noted that the mother has entered a new relationship and may have similar problems.
(b)Of the other risks referred to in the father’s material he acknowledged that they are not as much of a concern now – he has never seen the maternal grandfather use alcohol and is not sure if he still padlocks the house at night. The father also conceded that in recent times his relationship with the mother has improved.
(c)There was extensive evidence given about X’s special needs and the various services and therapies she is engaged with both externally and in her home. The father conceded that she is well cared for by the mother and he has no current concerns about her safety and care.
(d)He maintained that he was the victim of coercive and controlling behaviour at the hands of the mother during their relationship because she isolated him from his friends and caused physical harm to him during the relationship. As outlined earlier, having considered the evidence, there is no basis upon which I can make such a finding.
At the commencement of the hearing the father proposed that if the Court finds there are “serious concerns for the child’s safety and healthy development” in the mother’s household he is prepared for the Court to make an order that X live with him. However as outlined earlier, the father ultimately conceded that X is well cared for by the mother and that he has no current concerns about her safety.
The Court also has no concerns about X’s care in the mother’s household and does not accept that she is at risk of harm in the mother’s household.
The mother alleges that:
(a)The father has mental health issues and a personality dysfunction.
(b)The father abuses alcohol and has an irresponsible and erratic driving style.
(c)The father’s lacks a protective instinct towards his other children.
(d)There was a pattern of abuse and coercive control during the parties’ marriage.
(e)There is the potential for future psychological abuse of X due to his tendency towards prolonged periods of absence without contact.
(f)The father has unacceptable views about and does not want X exposed to these.
In the course of the hearing, other than the mother’s affidavit evidence, no other evidence supported the assertion that father has a mental health issue that poses a risk to the child.
The mother conceded that she had seen the father under the influence of alcohol on two occasions and that she did not realistically press his alcohol consumption as a risk. Nor was his irresponsible or erratic driving pressed as an ongoing risk.
The parties have different and contrasting attitudes to their responsibilities as parents. They bring different parenting styles to the upbringing of X. The mother is a cautious and anxious parent. By contrast, the father approaches parenting in a more relaxed manner. The mother is concerned about what she perceives is the father’s lack of a protective instinct towards his other children but this is not pressed as an ongoing risk issue.
The father seems to have limited insight into this dynamic. The mother might have felt more secure had the father made enquiries with X’s treating medical, allied health professionals and educators about her progress or had he sought assistance on strategies to manage her when in his care. But he has not. The mother might have felt more confident had the father acknowledged in his affidavit material or submissions the challenges that parenting X present now and into the future. He has not done this either.
However, the decisions that have to be made in this case go beyond parenting styles. They have to be grounded in the risks that are present and how, if at all, those risks can be mitigated.
The principal risks for X that emerged over the course of the hearing are:
(a)whether the father’s views about women and sexuality have the potential to place X at risk;
(b)the risks arising from the coercive and controlling behaviour exhibited by the father;
(c)the risk that the father’s lack of frequency and consistency in visits causes psychological harm to X; and
(d)the risk that the father cannot manage X.
The mother in her affidavit material raised concerns that the father sexualises girls. Whilst the father’s recent preference for younger partners may support her concerns, I was not satisfied on the evidence, that the father’s views about women and sexuality have the potential to place X at risk.
Considerable evidence was led about the father’s ability to have frequent and consistent visits with X and the risks that might arise if he is unable to do so. The Family Consultant at [84] of the Family Report observed that if it was safe to do so, it would be in X’s best interests for the father to spend time with her on a regular basis as it would ensure “the child/father emotional bond can be further strengthened, a lasting and meaningful relationship nurtured, and a reliable and consistent parenting plan maintained, which would better support X’s development…” She also cautioned that if the father is unable to spend regular and consistent time with X this would “potentially cause X considerable confusion and stress in her relationship with him and, ultimately, she may become resistant to spending time with him entirely.”
