Loveridge & Emery & Anor

[2011] FamCA 203

FAMILY COURT OF AUSTRALIA

LOVERIDGE & EMERY AND ANOR [2011] FamCA 203

FAMILY LAW - DISQUALIFICATION APPLICATION - father’s application for judicial officer to disqualify himself by reason of apprehended bias – judge had previously represented the mother briefly in other proceedings pro bono – disqualification by association should only occur if there are substantial grounds – father failed to explain how the judicial officer’s past association with the mother may cause departure from impartial adjudication – father unreasonably delayed his objection – waiver of the application – application dismissed

FAMILY LAW - CHILDREN – Parental responsibility – past family violence – finding that father was the principal perpetrator of family violence – father fails to acknowledge violent behaviour and its impact on others – no evidence of present family violence – child is not exposed to unacceptable risk of family violence – child has a meaningful relationship with the maternal grandmother – neither parent is willing or able to facilitate close and continuing relationships between the child and the other – maternal grandmother is willing and able to facilitate relationships between the child, parents and half-siblings – both parents have long histories of illegal drug use – both parents suffer psychological and emotional instability – presumption of equal shared parental responsibility is rebutted – sole parental responsibility is allocated to the maternal grandmother

FAMILY LAW - CHILDREN – with whom the child shall live – child’s living arrangements are inextricably linked to parental responsibility – the child has lived in a stable arrangement with the maternal grandmother for some time – the child shall continue to live with the maternal grandmother

FAMILY LAW - CHILDREN – with whom the child shall spend time – father’s emotional instability may cause emotional instability in the child – no evidence to infer the father’s condition will improve – father shall spend supervised time with the child on an indefinite basis – father shall have written communication with the child – the mother has a good relationship with the maternal grandmother – time spent by the child with the mother is at the discretion of the maternal grandmother

Evidence Act 1995 (Cth) s 122
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG(1)(b), 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 69ZU, 94(1AA)

Aldridge & Keaton (2009) FLC 93-421
Allesch v Maunz (2000) 203 CLR 172
Bienstein v Bienstein (2003) 195 ALR 225
Dennett & Norman [2007] FamCA 57
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Goode & Goode (2006) FLC 93-286
H & K [2001] FamCA 687
Johnson v Johnson (2000) 201 CLR 488
Jones v Dunkel (1959) 101 CLR 298
Kartinyeri and Anor v Commonwealth of Australia (1998) 156 ALR 300
Livesey v NSW Bar Association (1983) 151 CLR 288
Marriage of B & B (1993) FLC 92-357
McCall & Clark (2009) FLC 93-405
Mead v Mead (2007) 235 ALR 197
Moose v Moose (2008) FLC 93-375
MRR v GR (2010) 240 CLR 461
Potts & Bims & Ors [2007] FamCA 394
Re C & J (1996) FLC 92-697
Re JLR; Ex parte CJL (1986) 161 CLR 342
Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78
Rice & Asplund (1979) FLC 90-725
Taylor v Taylor (1979) 143 CLR 1
Vakauta v Kelly (1989) 167 CLR 568
W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235
Webb v The Queen (1994) 181 CLR 41

APPLICANT: Mr S Loveridge

1st RESPONDENT: Ms Emery

2nd RESPONDENT: Ms R

INTERVENER: Director-General of the New South Wales Department of Human Services

INDEPENDENT CHILDREN’S LAWYER: Denise Clark, Solicitor & Advocate

FILE NUMBER: NCC 2444 of 2008

DATE DELIVERED: 29 March 2011

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 1, 2, 3, and 5 November 2010; 11 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilkinson
(1, 2, 3 and 5 November 2010)

SOLICITOR FOR THE APPLICANT: Toronto Legal
(1, 2, 3 and 5 November 2010)

COUNSEL FOR THE 1ST RESPONDENT: Mr Davies

SOLICITOR FOR THE 1ST RESPONDENT: Harris Wheeler Solicitors

COUNSEL FOR THE 2ND RESPONDENT: Not Applicable

SOLICITOR FOR THE 2ND RESPONDENT: Not Applicable

COUNSEL FOR THE INTERVENER: Mr Boyd

SOLICITOR FOR THE INTERVENER: Crown Solicitor's Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Sundstrom

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Denise Clark, Solicitor & Advocate

Orders

1. All previous parenting orders relating to the child J, born … September 2003, (“the child”) are discharged.

2. The second respondent (maternal grandmother) shall have sole parental responsibility for the child.

3. The child shall live with the second respondent.

4. Each of the parties shall take all reasonable steps to ensure that the child spends supervised time with the applicant (father) for four hours every fourth weekend, commencing on the first weekend following compliance with Order 5(b) hereof.

5. For the purpose of implementing Order 4 hereof:

   (a)The supervisor of the time spent by the child with the applicant shall be staff at “Contact Centre 1” at Town 1, Queensland, or some other person or entity nominated by that organisation (“the supervisor”);

   (b)The second respondent and applicant shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor;

   (c)The parties shall comply with all reasonable requests and directions of the supervisor;

   (d)       The applicant shall pay any costs of the supervisor;

   (e)The time that is to be spent by the child with the applicant each fourth weekend shall commence at the time designated by the supervisor;

   (f)The venue at which the time is to be spent by the child with the applicant each fourth weekend shall be designated by the supervisor;

   (g)If on an occasion the child is due to spend time with the applicant that time together cannot be accommodated by reason of unavailability of the supervisor, then the time the child would otherwise have spent with the applicant shall be made-up at another time as close to the original time as can be arranged;

   (h)The second respondent shall cause the delivery of the child to, and the collection of the child from, the designated venue at the commencement and conclusion of the time spent by the child with the applicant; and

   (i)Leave is granted to the parties to provide a copy of these Orders to the supervisor;

6. Each of the parties shall take all reasonable steps to ensure that the child is able to communicate with the applicant in the following manner:

   (a)By the applicant being able to send letters, cards, and/or gifts to the child, not more frequently than fortnightly; and

   (b)By the first and second respondents sending to the applicant any letters, cards, photographs, or other written communication that the child wishes to be conveyed to the applicant.

7. The second respondent shall take all reasonable steps to ensure that the child spends time and communicates with the first respondent (mother) at times and on such conditions as the second respondent sees fit.

8. Each party is restrained from denigrating any of the others in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating any of the others.

9. Each party shall notify the others of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parties about the condition and treatment of the child.

10. The second respondent shall authorise and request the principal of any school attended by the child to provide to the applicant and first respondent, at their individual expense, copies of all school reports and school photograph order forms relating to the child.

11. Each party shall forthwith inform the others, and keep the others informed, in writing, of their respective current residential address, landline telephone number, and mobile telephone number.

12. The second respondent shall forthwith arrange for the child to consult and participate in therapy with a child clinician, and for that purpose:

    (a)The second respondent shall meet any cost of that therapy;

    (b)The second respondent shall inform the applicant and first respondent of the name and contact details of that clinician;

    (c)The second respondent shall furnish to the clinician:

    i)A copy of these Orders;  and

    ii)A copy of the single expert report of Dr R, psychiatrist, dated 12 March 2010.

13. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

14. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

15. Any and all outstanding applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Loveridge & Emery and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2444 of 2008

Mr S Loveridge

Applicant

And

Ms Emery

First Respondent

And

Ms R

Second Respondent

And

Director-General, New South Wales Department of Human Services

Intervener

And

Independent Children’s Lawyer 

REASONS FOR JUDGMENT

Introduction

1. This litigation concerns parenting orders affecting the single child of the relationship between the applicant father and first respondent mother. That child is J (“the child”), who was born in September 2003 and who is now 7 years of age.

2. Numerous other interested parties have joined in the proceedings since the litigation was commenced in September 2008, including the Independent Children’s Lawyer in February 2009, the Director-General of the NSW Department of Human Services (“the Intervener”) in July 2009, and the maternal grandmother in September 2009.

3. The parties have, over the course of the proceedings, proposed significantly different parenting regimes for the child. The father, mother, and maternal grandmother all put themselves forward as the superior residential carer for the child. The Intervener broadly supported the maternal grandmother and the Independent Children’s Lawyer was undecided.

4. The controversy was, however, narrowed considerably on the cusp of the trial. The maternal grandmother, mother, and Independent Children’s Lawyer announced they all supported the parenting orders proposed by the Intervener. Those orders stipulated that the child would live with the maternal grandmother, who would have sole parental responsibility for the child. The orders furthermore proposed that the child would spend time with the mother at the discretion of the maternal grandmother, and that the child would spend time with the father on a restricted, conditional, and supervised basis.

5. The proposal concerning the time spent by the child with the father was premised, in part, on an assumption the child would remain living with the maternal grandmother in Queensland and the father would remain living in NSW. Although the father adduced evidence during the trial that he intended to move to Queensland in close proximity to the maternal grandmother if the Court’s orders required the child to remain living with the maternal grandmother, so as to facilitate his interaction with the child, the other parties did not revise their proposals about the time the child should spend with him. They maintained that it should be supervised.

6. The father remained intractably opposed to the other parties. He maintained his position that the existing parenting arrangements required substantial change. He proposed that the parties, which term he presumably used to mean the parents, have equal shared parental responsibility for the child. He also proposed that the child live with him in Newcastle, NSW, despite having lived with the maternal grandmother in Queensland for nearly the last two years. He proposed that the child spend time with the mother during school holiday periods, and he envisaged that if the child was to spend time with the maternal grandmother then that would occur during the occasions when the child was spending time with the mother.

7. The father’s proposal was therefore vastly divergent from the proposals of the other parties, whose positions were broadly supported by the evidence of the single expert psychiatrist.

8. The trial ended acrimoniously, with the father voluntarily withdrawing from the proceedings prior to the cross examination of the single expert and the making of final submissions.

Background

1. The mother and father first formed a relationship in about late 1999. Although the father asserted in his affidavit that they first met in December 2000,[1] he corrected the error when he began his evidence. The mother agreed with the father’s corrected evidence. It remains unclear when they first began cohabitation because the father did not additionally correct the statements in his affidavit that their cohabitation began in early 2001.[2] The mother did not specifically say and she was not asked.

   [1] Father’s affidavit, par 4

   [2] Father’s affidavit, pars 1, 5

2. In any event, at the beginning of their relationship the mother had three children, but none of them lived with her. Those children were retained by the mother’s former partner against the mother’s will.[3]

   [3] Mother’s affidavit, pars 8-11, 14

3. After cohabitation commenced, the mother and father lived at various locations in the Newcastle area for some time.[4]

   [4] Mother’s affidavit, pars 12-17; Father’s affidavit, pars 5, 91, 98-99

4. Later, in or about 2001, the mother obtained rental accommodation for herself and her eldest child, S, who then came to live with her. The father also lived in that home with them.[5]

   [5] Mother’s affidavit, par 17; Father’s affidavit, par 55

5. The child was born in September 2003.[6]

   [6] Father’s affidavit, par 2

6. It is common ground that the relationship between the mother and father was tumultuous, although they have differing perceptions as to why that was so. The father contended that the mother’s psychological condition was volatile for reasons beyond his control and, despite his valiant attempts to help the mother, her condition caused the relationship to disintegrate in conflict.[7] The mother said that she suffered emotional instability largely because of severe domestic violence and abuse she suffered at the hands of the father and her prior partners, from which she was eventually able to escape.[8]

   [7] Father’s affidavit, pars 12-30

   [8] Mother’s affidavit, pars 5, 6, 18-20

7. A serious incident occurred between the mother and father on 3 January 2006, which incident marks the point at which the relationship between them ended. The mother, father, S, and the child were then living on a rural property north of Newcastle. The mother fled the property, with S and the child in the car with her. The father pursued them on a motorcycle. There is profound dispute between the parties about the circumstances of the incident that then occurred, but the following features are uncontentious. The car driven by the mother collided with the motorcycle ridden by the father. The father was knocked to the roadway and both vehicles came to a stop. The father approached the car driven by the mother, who then panicked and drove the vehicle away, inadvertently into the path of oncoming vehicles, causing a second collision. The car containing the mother, S, and the child rolled over with the force of the collision. Fortunately they were not seriously hurt. The father approached them and the mother shouted to gathering bystanders imploring their protection from the father. In response to a hostile group, the father fled the scene on foot, continuing to evade police who were searching for him. The father surrendered himself to police the following day in the company of his solicitor and he was charged with a series of offences.[9]

   [9] Father’s affidavit, pars 104-110; Mother’s affidavit, pars 19-21; Exhibit M1

8. Following that incident, the mother and father both vacated the rural property at which they had been cohabiting. The father began residing in a granny flat on his parents’ property in Newcastle and he has remained there ever since.[10] The mother moved into temporary refuge accommodation with the child,[11] and then later moved into other rental accommodation at various locations in Newcastle.[12]

   [10] Affidavit of Mr K Loveridge, par 30; Father’s affidavit, par 85(i)

   [11] Maternal grandmother’s affidavit, par 20; Affidavit of Ms Y, par 20

   [12] Mother’s affidavit, pars 29, 36

9. Quite some time later the mother bore another child to another man. That child, Q, was born in June 2009.[13]

   [13] Affidavit of Ms Y, par 52

10. The child did not live consistently with the mother after her separation from the father in January 2006. That situation eventuated by reason of a number of factors, including the mother’s continuing illicit drug use and chaotic lifestyle, her pregnancy and the birth of Q, and her suffering some medical complications that arose with that pregnancy.

11. The child lived with the maternal grandmother and her partner in Queensland between January 2007 and April 2008. The mother, who also lived sporadically for some months over that period with the maternal grandmother, took the child back to Newcastle to live in April 2008.[14]

    [14] Assessment 8 September 2009, page 3 par 2; Mother’s affidavit, par 23

12. The child was returned by the mother to the maternal grandmother in Queensland in April 2009 and he has lived there ever since. The mother and Q have also lived in that household since July 2009.[15]

    [15] Assessment 8 September 2009, page 2 par 6, 4 par 2; Single expert report, page 14 par 3;

13. Despite the pending criminal prosecution and apprehended violence proceedings against the father arising out of the incident in January 2006, the father asserted the child still spent time with him intermittently up until June 2007.[16] The father was not challenged about that evidence and the mother did not adduce any evidence to the contrary. However, it conflicts with the evidence that the child went to live in Queensland with the maternal grandmother in January 2007. In any event, the available evidence does not permit any conclusion about the frequency or routine of the time spent by the child with the father between January 2006 and some time in early 2007.

