Lowry & Keeton (No 2)
[2024] FedCFamC1F 180
•21 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lowry & Keeton (No 2) [2024] FedCFamC1F 180
File number(s): PAC 1888 of 2021 Judgment of: MCNAB J Date of judgment: 21 March 2024 Catchwords: FAMILY LAW – PARENTING – Where the mother is granted sole parental responsibility - where there is a risk of psychological harm to the child – where ongoing supervision of a parent’s time is considered in the best interests of the child – where the father has an intellectual disability – when the child has a developmental delay – where it is in the best interests of the child for the father’s carers to remain in substantial attendance whilst the child is in the father’s care. Legislation: Family Law Act 1975 (Cth) Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65DA, 65DAA, 65DAC, 65DAE.
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.13, 10.14b
Division: Division 1 First Instance Number of paragraphs: 67 Date of last submission/s: 23 November 2023 Date of hearing: 21 – 23 November 2023 Place: Parramatta Counsel for the Applicant: Mr Karp Solicitor for the Applicant: AS Family Lawyers Counsel for the Respondent: Mr Cohen Solicitor for the Respondent: Gonzalez & Co Counsel for the Independent Children's Lawyer: Ms Giacamo Solicitor for the Independent Children's Lawyer: Harb Lawyers ORDERS
PAC 1888 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS LOWRY
Applicant
AND: MR KEETON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCNAB J
DATE OF ORDER:
21 MARCH 2024
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.Subject to Orders 3, 4 and 5 the mother have sole parental responsibility for X born 2020 (“the child”).
3.The mother shall notify the father via text message of any major decision that needs to be made about the child at least seven days prior to any major decision being made.
4.The father be permitted to provide the mother his views regarding any major decision about the child prior to such decision being made.
5.The mother is to consider any views provided to her by the father before making any major decision about the child.
6.The child live with the mother.
Spend Time with the Father
7.The child shall spend time with the father on the first three Saturdays of every month from 9:00 am to 2:00 pm provided a paid support person or carer, or such other person as agreed by the mother, is substantially present during such time.
8.Notwithstanding Order 7, the mother be permitted to suspend the Saturday time the child spends with the father on four occasions per year for the purpose of taking the child on a holiday.
Changeovers
9.Unless otherwise agreed, changeovers shall occur at M Contact Service, with the parents to equally share in the costs.
Information sharing
10.In the event the child suffers an illness or medical emergency that requires medical attention whilst in either parent's care, that parent will as soon as practicable:
(a)advise the other parent of the nature of the child's condition including any diagnosis, treatment and prognosis;
(b)advise the other parent of the full name and contact details for any health care practitioner or facility the child may attend upon for assessment or treatment.
11.These orders authorise each parent to obtain information to which parents are ordinarily entitled from the child's daycare, pre-school, school, medical and other allied health professionals.
12.Each parent is permitted to provide a copy of these orders to the contact centre, the child's daycare, pre-school, school, medical and other allied health professionals.
Restraints
13.The parents are restrained from:
(a)denigrating the other parent, members of the other parent's family or household in the presence or hearing of the child and shall remove the child from the presence or hearing of any third party who does so;
(b)discussing these Court proceedings in the presence of the child;
(c)allowing the child to play any video or computer/electronic games or view any movies that are not classified as suitable for the child's age, and
(d)preventing the child from attending kindergarten or school or removing the child from kindergarten or school early, unless in the case of an emergency, without the express consent of the other parent.
Parenting Courses
14.The mother shall within 21 days from the date of these orders enrol in:
(a)Triple P (PPP) course or such other parenting course relating to children with intellectual disability; and
(b)Circle of Security Course.
15.The mother shall do all acts and things to complete the courses in Order 14 hereof and shall provide certification of completion of these courses immediately upon receipt thereof to the father.
16.The Independent Children’s Lawyer be discharged.
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 the pseudonym Lowry & Keeton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McNab J
INTRODUCTION
This case concerns parenting arrangements for X born 2020 (aged 3 years) (“the child”). X is the child of Mr Keeton born 1987 and Ms Lowry born 1984.
A feature of this matter is that the father has an intellectual disability which impacts on his capacity to parent. The child has marked developmental delay.