I note that the father has been consistent in his efforts to maintain and develop a relationship with X since her birth. Whilst he might be criticised for putting the needs of himself above the needs of X, and in doing so failing to establish a consistent spend time with regime, I accept that he has been a consistent figure in her life. Notwithstanding his six months in Country EE, his travels around Australia and his relocation to Tasmania, he has continued to visit X and develop his relationship with her. This causes the Family Consultant to conclude at [82] of the Family Report that:
[d]espite Mr Longer’s limited time with X, it would appear that X is comfortable in his care and she has the foundations of a relationship with her father who has been involved in various parenting tasks during ‘time’ and appears to be invested in knowing and raising her.
Provided he continues to speak with her on a regular basis and visit her in accordance with the orders, I am confident he will continue to nurture the relationship.
I have outlined extensively in this judgment the challenges that X faces. The Family Consultant considered them somewhat briefly when she undertook her report but her interviews took place prior to the most recent PECAT assessment report being released. The ICL and the father were of the view that there is no significant risk of the father being unable to manage X. It was argued that X’s behavioural challenges and GDD were known to the Court when interim orders were made for unsupervised time and there has been no significant change of circumstance since then.
I am not bound by decisions made on an interim basis. At a final hearing, the court has time to test the evidence. There are many more documents available via evidence gathering processes and we have had the opportunity to view documents tendered about X’s development and engagement with other services.
I accept that the father has great experience as a parent to three other children. I also accept that on many occasions the father will be supported by his new wife and older teenage children when he spends time with X. However, I am concerned by the father’s lack of engagement with the people involved in X’s care, assessment and ongoing treatment and therapy who are all best placed to guide him on how to best manage X’s behaviour and how to best support her treatment plans.
Earlier I made a finding that the father engaged in coercive and controlling behaviour during the course of the relationship. The ICL submitted that there is no evidence before the court that the father has engaged in controlling and coercive behaviour since the parties separated and therefore I cannot be reasonably satisfied that it remains a risk to X to the Briginshaw standard.
Counsel for the mother argued that the father has continued a course of coercive and controlling behaviour alleging that he:
(a)Had not taken up opportunities to have contact when orders were made in his favour.
(b)Has not taken up opportunity to communicate with X regularly.
(c)Demonises the mother and maternal grandmother and alleges risk with no evidence.
(d)Has spent no longer than four hours with X at any time.
(e)Does not take her special needs seriously.
(f)Has threatened to remove X from the mother’s care, including in these proceedings.
Further, counsel for the mother submitted that people who engage in coercive and controlling behaviour do not suddenly stop and if I make a finding that it existed during the relationship, the mother and X remain at risk in the future. The Family Consultant took a similar view. When put to her that the mother was not maintaining an unacceptable risk case she opined that this may be a reflection of “the control she is experiencing”.
When the Family Consultant was asked about the risks for the mother and X she said:[21]
In Family Court proceedings, perpetrators of coercive, controlling family violence are particularly dangerous to mothers and children because their control extends well beyond separation, sometimes for years. They engage in patterns of behaviour that are designed to isolate, degrade, exploit and control victims and the mother’s depictions of some of the father’s behaviour would be considered text book in some of the things she has told me.
[21]Transcript (n 13) p.5 lines 21 – 26.
And:[22]
…[M]y fear with X and with her mother is that need to continue to control and have dominance and power over her will continue well beyond…today. Without court orders that protect X and her mother, who has been her sole carer, primary carer and has been her primary source of love and nurturance and care her entire life, I think that it would be a very dire situation.
[22]Ibid lines 5-10.
I have considered all of the arguments put forward by counsel for the mother and considered their cumulative effect. Whilst I accept there is a risk that the father will continue to engage in behaviour that is coercive and controlling, I find the risk of this is low. The father since separation has continued to pursue his relationship with X both directly with the mother and via these court proceedings in a reasonably positive way. At the same time he has occupied himself with many other activities and in other countries and states. Arguably he faces more criticism for his absence post separation than his presence. His lack of engagement with the mother about X or the medical professionals, therapists and educators might suggest that he is no longer engaged in a course of conduct aimed at dominating and controlling the mother. Only time will tell, but in any event, whatever orders are made will need to mitigate against this risk.