    [16] Father’s affidavit, pars 116-127

14. The flexible parenting arrangement ceased, if not before, by June 2007 at the latest. At that time the father was arrested and remanded in custody on further criminal charges concerning the mother.[17] The father remained in custody with bail refused until 11 December 2007.[18] At least for the latter half of 2007 the child spent no time at all with the father.

    [17] Father’s affidavit, pars 129-130, 132

    [18] Father’s affidavit, par 131

15. Whilst the father was incarcerated the mother began parenting proceedings before the Federal Magistrates Court in Queensland. The father was aware of those proceedings because he conceded in cross examination that he had received correspondence about the litigation, in relation to which he had engaged a lawyer, with whom he communicated through his parents. The paternal grandfather confirmed that he visited the father in prison every weekend and he was therefore able to convey information between the father and his lawyer.

16. The parenting proceedings were concluded on 27 November 2007 when the Court made final orders,[19] in the absence of the father, which relevantly provided as follows:[20]

    1.      That the child [name] born […] September 2003 (the child) live with the mother.

    2.      That the mother have sole responsibility for the long term care, welfare and development of the child.

    3.      That the mother have sole responsibility for the day to day care, welfare and development of the child.

    4.      That there be no contact between the father and the child.

    IT IS NOTED:

    5. That these orders are made in the absence of the father and he may have an entitlement pursuant to Rule 16.05(2) of the Federal Magistrates Court Rules 2001 to apply to have the orders set aside.

    [19] Mother’s affidavit, par 24

    [20] Mother’s affidavit, Annexure F

1. Consistently with the terms of those orders, the child apparently continued to spend no time with the father until after the mother returned to Newcastle from Queensland with the child in April 2008. The father took no steps between November 2007 and April 2008 to revise the orders, as Notation 5 envisaged he might.

2. The circumstances in which the child resumed his interaction with the father at some point in or after April 2008 are contentious and were only superficially explored in cross examination.

3. The father asserted that the mother took the child to him in April 2008 and voluntarily left the child with the father, demanding that he care for the child for an indefinite period, which arrangement lasted until 18 July 2008.[21]

   [21] Father’s affidavit, pars 143-147

4. Conversely, the mother alleged that the father attended her home in Newcastle uninvited on or about 10 June 2008 demanding to see the child, and then abducted the child. The mother sought legal assistance to institute proceedings for a recovery order.[22] Although legal aid was granted to the mother for that purpose, the commencement of proceedings proved unnecessary because the child was returned to the mother, apparently following intervention by police.[23]

   [22] Mother’s affidavit, pars 26-27

   [23] Father’s affidavit, par 147; Mother’s affidavit par 26

5. It is common ground that the mother attended the father’s home on 10 June 2008 in an attempt to persuade the father and paternal grandparents to return the child to her. The mother was hysterical and the police were summoned. The police conveyed the mother to hospital for evaluation and treatment. A medical note made by hospital staff that day about the mother, which was tendered,[24] relevantly records as follows:

   “…woman…recently re-located from Brisbane…had an altercation with ex partner about keeping her son. She has asked him to take care of the boy for a few days while she sorted out her new flat when it was time to get him back he refused to give her her son claiming she was crazy (sic)…”

   [24] Exhibit F2; Single expert report, page 13 par 2

6. Neither party proved in cross examination to be a particularly reliable historian and so, when reconstructing disputed historical events, most weight is reposed in contemporaneous records, such as the hospital notes.

7. I conclude on the evidence the mother and father agreed that the child should stay temporarily with the father, and he was not abducted by the father as the mother alleged. I also conclude the arrangement was intended to last for only a few days during June 2008, and did not occur in April 2008 nor last the period of months alleged by the father. I also conclude the father reneged on the agreement to return the child. Whether he then had reasonable grounds to do so is now impossible to say.

8. Following those events in June 2008, the mother ensured the child ceased spending any time with the father. Her action was consistent with the orders made in November 2007, which still prevailed. The uncontested evidence is that, apart from the short time spent by the child with the father in the presence of the single expert on 9 February 2010, the child has not spent any time with the father since June 2008.

9. The father commenced the present proceedings by filing his Initiating Application on 24 September 2008 in the Federal Magistrates Court at Newcastle. His proposal at that time was that he and the mother have equal shared parental responsibility for the child and that the child live for equal time with each parent on a week-about basis.

10. The mother filed her Response on 19 February 2009 proposing simply that the orders made on 27 November 2007 be confirmed.

11. Interim orders were made by the Federal Magistrates Court on 27 February 2009 providing for continuation of the orders made in November 2007, together with the appointment of the Independent Children’s Lawyer.

12. The proceedings were transferred from the Federal Magistrates Court to this Court on 3 April 2009.

13. Further interim orders were made on 3 June 2009, leaving the November 2007 orders intact, but restraining the mother from removing the child from the home of the maternal grandmother without notice to the other parties.

14. The Family Consultant conducted interviews with the parties and produced his Assessments on 2 June 2009 and 8 September 2009.

15. The single expert witness was appointed on 15 December 2009, conducted interviews and observations in early February 2010, and produced her report dated 12 March 2010, which was released to the parties and the Independent Children’s Lawyer.

16. The final trial commenced on 1 November 2010, but was adjourned part-heard on 5 November 2010 because of the father’s absence from Court that day due to illness.[25] The trial resumed and was concluded on 11 March 2011. Judgment was reserved.

    [25] Exhibit F3

Proposal and evidence of the father

1. The father pressed for the orders set out within his Amended Initiating Application filed on 18 June 2010, the salient points of which are:

   a)The parents shall have equal shared parental responsibility for the child (order 3);

   b)The child live with the father (order 2) and spend time with the mother as agreed between the parties but, failing agreement, for half of the school holiday periods (order 3);

   c)The child shall have telephone communication with the mother (order 5); and

   d)The child shall spend time with the maternal grandmother and/or her partner during the time the child spends with the mother (order 7).

2. In support of his Application, the father relied upon:

   a)His affidavit filed on 25 October 2010;

   b)The affidavit of the paternal grandfather filed on 25 October 2010; and

   c)The affidavit of Ms D, the father’s current partner, filed on 25 October 2010.

Proposal and evidence of the intervener

1. The Intervener pressed for the orders set out within the Response filed on 13 July 2010, subject to some minor modifications explained during final submissions. In summary, the Intervener sought that:

   a)The maternal grandmother have sole parental responsibility for the child (order  3);

   b)The child live with the maternal grandmother (order 2);

   c)The child spend time with the mother as agreed between the maternal grandmother and the mother (order 4);

   d)The child spend supervised time with the father once every two months, with each visit being a duration of two hours (order 5a) with extra time on Father’s Day and the child’s birthday (orders 5b and 5c), later submitted to be conditional upon the father not discussing the litigation and not denigrating the other parties in the presence of the child;[26] and

   e)The child have telephone or written communication with the father (order 12).

   [26] Exhibit INT6

2. The Intervener relied upon the evidence set out within the affidavit of Ms Y filed on 20 September 2010.

3. At the time of trial, Ms Y was unavailable as a witness for an indefinite period. The Intervenor made another departmental caseworker available for cross examination on the evidence adduced in Ms Y’s affidavit, with which all other parties, including the father, were content.

4. In addition to the affidavit evidence, the Intervener tendered as an exhibit[27] a recently prepared assessment report referred to in, but not annexed to, the affidavit of Ms Y.