The parties commenced a relationship in 2017 and on the father's account separated in about January 2018. The mother says that the parties separated finally in about January 2021. The child was born in 2020. The mother and the child lived with the father until about 23 January 2021. According to the mother, there was an agreement reached that from 23 January 2021 there would be equal shared care for the child. The father contends that it was agreed that the child would live with him four days per week and three days with the mother.
On about 7 April 2021 the father refused to return the child to the mother on the basis that he was concerned about the care of the child whilst with the mother. The father has withheld the child because of his concerns that he has about the mother's capacity to care for the child and that she has bought the child into conflict with people (including his mother) who he considers may harm the child.
The list of people he believes may harm the child has increased since proceedings were issued to the point that there were about 20 people nominated by the father who the child should not come into contact with. These are the people who have some connection whether by family or otherwise with the mother.
The mother commenced proceedings on 13 April 2021. Orders were made by Judge Obradovic on 28 April 2021 for the return of the child to the mother. The matter has had a number of returns before the Court with orders being made for the return of the child to the primary care of the mother.
The father has repeatedly withheld the child because of his concerns that he has about the mother's capacity to care for the child and that she has brought the child into contact with people (including his mother) who he considers may harm the child (noted at [5]).
On 6 June 2023 orders were made for the child to live with the mother and spend time with the father as agreed between the parents in writing and failing agreement "each alternate week from after daycare or 3.00pm Thursday until before daycare or 9.00am Monday." The orders also provided if the father failed to comply with the orders and withheld the child from the mother, a Recovery Order would be made and orders made for the child to spend supervised time with the father for no more than two hours per fortnight. The father was required to follow recommendations from his psychiatrist/psychologist and general practitioner.
PROPOSALS
The mother seeks by way of final orders in substance that:
(1)She have sole parental responsibility of the child;
(2)The child live with her; and
(3)The father spend supervised time with the child two hours a fortnight, with the costs to be borne by him.
In the alternative, should the Court consider that supervised time is unwarranted the mother seeks that the child spend time with the father as agreed between the parties in writing and failing that each alternate week from after daycare or 3.00 pm on Friday until 5.00 pm on Sunday.
She seeks orders that the father comply with all recommendations, including but not limited to attending appointments and taking medication as prescribed, given by his mental health care practitioners, including the father’s psychiatrist Dr F and the father’s General Practitioner Dr G.[1]
[1]Mother’s Proposed Minute of Final Orders, email dated 23 November 2023.
The father seeks by way of final orders, substantially:
(1)Shared parental responsibility 50/50 of the child on a week about basis.
(2)That the mother and father each enter into a Bond (Undertaking) that they will remain compliant with these Court orders for a period to be determined by the Court.
The father seeks orders that each party is kept fully informed of medical issues and treatment, which was an issue he raised during the trial even although this is covered by standard orders.
Initially the father had submitted a long list of people that he sought to restrain the mother by injunction from permitting the child to come in contact with but by submission of his final orders this list of people had reduced to one person – that is the father’s mother, Ms N.[2]
[2]Father’s Proposed Minute of Final Orders, email dated 23 November 2023.
The ICL seeks by way of final orders, substantially that:
(1)The mother have sole parental responsibility for the child.
(2)The mother notify the father via text message of any major decision that needs to be made about the child at least seven days prior to any major decision being made and enable the father to give his views about that decision, which the mother can then take into consideration, but which are not determinative.
(3)The child live with the mother.
(4)The child shall spend time with the father on the first three Saturdays of every month from 9:00 am to 2:00 pm provided a professional support person, or such other person as agreed by the mother, is present during such time.
(5)The mother enrol in a parenting course.
EVIDENCE
The father has a mild intellectual disability. That diagnosis is confirmed by Mr P, a psychologist, in a report dated 21 November 2021 prepared to detail his clinical and functioning profile for the purposes of the NDIS. The father was initially referred to Mr P for alcohol addiction and anger management. At the time of the report the father’s alcohol problem was in remission and whilst the father reported in his oral evidence an account of becoming intoxicated since that time, it seems that this problem is currently under control.