Can the risks of psychological harm to X be mitigated?
I note that the father has been consistent in his efforts to maintain and develop a relationship with X since her birth. Whilst he might be criticised for putting the needs of himself above the needs of X, and in doing so failing to establish a consistent spend time with regime, I accept that he has been a consistent figure in her life. Notwithstanding his six months in Country EE, his travels around Australia and his relocation to Tasmania, he has continued to visit X and develop his relationship with her. This causes the Family Consultant to conclude at [82] that:
[d]espite Mr Longer’s limited time with X, it would appear that X is comfortable in his care and she has the foundations of a relationship with her father who has been involved in various parenting tasks during ‘time’ and appears to be invested in knowing and raising her.
Provided he continues to speak with her on a regular basis and visit her in accordance with the orders, I am confident he will continue to nurture the relationship.
Unfortunately due to the COVID-19 pandemic, it may be many months before the father is able to spend physical time with X again. The father argues that his continued electronic communication with her will ensure that he is a familiar person in her life. Even so, if the father were to spend time with X any orders would need to ensure that X was comfortable transitioning back to his care and separating from the mother.
During the hearing evidence was given about the need for the father to understand X’s behaviour and manage it. Also emphasised was the need for the father to spend time with X regularly and consistently. A familiar and consistent venue was also raised as being important to mitigate the risk of X becoming distressed or over stimulated.
The father is an intelligent man who will have no difficulty turning his mind to the assessment reports and recommendations made in them. The risks of psychological harm can be mitigated through the father being required to see X in a familiar environment, taking advice from her carers and treaters and containing his visits for periods of a short duration for now.
With a sensitive approach and regular visits by the father, I am of the view that the risks of psychological harm to X can be mitigated.
When the Family Consultant completed her interviews in July 2021 she concluded at [31] of the CIC Memorandum that if the Court found merit in the mother’s allegations of coercive controlling behaviour perpetrated against her by the father that it would not be appropriate that she be expected to have contact or communicate with him. The risks associated with this can be mitigated by ensuring that contact and communication between the parties is kept to a minimum.
Counsel for the mother argued that the only way the risk of harm could be mitigated was by making an order for supervised time between X and the father.
The father has already been through a regime of supervised time. This time would have allowed both he and X to develop their relationship, and for the supervisor to raise any concerns about the appropriateness or otherwise of the father’s behaviour. No concerns were raised. While the mother has expressed some reservations about the father’s care of X on three unsupervised occasions, and I have considered the nature of her concerns, they had little to do with the fathers controlling and coercive behaviour – more his parenting style.
I have also considered the evidence of the Family Consultant. She did not support a long term order for supervision, nor an order for overnight time.
I am left concluding that the risks arising from family violence and the psychological harm identified can be mitigated by orders that:
(a)avoid the parties having to make mutual decisions;
(b)avoid the mother and father having to come face to face too often;
(c)require the father to seek appropriate advice about managing X’s behaviour and his time with her more generally before unsupervised time recommences;
(d)ensure a consistent, familiar and appropriate venue for the father’s time; and
(e)limit the duration of the father’s visits and do not increase the duration until endorsed by X’s treating doctor or therapist.
CONCLUSION AS TO ORDERS
Parental responsibility
As the Court is being asked to make Orders as to parenting, the first question to be determined is whether the presumption in section 61DA(1) of the Act, that is, is it in the best interests of the child that the parents have equal shared parental responsibility, has been rebutted as:
(a)there are reasonable grounds to believe a parent (or a person who lives with the parent) has engaged in abuse of the child or family violence (section 61DA(2)) of the Act; or
(b)the proceedings are interim and the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order (section 61DA(3)) of the Act.