   [27] Exhibit INT1

Proposal and evidence of the maternal grandmother

1. The maternal grandmother abandoned her most recent parenting proposal contained within her Response filed on 26 August 2010 and supported the proposal of the Intervener. She relied upon:

   a)     Her affidavit filed on 29 October 2010; and

   b)     The affidavit of her partner, Mr M, filed on 29 October 2010.

Proposal and evidence of the mother

1. The mother abandoned her most recent parenting proposal contained within her “Further Further Amended Response” filed on 23 August 2010 and likewise began the trial by supporting the proposal of the Intervener. She relied upon her affidavit filed on 11 October 2010.

2. During the course of final submissions the mother announced that she instead supported the final proposal of the Independent Children’s Lawyer.

Proposal of the independent children’s lawyer

1. The Independent Children’s Lawyer similarly began the trial indicating support for the proposal of the Intervener. However, in final submissions the Independent Children’s Lawyer tendered a fresh minute of orders[28] setting out orders that were, in some respects, different from those proposed by the Intervener. The difference principally related to the frequency of supervised time spent by the child with the father, with the Independent Children’s Lawyer submitting that it should occur more frequently than the Intervener submitted.

   [28] Exhibit ICL1

2. The Independent Children’s Lawyer did not separately adduce any evidence but, as with the parties, relied upon the evidence of the Family Consultant and single expert witness contained within:

   a)The Children and Parents Issues Assessment prepared by the Family Consultant, dated 2 June 2009.

   b)The update Children and Parents Issues Assessment prepared by the Family Consultant, dated 8 September 2009.

   c)The report dated 12 March 2010 prepared by the single expert witness, Dr R, psychiatrist.

3. The parties consented to the admission of the Family Consultant’s assessments, conformably with s 69ZU of the Family Law Act 1975 (“the Act”), and did not require him for cross examination.

4. The single expert was required for cross examination, but her cross examination was narrowly confined and did not entail any challenge by the father for reasons which should now be explained.

Disqualification application

1. The trial was interrupted on 5 November 2010 when the father’s counsel informed the Court that the father was ill and unable to attend Court that day.

2. By that time, all of the evidence in the trial was complete, but for the cross examination of the single expert. Although armed with the necessary instructions to press ahead with cross examination of the single expert, the father’s counsel was understandably reluctant to do so in the father’s absence and applied for an adjournment. With the consent of the other parties, the matter was adjourned part-heard until 11 March 2011 for the cross examination of the single expert and final submissions, so as to conclude the trial.

3. On 7 March 2011 the father’s solicitor filed a Notice of Ceasing to Act.

4. Upon resumption of the trial on 11 March 2011 the father appeared unrepresented. The father announced that he wished to draw numerous matters to the attention of the Court and then proceeded to do so.

5. It was possible to discern from the father’s soliloquy that he was making an application for me to disqualify myself from the trial by reason of apprehended bias.

6. The father also temporarily agitated a grievance about the mother’s continued representation in the proceedings by her current solicitors, but upon further discussion that grievance dissolved. The mother’s current solicitors previously represented the father in criminal and associated proceedings in 2006, which it was said gave rise to a conflict of interest in the current proceedings. That grievance was previously debated between the parties and an acceptable compromise was reached in October 2010 prior to the commencement of the trial in November 2010, as evidenced by tendered correspondence between the solicitors and contemporaneous file notes.[29]

   [29] Exhibit M2

7. The father conceded in his submissions words to the effect:

   “I chose to allow [the mother’s current solicitors] to continue acting for the mother in the proceedings because I didn’t want the case to be delayed.”

8. The father also had a complaint about the Court’s date stamp on a Case Outline document filed by one of the other parties, but that clearly had nothing to do with the proper progression of the case.

9. Accordingly, that left only the disqualification application to be determined.

10. For the purpose of understanding the disqualification application it is necessary to recite the relevant background facts.

11. As already explained, the parties’ separation arose out of an incident on 3 January 2006. The father was charged with a series of offences in respect of that incident. In addition, countervailing apprehended violence proceedings were commenced between the parties in relation to the incident. Those sets of proceedings were initiated before the Local Court of NSW at Newcastle.

12. The father was required to appear at that court in respect of those proceedings on … June 2006. The father was represented in those proceedings by the same legal firm now representing the mother in the current proceedings before this Court. On 26 June 2006 that firm reported by letter to the father that, in respect of the application for an apprehended violence order made by him against the mother, I had appeared for the mother on a pro bono basis and informed the court that the mother would thereafter be represented in those proceedings by a representative from the Sydney Advocacy Centre.[30]

    [30] Exhibit F4

13. The author of that letter was Mr Tony Cardillo, solicitor. He was later called by the mother to give evidence on the voir dire in these proceedings. He had no independent recollection of events in June 2006, but had refreshed his memory from the file before giving evidence. He said that on … June 2006, in response to a request by the presiding magistrate, I appeared for the mother in respect of the apprehended violence proceedings concerning the father. My appearance was without a brief and conducted on a pro bono basis. Mr Cardillo said that he and I discussed the prospect of an interim apprehended violence order being made by the court, but that did not eventuate. Both the criminal prosecution, handled by a solicitor from the Office of Public Prosecutions, and the separate apprehended violence proceedings were adjourned to a later date. My involvement with the mother was confined to the appearance on … June 2006.

14. For the purpose of absolute clarity, I have no recollection whatsoever of the mother, the father, the apprehended violence proceedings between them, or my transient appearance in those proceedings on … June 2006. Had I remembered any of those details I would have disclosed them at the outset.

15. Nor did the mother have any recollection of me. According to her counsel, the father’s application was as big a surprise for her as it was for me.

16. During discussion about the application, the father was asked about whether he could remember being at court on … June 2006, in response to which he said words to the effect of:

    “Yes Your Honour. I remember you Your Honour.”

17. The father’s statement made it plain that he had, at some point, realised that the lawyer who appeared for the mother on … June 2006 and the judge determining the current proceedings were one and the same. As might be expected, that generated some further interest as to when the realisation had dawned on the father.

18. The father appeared with his lawyer before this Court in these proceedings, whilst I presided, on several occasions over many months. The father therefore had ample opportunity to observe and recognise me on 7 June 2010 when procedural directions were made, and then on 1, 2, and 3 November 2010 for the first three days of trial. No application for disqualification was made by, or for, the father on any of those occasions.

19. Aside from the father and his lawyers, the first inkling of a problem developed in February 2011, whilst the trial was adjourned part-heard, when the father’s solicitor corresponded with the other parties notifying them that the father had instructed him as follows:[31]

    “I refer to the above matter and inform you that my client [the father] has notified me that Justice Austin may have acted for [the mother] when His Honour practiced as a barrister.

    I understand that this information is contained in a letter either written or received by [the mother’s current solicitors] when Mr Tony Cardillo, Solicitor, acted for [the father] in relation to criminal charges sometime between 2000 and 2003.

    I have requested that a copy of the said letter be forwarded to me but I have not as yet received a copy of it…”

    [31] Exhibit M3

20. The solicitors for the other parties in the proceedings replied, advising variously that the father’s solicitor should firstly procure a copy of the letter and then notify the Court requesting that the matter be re-listed.[32] Despite the tenor of those replies, copies of the letter dated 26 June 2006 (not in the period between 2000 and 2003, as stated) were not distributed to the parties until the father sought to tender the letter in evidence on 11 March 2011, and no request was made of the Court to re-list the matter before 11 March 2011.