Mr P's report sets out that tests performed on the father for the purpose of the report, which include an intelligence test that could not be completed as the time that it takes to complete the test was beyond what the father could mentally manage at the time. The testing that did occur showed that the father scored in the very low range in the domains of working memory and processing speed which indicated that the father had major deficits in those two domains of cognitive functioning compared to the normal population and that this could explain the father's problems with learning as well as with emotional regulation. The report noted that the father had difficulties performing critical adaptive behaviours necessary for independent living. The report did note that in terms of the father's strengths, the father's results in the domains of communication, home living, health and safety and social domains are his relative strengths. The report stated "this would explain why [the father] is able to verbally communicate with others, form certain friendships, look after his daughter and his own health and safety, as well as manage his home without much support required".[3]
[3]Mr P, Psychologist, Report 21 November 2022, pages 3 – 5.
In relation to giving assistance to the father to manage his anger and responses, Mr P expressed the opinion that with counselling and therapy, the father is more capable of keeping calm, but he did also say that the father’s intellectual disability makes it more difficult for him to process information at a level required to be an independently functioning adult and this is contributing to emotional dysregulation.
The father has difficulty reading and writing and he presents as a person who has difficulty processing information (which is confirmed by Mr P’s report). He gets very loud and angry when frustrated or challenged. In his evidence before the Court he was not able to refer to dates by month. When asked if something happened in February, he would respond to that by asking whether that was the first or second month. Throughout the course of giving evidence and when observing him in Court, when subjected to some challenge he would become almost uncontrollably upset with there being angry outbursts and pacing. His legal representatives (who behaved with considerable patience and care towards him) had little control over him. This is not to suggest that the father was doing this to be deliberately disruptive or disrespectful – it appeared to be a manifestation of his disabilities.
However, when giving evidence he did give an unfiltered picture of what he is like to deal with if he faces challenges or where somebody disagrees with him. The father relied on affidavits that were written for him. I am not suggesting his evidence was concocted however the language used and the style of reasoning expressed is not that of the father's as he made apparent in the witness box. The father’s legal representatives did what they could to present the father’s evidence in a coherent, ordered form. I raise this point to make plain to any person reading the father’s trial affidavit that his oral evidence was not controlled or coherent.
What is clear from his evidence and from the evidence of the mother is that they both love and care for their daughter. The difficulty posed by the father's behaviour is that he is overzealous, has difficulties dealing with doctors and medical staff, has poor relationships with the police and is prone to explosive, uncontrolled outbursts in front of the child.
The father has the benefit of substantial supports through external providers and there are no reports that he has hurt his child or exposed her to physical harm whilst the child has been in his care and where he has had support workers assisting. The risks are that he too readily takes his child to hospital for medical examinations that are unwarranted and that he conducts his own examinations to try and find fault with the mother’s care of the child. He then becomes upset with medical practitioners and staff at medical facilities if they do not share his assessment of the child’s health. There is also the risk that he exposes his child to his unregulated behaviour which, while he might not physically hurt the child, he may expose her to psychological harm.
The Court has had the benefit of a detailed Family Report prepared by Dr H dated 21 February 2023. Dr H gave oral evidence and was cross-examined. The written report of Dr H is comprehensive and prepared after she had met with the father, the father and child, the mother, the father’s support worker, the father’s psychologist Mr P and the paternal grandmother. The report provides a clear-eyed assessment by an experienced psychologist of the issues faced by the parents and child largely as a result of or arising from the conduct of the father.
At [12] of the report Dr H states:
[Mr Keeton] told me at the outset of the interviews that he has an intellectual disability. During the interview process he became dysregulated when I asked him about certain topics, for example, his interactions with the police. I ended the first interview for this reason. He was calmer throughout the second interview. [Mr Keeton] made numerous threats to complain about me during both interviews and accused me of saying things that I had not. I requested that [Ms L] be present during both interviews to support [Mr Keeton], but also to ensure that there was someone neutral present who could, if need be, vouch for my conduct.[4]
[4]Dr H, Family Report dated 21 February 2023 (“Family Report”).
Dr H states that she had spent 4.5 hours with the father for the purposes of preparing the report.[5]
[5]Family Report at [35].
The report confirms that:
(a)the father has previously had problems with misuse of alcohol and that he had received treatment from Mr P his psychologist. That issue appears to be now under control and is not identified as a risk.