As I have found that there are reasonable grounds to believe that the father has engaged in family violence, the presumption in section 61DA(1) is rebutted.
Pursuant to section 65DAC of the Act, an order for equal shared parental responsibility requires the parents to make together (and jointly) decisions about major long-term issues affecting the child. The father seeks an order to this effect.
The father’s case is that the communications between the parties have much improved.
His view as reported by the Family Consultant at [23] of the CIC Memorandum is that:
[t]he Court making an order for the mother to have sole parental responsibility for X would be ‘an easy way out for the legal system to cut fathers off when the mother is not willing to communicate’, and that sole parental responsibility is ‘fundamentally wrong’.
The Family Consultant ultimately concluded at [31] of the CIC Memorandum that:
[E]qual shared parental responsibility would not be appropriate for this family because there is conflict between the parents, who are unable to effectively communicate and problem solve together on X’s behalf. There would be a risk that shared parental responsibility would expose X to conflict between her parents, which would not be in her best interests. Also of significance, if the Court determines that there is merit to the mother’s allegations of coercive controlling behaviour perpetrated against her by the father, it would not be appropriate that she be expected to have contact or communicate with him. This is because she would likely experience this as immensely stressful and there would be a risk that such maternal stress would be transferred to X, which would not be in her best interests. Further, X lives with the mother and spends minimal time with the father who does not appear to have been actively involved in her care to date. It would seem sensible that the mother have sole parental responsibility for X.
In cross-examination she confirmed her views on this had not changed.
I am satisfied that requiring the mother to communicate with the father in order to give effect to an order for the parents to have equal shared parental responsibility would cause her ongoing anxiety and may adversely impact upon her parenting capacity and, hence, not be in the best interests of X.
I have also reached this conclusion because X has high needs and requires constant involvement of medical and therapeutic services. It is not practical to require the mother to arrive at these decisions jointly with the father into the future. It is reasonable though for him to be advised of these matters and have the opportunity to speak to professionals involved in her treatment. I will make orders to facilitate this.
What time should the father spend with X?
In M v M [988] HCA 68 the High Court at [20] observed that parenting proceedings are not to be viewed as adversarial proceedings in the ordinary sense, but as an investigation as to what order will best promote the welfare of the child. A court exercising jurisdiction under Part VII of the Act is not bound by the proposed orders of any party or limited to making orders in the terms sought by a party.[23]
[23]See U v U [2002] 211 HCA 36.
For reasons that will be outlined, I will make orders for the father to spend time with X that have regard to the needs to mitigate the risks outlined previously. This means that the orders at times depart from the orders sought by the parties.
At [24] of the CIC Memorandum the father stated to the Family Consultant that:
he seeks ‘flexibility’ in the Court Orders, because he lives a significant distance from the maternal residence. He said that he would like the Court Orders to reflect that he spend time with X ‘when I’m in New South Wales and whenever I can’. He said that he would like X to commence spending overnight time with him at times he is in New South Wales, if the Court determines this appropriate. He said that he understands that it would be necessary to consider X’s age and stage of development, and whether she would be capable of managing same. [He] indicated that, in circumstances whereby X pined for her mother whilst spending overnight time with him, he would immediately return her to the maternal residence.
The mother says X needs a routine because children on the Autism spectrum manage better with consistent and firm schedules.
The Family Consultant said at [27] of the CIC Memorandum that:
a significant issue for X is the limited time she has spent with her father, notwithstanding that the COVID-19 global pandemic has partly interfered with this. Children need regular time with a parent in order to sustain a relationship. The reality is, X was one month old when her parents separated and she has not lived with her father since, nor spent meaningful and significant time with him. If the father is unable to commit to regular travel to X’s domain (Sydney), and spend time with her pursuant to Court Orders, X’s relationship with him would possibly never develop to its full potential.