    [32] Exhibit M3

21. The father made some vague and unspecific references in his submissions to having instructed his solicitor and/or counsel during the trial in November 2010 to raise the matter of disqualification, but such submission is unsubstantiated by any evidence. It is difficult to accept at face value that the father’s solicitor and counsel simply refused point blank to follow his express instructions to make a disqualification application. Even if that was the case, the father must have known that his instructions were countermanded and no disqualification application was made at any point in the months elapsed between 5 November 2010 and 11 March 2011, and he acquiesced to that state of affairs. The issue was not even floated until the father’s solicitor corresponded with the other parties on 11 February 2011. The father’s solicitor’s letter betrays that, even by that date, the father had still not furnished him with the letter from 26 June 2006 founding the concern. That letter was kept from the other parties by the father until the resumption of the trial on 11 March 2011.

22. While the application was being debated with the parties it was necessary to repeatedly warn the father against his constant interjections. The father did not desist and, but for his decision to leave voluntarily, would have been escorted from the courtroom by the court officer. Prior to his exit, the father was warned that should he not return to Court after a temporary adjournment to permit the mother to make inquiries about the issues raised by him, and in particular the contents of the letter dated 26 June 2006, the trial would continue in his absence. During the adjournment the mother’s lawyers were able to speak to Mr Cardillo and arrange for his attendance at Court to give evidence about the circumstances reported in his letter to the father on 26 June 2006. Unfortunately, during that adjournment and prior to the application being determined, the father voluntarily departed the Court complex and did not return.

23. The principles governing recusal, to which it is now necessary to turn, must be applied to that factual background.

24. The cardinal principle is well known (see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345; Johnson v Johnson (2000) 201 CLR 488 at 492):

    …a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

25. Application of that principle entails two distinct steps, as was explained in Ebner at 345:

    First, it requires the identification of what it is said might lead a judge… to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge…has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

1. There are recognised to be four distinct but overlapping categories of cases covered by the doctrine of apprehended bias (see Webb v The Queen (1994) 181 CLR 41 at 74; Ebner at 348-349). The first is disqualification by interest, the second is disqualification by conduct, the third is disqualification by association, and the fourth is disqualification by extraneous information.

2. Although not articulated by the father, by implication, his grievance was that a fair-minded lay observer might apprehend my bias in these proceedings in favour of the mother and against the father by reason of my past association with the mother, such association arising out of my pro bono appearance for the mother once on an adjournment of the apprehended violence proceedings between the parties some five years ago.

3. A reasonable apprehension of bias may exist where a presiding judge has a substantial relationship with a party to proceedings before that judge (see Bienstein v Bienstein (2003) 195 ALR 225 at 232), but it is likely to be a question of degree. A prior relationship of legal adviser and client does not generally disqualify the former adviser, on becoming a judge, from sitting in proceedings before the court to which the former client is a party. However, the apprehension of bias is liable to arise if the correctness or appropriateness of advice as to law or strategy given to the client by the erstwhile legal adviser is a live issue for determination by the court. Much depends upon the nature of the relationship, the ambit of the advice given, and the issues falling for determination (see Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 at 87-88; Kartinyeri & Anor v Commonwealth of Australia (1998) 156 ALR 300 at 305; Bienstein at 232).

4. In the circumstances of my transitory appearance for the mother in 2006 to facilitate an adjournment of the apprehended violence proceedings, on a pro bono basis, without a brief, and without any interim or final order being made in those proceedings, it is inherently unlikely that I proffered any advice of significance to the mother. Even if I did furnish advice to the mother about the proceedings, there is no evidence before the Court as to the nature of that advice. In the absence of knowledge about the nature of the advice the correctness or appropriateness of that advice is clearly not an issue in these proceedings.

5. The lack of memory of both the mother and I about one another, and the proceedings in which we were ephemerally associated, is a material consideration (see Kartinyeri at 300-301). It is hardly possible I might favour the mother in these proceedings by reason of our past association if I cannot remember her or the circumstances of our association.

6. It is also important to note that, while the apprehended violence proceedings between the mother and father in 2006 related to an incident which is also relevant to these proceedings, there is no need in these proceedings for me to make any findings of fact about the differing versions of the incident on 3 January 2006. It is common ground that the father was charged with a variety of offences arising out of that incident and he was convicted on a number of those charges following his pleas of guilty.

7. The High Court has repeatedly cautioned against disqualification of a judicial officer on grounds of apprehended bias unless the grounds are substantial. The admonition has been expressed in different ways, including the following:

   a)It would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he/she should automatically disqualify himself/herself whenever requested by one party to do so (see Livesey v NSW Bar Association (1983) 151 CLR 288 at 294; Kartinyeri at 302).

   b)It is equally important that judicial officers discharge their duty to sit and do not accede too readily to suggestions of appearance of bias (see Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; Bienstein at 233).

   c)A conclusion that there is a reasonable apprehension that a judge is biased should not be drawn lightly (see Vakauta v Kelly (1989) 167 CLR 568 at 584-585).

   d)When parties have been engaged in a proceeding for some time, with the inevitable commitment of resources and costs that entails, a judge should not disqualify himself/herself unless there is – not may be – an issue to which a disqualifying factor is relevant (see Re Polites at 92).

   e)A judge should not disqualify himself or herself on the basis of bias or a reasonable apprehension of bias unless substantial grounds are established (see Bienstein at 233).

   f)Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked. Judges do not choose their cases and litigants do not choose their judges. If one party to a case objects to a judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground (see Ebner at 348).

8. In the circumstances, I was not satisfied that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of these proceedings. The father’s application failed at the second step explained in Ebner. His application of apprehended bias was a bare assertion, devoid of explanation about how my past association with the mother might possibly cause departure from impartial adjudication of the case.

9. Even if I was in error in reaching the conclusion that the father’s application was unmeritorious, the application should still have failed by reason of his waiver of the application. There is no doubt that an objection to a judge sitting, or continuing to sit, upon the ground of bias can be waived. Where a party, being aware of his right to object, waives that right, there will be little danger of the appearance of injustice (see Vakauta at 577-579, 586-588; Ebner at 344, 357, 360).

10. As was observed in Vakauta at 577, per Dawson J:

    “It cannot be the position that a party can wait to see whether the outcome of the case is favourable to him before raising objection, the availability of which he was previously aware, on the ground of bias…”

    and at 587, per Toohey J:

    “…when a party is in a position to object but takes no steps to do so, that party cannot be heard to complain later that the judge was biased.”

11. The father acknowledged that he recognised me from the prior proceedings in 2006. He did not say when he first acquired that realisation, but I impute that it was probably before the trial commenced, or at least in the early stages of the trial. The father was undoubtedly aware that my surname is the same surname of the barrister who appeared for the mother in the apprehended violence proceedings in 2006. The father had plentiful opportunity in June and November 2010, when appearing in these proceedings, to recognise me as the same person who appeared for the mother in 2006. Indeed, it would be quite unlikely that the father recognised me as the same person on say the third day of trial, but not the second day of trial.

12. If the father’s submissions are to be accepted, he first raised the matter with his lawyers on or about the fourth day of trial when he fell ill and did not attend Court. So far as the other parties are concerned, the matter was not raised until 11 February 2011 when the father’s solicitor sent letters to the other parties, and the Court knew nothing of it until even after that. The letter written by the father’s solicitor to the other parties on 11 February 2011 expressed, or at least implied, recent receipt of the father’s instructions about the proposed disqualification application.

13. By then, the trial had run for three full days and was nearly at an end. All of the lay evidence had been taken and the matter was adjourned for three months, to accommodate the father’s illness, to take the oral evidence of the single expert witness. The proceedings had been pending for well over two years and concern parenting orders for a young child whose stability has been gravely disturbed.

14. The father unreasonably delayed his objection to me continuing to preside over the proceedings and the public interest in finalisation of the proceedings outweighed the father’s private interest in belated objection to my adjudication.

15. Undoubtedly the father will be aggrieved by the dismissal of his disqualification application, but that grievance may be the subject of a discrete ground of appeal (s 94(1AA)).

Absence of the father for the remainder of trial

1. As already recited, the father voluntarily left the Court complex prior to determination of his disqualification application and he did not return. When the disqualification application was ultimately dismissed, the trial continued in his absence, as he was warned on several occasions may occur.

2. The father exited the courtroom contemporaneously with a direction being made for the court officer to escort him out. But having been warned the trial would continue should he fail to return to Court it cannot reasonably be said that the father did not know he could return. The warning necessarily implied that he could and should return if he desisted from repeated interjections.

3. It is a fundamental principle of natural justice that parties should be afforded a reasonable opportunity of appearing and presenting their case in the adjudication of their disputes. But being afforded the opportunity and making use of it are different things. If a party eschews the given opportunity to be heard by departing the Court without good reason in the knowledge that the trial may continue in that party’s absence, as was the case with the father here, there is no miscarriage of justice by continuation of the trial in the absence of further participation by that party. The court is not required to indefinitely delay the proceedings merely because a party declines to appear (see Allesch v Maunz (2000) 203 CLR 172 at 182-186, 189-191; Taylor v Taylor (1979) 143 CLR 1 at 4).

4. The unilateral decision of the father to discontinue his participation in the trial deprived him of the ability to cross examine the single expert witness and make final submissions about the outcome of the proceedings.

Evidence of the single expert witness

1. The single expert conferred with the child, the parents, the maternal grandmother, and others in February 2010.

2. In her report of 12 March 2010, the single expert importantly observed:[33]

   Stability at all levels – home, school, community, relationships with family and peers – is crucial for [the child], whose development has been marred by instability and chaos during his time living with his parents and later his mother. He has experienced multiple losses and fortunately his intelligence, lovely nature and creative strengths have assisted resilience. He needs to remain embedded in a stable social network to develop his potential.

   [33] Single expert report, page 16 par 3

3. The single expert recommended that the child remain living with the maternal grandmother and her partner for the remainder of his minority.[34] The uncontested evidence is that the child has been living permanently with the maternal grandmother and her partner since April 2009.

   [34] Single expert report, pages 16 par 4, 17 par 7

4. The single expert was dismissive of the father’s application for the child to live with him,[35] and also the application then being made by the mother for the child to live with her.[36]

   [35] Single expert report, page 17 par 1

   [36] Single expert report, page 17 par 6

5. Nevertheless, because of the warmth of the relationship between the child and the father, the single expert regarded it as important for the child to spend time with the father.[37] By reason of the great distance between the homes of the child and the father, and what was described as the “reactivity” of the parents, the single expert recommended that the child spend time with the father under supervised conditions at a contact centre nearer to the residence of the child on a Saturday and Sunday once per month.[38]

   [37] Single expert report, page 17 par 2

   [38] Single expert report, page 17 par 9

6. Similarly, the single expert regarded it as important for the child to continue his relationship with the mother. However, upon the assumption that the mother would continue to live harmoniously within the same household as the child and maternal grandmother for some years to come,[39] the single expert saw no need for any parenting orders to regulate that relationship. Nor did the single expert see the need to exclude the mother from that household.[40] It was clear the single expert envisaged that the maternal grandmother would continue to monitor the mother’s emotional condition and ensure that the child was protected from any destructive behaviour of the mother.[41]

   [39] Single expert report, pages 11 par 3, 14 par 4

   [40] Single expert report, page 17 par 8

   [41] Single expert report, page 15 par 2

7. The single expert also considered that the child would benefit from participating in “play therapy” with an experienced clinician once the litigation was finalised.[42]

   [42] Single expert report, page 16 par 4

8. The single expert was furnished with copies of the parties’ more recent affidavit evidence in advance of her cross examination. The single expert said that material caused only a minor change in her opinion. Her altered opinion was that it would be healthy for the mother to vacate the household of the maternal grandmother and establish her own household as soon as possible.

9. The single expert was also aware, by reason of her waiting in the Court precincts in readiness for her cross examination, of the father’s application for my disqualification from the case, his florid presentation of that application, and his subsequent voluntary departure from the Court complex prior to the determination of the disqualification application. She said that those circumstances had also influenced her opinions. Whereas previously she had been prepared to give the father “the benefit of the doubt” about his emotional stability, she was not now prepared to do so. The father’s behaviour at Court on 11 March 2011 was such as to galvanise her concerns about his emotional stability, which had implications for her recommendations about the time spent by the child with the father.

10. Whilst she had previously proposed supervision of the time spent by the child with the father because of reactivity between the “parents”, she qualified that as a current concern about the reactivity of the “father”. The single expert re-iterated that, because of the child’s chaotic past before commencing residence with the maternal grandmother, the child desperately needs adults with stable mental states around him. The father did not present as an adult of that type.

11. The single expert’s concerns about the father’s “reactive” and “impulsive” behaviours, “preoccupations”, and “compromised psychosocial adjustment”[43] were heightened, which personality features had the propensity to undermine the child’s necessary sense of stability.[44] The child’s emotional wellbeing would be at risk if that were to eventuate.

    [43] Single expert report, page 17 par 1

    [44] Single expert report, page 16 par 3

12. The single expert endorsed her opinion that the child should only spend time with the father in the contained situation offered at a Contact Centre. In her report, the single expert gave two reasons for the child’s time with the father to be supervised. The first was that only that sort of contained environment would guard against the reactivity of the father in the event of some occurrence that disturbed the father’s sense of justice, fairness, or appropriateness. The second reason was her assumption of the great distance between the homes of the child and the father. Despite the single expert being informed of the father’s stated intention to begin residence in close proximity to the maternal family in Queensland so as to avoid the tyranny of distance, the single expert adhered to her view that the time should remain supervised.

13. Otherwise, the single expert adhered to the opinions and recommendations expressed in her report.

14. I generally accept the evidence of the single expert, which was reasoned, coherent, and logical.

Summary of parenting law

1. Orders in respect of children are regulated under Part VII of the Act, in which the meaning of a “parenting order” is defined (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.

6. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

8. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Best interests of the child – parents and others

1. Where the provisions of ss 60B and 60CC of the Act refer specifically to “parents” in the context of objects, principles, and considerations relevant to the determination of a child’s best interests, the legislature does not intend those relevant factors to extend to parties or third parties who are not parents of the subject children (see Aldridge & Keaton (2009) FLC 93-421 at [44-48, 65, 74, 109-112, 119]; Potts & Bims & Ors [2007] FamCA 394 at [8-9]). Nevertheless, the Act does not import any presumption in favour of parents over non-parents in the determination of proper parenting orders (see Aldridge & Keaton at [59-61, 76-81, 83]; Dennett & Norman [2007] FamCA 57 at [53-60]).