She went on to say at [30] that:
it would be important that the father exercise caution and considerable patience concerning X commencing to spend overnight time with him. Many children can manage one overnight with their non-live-with parent by the time they attain three years of age, but this is dependent on the child’s personality and temperament, and their individual circumstances. It cannot be discounted that X would potentially experience spending overnight time in her father’s care as stressful. This is because she has spent minimal time with him to date, and children on the Autism spectrum are vulnerable to significant stress by way of altered routines and schedules.
Having regard to those matters and to the special needs of X, I will make an order that she spend time with her father from 10am until 3pm on the last Saturday of each calendar month.
Having regard to the likely gap before the father can spend time with X again, before his first unsupervised visit, he will be required to visit X in a setting familiar to her, for example at either her home or at her day care facility (for example, LL childcare). The mother will nominate the setting. The father’s attendance at this setting will establish trust with X but will also allow him to speak to her carers about managing X whilst she is in his care. When this suggestion was made during submissions the father expressed some reluctance - he viewed it as unnecessary. I listened to his concerns and whilst I accept he is not an unfamiliar person to X, in order to settle X and make it a positive experience for her I am of the view that a transition of this nature will be in her best interests.
The father will also be required to speak with one of the professionals currently engaged in X’s treatment before his first unsupervised visit and seek advice on X’s developmental needs and a suitable venue for his visits with her. She is currently under the care of a paediatrician, general practitioner, speech therapist, and the LL foundation. If the father is unable to arrange this, the mother will nominate to the father a suitable professional form him to speak with.
And upon seeking that advice and in considering any recommendations, the mother will confirm with him the regular venue he proposes to use consistently when he spends time with X.
I appreciate that the father seeks to enjoy much longer periods of time with X. I am aware that the ICL, no doubt to avoid the need for further litigation, has recommended an incremental progression of the father’s time with X from 9am until 5pm when X commences school.
Due to X’s medical and psychological needs it is difficult right now to assess her readiness for an increase in time in 18 months. Even more so when we have no clear timeframe on when the father will be able to spend time with X again. I am prepared to extend the father’s time by two hours each month such that it concludes at 5pm however such extension of time will not occur until the parties receive a recommendation in writing that supports X’s capacity to tolerate the increase in time. Again the mother will nominate to the father a suitable professional to make this assessment.
The ICL proposed that the father also be permitted to spend time with X on the second Saturday of each calendar month. When the father was asked about his intentions for the future he indicated that he could commit to a monthly visit and would only be likely to cancel or vary three or four of these each year. I am concerned that making the order proposed by the ICL will create an expectation for X that she will see her father on a fortnightly basis when the likelihood of this seems improbable. It also requires more communication between the parties, something that the orders attempt to avoid due to the risk issues analysed above. The ICL also proposed make up time for the father if he is unable to spend time with X in accordance with the orders. I declined to make this order for the reasons already outlined.
The parties did agree to a raft of orders concerning the ongoing communication and notification of matters concerning X. I will make those orders as proposed by the ICL.
REMOVAL FROM FAMILY LAW WATCHLIST
The orders made on 26 August 2019 by Judge Boyle caused the child to be placed on the Family Law Watchlist (formerly known as the Airport Watchlist) by virtue of the mother’s fear that the father would remove X from Australia as part of his continuous and ongoing travels abroad.
The father seeks to have X’s name be removed from the Watchlist. He advised the Family Consultant that he hopes to travel abroad with X and her half siblings in the future. He said that he has no intention of travelling interstate or abroad with X without her mother’s knowledge and agreement.
The mother to seeks to travel abroad with X in the future but does not consent to the father doing so.
Neither party appear to be a flight risk. Both parties have well-established lives in Australia. The suitability and practicality of X’s travelling overseas in the future remains an unknown. Having considered the evidence and submissions made on the issue I will order that X’s name be removed from the Watchlist and I will permit the mother to travel with X outside of Australia for periods of no more than four weeks duration.
Should the father in the future wish to travel abroad with X he will need to seek the mother’s consent to do so.
I certify that the preceding two hundred and four (204) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse. Associate:
Dated: 1 November 2021
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