2. Although some of the factors prescribed for consideration under s 60CC(3) of the Act refer only to parents, those factors insofar as they concern grandparents may still be considered under s 60CC(3)(m) of the Act, and carry the same weight under whichever provision they are discussed (see Aldridge & Keaton at [111-112, 119]). Consequently, I will deal with the parents and grandparents simultaneously under all of the relevant criteria set out within s 60CC(3) of the Act.

1. The attitude of other adults close to the father was also concerning. The paternal grandfather said he placed the blame for all of the father’s problems upon the mother. He even blamed the mother for the father’s assault of the unknown man in 2001, for which the father was convicted. Even the father’s partner, who is a well qualified carer of children,[142] stoutly believed all of the father’s problems were caused by the mother. Surprisingly, in forming that opinion she relied entirely upon what she has been told by the father, because she admitted she has never met or spoken to the mother, child, or maternal grandmother before. She stridently asserted in cross examination that the father told her he was innocent of the charges of which he was convicted and she unquestioningly accepted his word. She refused to consider the prospect of his guilt, even in the face of official documents verifying it.

   [142] Affidavit of Ms D, par 2; Exhibit F1

2. The disposition of the father, his partner, and the paternal grandfather implied that there is little prospect of the father changing his ways. The single expert said in cross examination that the existence of such unqualified support for the father and his strident views of injustice from those close to him would only serve to exacerbate his emotional instability. But that consideration pertains to the father’s emotional state, not his propensity for family violence.

3. Since the father sent threatening and intimidating text messages to the mother in 2007, the evidence is silent about any further family violence as between the father and mother. The father’s partner confirms that during her relationship with the father she has not had any concerns about family violence.[143]

   [143] Affidavit of Ms D, par 8

4. In those circumstances, it is unlikely that the Court’s orders expose the mother or any other person to an unacceptable risk of family violence (s 60CG(1)(b)).

Section 60CC(3)(k)

1. It is common ground that past Apprehended Violence Orders have now expired. There are no current Apprehended Violence Orders affecting the parties or the child.

2. The mother has recently made application for the revival of an Apprehended Violence Order that previously existed for her protection from the biological father of the youngest child Q. As yet, no fresh order has been made.

Section 60CC(3)(l)

1. The orders made by the Court are least likely to lead to the institution of further proceedings because they endorse the interim residence regime that has now been in place for nearly two years.

2. The re-introduction of the father to the life of the child is fraught with some risk, but inconsequentially so by comparison with that associated with a change of the child’s residence.

Section 60CC(3)(m)

1. An issue was raised about the ability of the maternal grandmother to adequately manage her employment commitments with her child care responsibilities, but the issue was resolved satisfactorily.

2. The maternal grandmother and her partner both work for the same employer, and each is required to undertake rostered night work. They have now each organised their rosters so they are not working at the same time and one of them will always be available to care for and supervise the child.

3. That was not always the case in the past, but on the occasions when they worked simultaneously they made alternate arrangements for care of the child. For example, one stayed home from work, or the child was cared for by the maternal grandmother’s other adult daughter or her former husband, both of whom live in close proximity to them.[144]

   [144] Maternal grandmother’s affidavit, par 7; Single expert report, page 14 par 1

Parenting orders

1. The finding of past family violence means the presumption of equal shared parental responsibility being allocated to the mother and father does not apply. The Court is at large with respect to the allocation of parental responsibility for the child, conformably with his best interests.

2. The maternal grandmother has vacillated in her proposals about parental responsibility for, and residential care of, the child.

3. When she spoke with representatives of the Intervener in July 2009, the maternal grandmother told them the child was settled with her and she intended that the child remain with her. She did not consider herself too old to parent the child and clearly expressed her intention to provide stable, safe care for both the child and Q, choosing to promote their best interests in preference to those of the mother if a conflict arose.[145]

   [145] Affidavit of Ms Y, Annexure JJ1, pages 92-95

4. The maternal grandmother had changed her opinion by the time she later spoke with representatives of the Intervener in September 2009. She then informed them the plan was for the child to return to the care of the mother, although she remained prepared to be the designated carer if needed.[146]

   [146] Affidavit of Ms Y, Annexure JJ1, page 117

5. In her Response filed on 26 August 2010 the maternal grandmother proposed that the mother have sole parental responsibility for the child and that the child live with her, provided she remained living with the child within a radius of 10 kms of the maternal grandmother’s home.[147]

   [147] Orders 1-3

6. When the trial commenced the maternal grandmother accepted the Intervener’s proposal that the proper arrangements for the child were for the maternal grandmother to have sole parental responsibility for the child and for the child to live with her. When she gave evidence in support of that proposal she expressed herself in the manner she had formerly done with the representatives of the Intervener in July 2009. Her evidence was also consistent with comments she made to representatives of the Intervener in another interview in October 2010 when she said she remains concerned about the mother’s capacity in the longer term to provide a solid and stable placement for the child.[148]

   [148] Exhibit INT1, page 11

7. I accept the maternal grandmother’s evidence. Although she did countenance the prospect of the child returning to the care and control of the mother, because of the mother’s continuing improvement, the maternal grandmother has dismissed that idea as untenable. She realises only she can guarantee the security and stability needed by the child.

8. The maternal grandmother has been compelled to make any necessary important decisions affecting the child for the last two years. His school enrolment was one of those decisions. No party has suggested the maternal grandmother has not discharged that responsibility competently.

9. The mother does not now seek allocation of parental responsibility to her.

10. As for the father, his parenting capacity and responsibility is really untested. The evidence does not permit a positive finding that he is a satisfactory recipient of parental responsibility for the child. He has had no interaction with the child since June 2008. Before that, the child spent time with the father irregularly for the period between January 2006 and some time in early 2007. His involvement with the child has been intermittent at best. His proposal that he and the mother have equal shared parental responsibility is simply unworkable.

11. I am satisfied the child’s best interests demand the allocation of sole parental responsibility to the maternal grandmother. I accept the joint submission of the mother, maternal grandmother, Intervener, and Independent Children’s Lawyer on that point.

12. The allocation of parental responsibility for the child is inextricably linked to the determination about his living arrangements.

13. The child is presently well settled with the maternal grandmother. He likes living with her and he is doing well at school.[149] There is no need to disturb the stability of that arrangement.

    [149] Affidavit of Ms Y, par 77

14. The father asserted in cross examination that the child would have a great life living with him. That could be correct, but I am not satisfied that it would be superior to the life he is currently enjoying with the maternal grandmother. Uprooting him from that stable residence is highly undesirable. The father did not adduce any evidence to support a finding that the child’s interests would be any better served by him living with the father.

15. That is not to say that existing arrangements are perfect. They are not. It is regrettable that the child has been denied the opportunity of spending more time with the father, with whom he has a meaningful relationship. That problem requires correction.

16. Although it is common ground the child should spend time with the father, the circumstances in which that should occur remain contentious.

17. The mother is only able to envisage the child spending supervised time with the father.[150] That is consistent with the view she expressed to representatives of the Intervener in February 2010,[151] and to the single expert in February 2010.[152] She cannot foresee a time when the child’s time with the father would be unsupervised.

    [150] Mother’s affidavit, par 68

    [151] Affidavit of Ms Y, Annexure JJ1, page 125

    [152] Single expert report, page 15 par 3

18. The maternal grandmother also considered the time spent by the child with the father should be supervised, but she would still be prepared to abide by the terms of any Court orders.[153] She said she would be prepared to meet with the father to exchange the child with him. The maternal grandmother’s partner also said he would be prepared to exchange the child with the father to assist.

    [153] Maternal grandmother’s affidavit, par 21

19. The parties, other than the father, expressed a wish for the time spent by the child with the father to take place at a contact centre, preferably close to the residence of the child. There is such a supervision facility at Town 1, Queensland.[154] Documents summarising the policies of that centre were tendered.[155]

    [154] Affidavit of Ms Y, Annexure JJ1, page 120

    [155] Exhibit INT4

20. The father said in cross examination he would be prepared to participate in supervised interaction with the child as a staged process towards the dispensation of supervision. The father also said he would be able to meet the cost of the supervision, with the financial assistance of his family if necessary.

21. The father envisaged no difficulty in exchanging the child with any member of the maternal family. He considered his partner could assist in that process if it helped allay any fears held by the maternal family. He asserted he was flexible and open to suggestions.

22. The opposed positions of the parties begs deliberation as to precisely why it is contended the child’s time with the father should be supervised. That issue was addressed with the single expert in cross examination and her explanation for the need for supervision is set out earlier in these reasons. In summary, the single expert was concerned about the emotional instability of the father causing emotional instability in the child, and supervision offered the only reliable bulwark against that outcome.

23. The maternal grandmother also thought supervision was necessary for the child and father to build rapport, but I am not convinced by that reason. The child already has a rapport with the father, and if it is accepted that supervision is useful to build the rapport even further, it follows that when rapport is at its optimum the need for supervision becomes obsolete.

24. The father realises how important it is for the child to have stability in his life. He told the single expert his hope for the outcome of the litigation was for the child “to have stability, for him to be safe, healthy, and happy and be a part of mine and my family’s life.”[156] Although the father may have a different view about what does afford the child stability, safety, health, and happiness, he realises those outcomes are important for the child.

    [156] Single expert report, page 6 par 3

25. I accept the evidence of the single expert and the submissions of the parties that the imperative of emotional stability for the child can only be properly promoted for the foreseeable future by ensuring the time he spends with the father is supervised.

26. The father’s emotional instability has been evident for some years. The medical certificate he tendered to the Court explaining his illness and absence from the trial on 5 November 2010 recited that he still suffers from “anxiety, depression, post traumatic stress disorder with somatic symptomatology relating to ongoing family law matters.”[157] The father’s demeanour in Court during the trial in November 2010 and on 11 March 2011 tends to corroborate his diagnosis of psychological conditions which cause his heightened agitation.

    [157] Exhibit F3

27. On the available evidence, there is no proper basis to infer that the father will overcome his conditions in the short or even mid term. For that reason, there is no option but to impose supervision upon the time spent by the child with the father on an indefinite basis.

28. The imposition of long-term or indefinite supervision of time spent by a child with a parent is generally regarded as undesirable (see Moose v Moose (2008) FLC 93-375 at [119]; H & K [2001] FamCA 687 at [40-41]; Marriage of Bieganski (1993) FLC 92-357 at 79,780), but it still remains an option for final parenting orders (see Re C & J (1996) FLC 92-697 at 83,341-83,342, 83,351-83,352). Although indefinite supervision is undesirable, it is still a better outcome than the option of last resort, which is no interaction between the child and parent at all (see W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 at [112-115]; Re C & J at 83,352). Although the order for supervision is intended to be permanent, that is not to say it is immutable. The principles developed in Rice v Asplund (1979) FLC 90-725 still apply.

29. Given the imposition of supervision is necessary, an issue remains as to the frequency of the time spent by the child with the father.

30. The Independent Children’s Lawyer, with the support of the mother, proposed the child spend supervised time with the father in line with the recommendation of the single expert – being for an undefined period on both Saturday and Sunday, one weekend a month.[158]

    [158] Single expert report, page 17 par 9; Exhibit ICL1

31. The Intervener proposed less frequent time, being for two hours once every two months, plus some additional time arranged around special occasions.[159] Although the Intervener’s Response proposed a frequency of “a minimum of every two months”, in final submissions that was clarified to be “once every two months”. The reasoning of the Intervener for the reduced frequency was that, now being aged 7 years, the child would more likely have sporting and extra-curricular activities on weekends which would be disadvantageously disrupted by him spending more frequent time with the father.

    [159] Response, Order 5

32. The maternal grandmother did not submit that her initial support for the Intervener’s proposal had waned during the trial, in which case I assume she remained supportive of the Intervener’s proposal.

33. I do not accept the submissions of the Independent Children’s Lawyer and mother that the child would derive little, or no, benefit from a continuing relationship with the father, which submissions do not sit easily with their proposal about the frequency of the time the child should spend with the father.

34. The child will derive benefit from a continuing relationship with the father, subject to the child’s emotional stability being inured against the father’s emotional instability.

35. I conclude the child should spend time with the father, under supervised conditions, on a monthly basis. But to reduce inconvenience to the child, the time will be confined to one day rather than two consecutive days per month. Four consecutive hours together on that occasion is satisfactory.

36. The supervised time spent by the child with the father should ordinarily occur at the venue conducted by Contact Centre 1 located at Town 1, Queensland, consistently with the proposal of the Intervener.[160] The details of that service were unknown to the Intervener at the time the proposal was initially made for supervision at a contact centre in proximity to the maternal grandmother’s home.[161]

    [160] Exhibit INT4

    [161] Response, Order 6

37. The orders also provide for the child to retain written communication with the father. That accords with the recommendation of the single expert.[162] The frequency of the written communication is restricted to avoid such communication being used as a tool of oppression by a torrent of correspondence. There is no evidence the father would act in that way, but it is a reasonable preventative measure.

    [162] Single expert report, page 17 par 9

38. Equally, it is important for the child to preserve his relationship with the mother. However, given the harmonious relationship between the mother and maternal grandmother, the orders leave to the discretion of the maternal grandmother the circumstances under which the child spends time and communicates with the mother.

39. The orders prohibit the parties from permitting the child to hear denigration of any of the parties. Every party proposed an order to that effect. The Intervener went even further, proposing that the supervised time spent by the child with the father should be conditional upon the father’s abstinence from denigration of the other parties.[163] I decline to make that order. It is sufficient to make an unconditional injunction.

    [163] Exhibit INT6

40. The orders require the parties to keep one another informed about serious medical incidents affecting the child whilst in their care. The parties also mutually proposed an order of that sort.

41. The maternal grandmother is required to authorise the child’s school principal to release information about the child’s academic progress to the father, and enable him to procure school photographs of the child. In cross examination she agreed to do so. The single expert regards that as appropriate.[164]

    [164] Single expert report, page 17 par 9

42. The parties must also keep one another appraised of their contact details. None of the parties proposed such an order, but it is necessary that they do so in order to facilitate implementation of the other orders. Their residential addresses are presently known to one another anyway.

43. The order requiring the maternal grandmother to present the child to a clinician for participation in play therapy is made in reliance upon the recommendation of the single expert.[165]

    [165] Single expert report, page 16 par 4

44. For those reasons, the orders set out at the commencement of this judgment reflect the child’s best interests.

I certify that the preceding two hundred and seventy (270) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 29 March 2011.

Associate: 

Date:  29 March 2011

     Mother’s affidavit, pars 38, 41, 42; Maternal grandmother’s affidavit, par 3
     Affidavit of Ms Y, par 57