(b)the father has issues with anger and in particular in dealing with the police or medical practitioners (who he perceives is not taking his or his daughter's health issues with adequate seriousness). The evidence confirms that a number of medical practices have refused to see him because they do not wish to deal with the abusive behaviour of the father.
(c)the father has complained about a range of people in the orbits of the mother's family which complaints do not appear to be rationally based.
There is no evidence that the mother has any disability or lack of capacity to care for the child. She lives in a two bedroom dwelling with an outdoor area which contains the child’s swings and trampoline. The mother lives on her own. The mother is employed as a casual sales assistant at a retail store.
LEGAL PRINCIPLES
Orders in respect of children are made under Part VII of the Act, where the meaning of a "parenting order" is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
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 the criteria which must be considered in arriving at a conclusion as to what is in the child's best interests (s 60CC).
The Act imports a rebuttable presumption that a child's best interests are served by an order allocating equal shared parental responsibility for the child to the parents (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 significant issues (s 65DAE).
The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child's best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.
In the event an order is made allocating equal shared parental responsibility to the child's parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court's discretion about the child's care arrangements is at large, though the discretion must still be exercised in the context of the child's best interests being the paramount consideration.
BEST INTERESTS – PRIMARY CONSIDERATIONS
Section 60CC(2)(a)
The Benefit of the Child having a Meaningful Relationship with Both Parents
The child has spent regular time with each parent and it is apparent from the terms of the Family Report that each parent loves and cares for the child. It was not raised in the course of the proceedings that the child does not benefit from having a meaningful relationship with each of her parents.
Section 60CC(2)(b)
The Need to Protect the Child from Physical or Psychological Harm from being Subjected to, or Exposed to, Abuse, Neglect or Family Violence
Section 60CC(2)(b) – alleged physical abuse
There is no evidence of physical abuse of the child. I was concerned when the father gave evidence regarding his daughter and his concerns about her care whilst with the mother that he was engaging in overzealous examinations of her – particularly her genitals, but it has not been suggested that this was a specie of physical abuse. When questioned the Family Report Writer did not raise concerns of physical abuse and the mother did not raise that as a concern.
Section 60CC(2)(b) – alleged “serious psychological harm”
The Act requires advertence to the need to protect the child from “psychological harm” which may be caused by subjection or exposure to “abuse”.
For that purpose, “abuse” is defined to include causing “serious psychological harm” to the child, howsoever that may occur and regardless of whether or not it is intentional (s 4(1)).
The father’s dysregulated behaviours do present a risk of psychological harm to the child. As was noted by Dr H in her evidence before the Court, the risks for the child arise from the child being exposed to his dysregulation (shouting, storming about and being unable to calm) and the risk that the child faces is of the child being isolated whilst in the care of her father because the father’s behaviour isolates him from others because of the conflict he creates. This creates the risk of the child living in what the expert referred to as “a bubble”[6] with the father. The problem for the child is that it is a bubble full of conflict because of the father’s behaviour which the child cannot understand.
[6]Transcript of Recordings, 23 November 2023 (“Transcript”) page 12, lines 10 – 22., page 7, lines 12 – 19
An additional aspect of risk is that the child has what the expert described as “marked global developmental delay”[7] and she is being asked by the father about whether people (whilst in the care of the mother) are doing sexual things to her. The expert expressed the view that a child with these developmental delays in receptive and expressive language would have no idea what the questions meant and the child faces risks of harm if she is subjected to repeated questioning from the father as to whether she has been sexually abused. Questioning of this kind can lead to long term psychological damage. A Police Report dated 13 March 2023 (Exhibit ICL 3) notes that the father stated that he has been taking photographs of the child’s genitals and asking the child “whether someone is doing sexual things to you?”. The Police Report notes that when the child was spoken to by the police (on unrelated matters) she only responded in grunts. Dr H also expressed concern that the father was taking an excessive number of photographs of the child’s genitals, that this child with marked global developmental delay would have no idea what doing sexual things means (as would be the case for a child without those attributes).
[7]Transcript, page 9, lines 7 – 21
The police reports tendered into evidence reveal the effects of the father’s chaotic behaviour. There are reports where he has accused maternity nurses of touching the child too hard when patting her to get her to burp and then calling the police as a result. He also called the police when he became concerned that the child’s head was not being sufficiently supported when a nurse was assisting feeding the baby with a bottle. There is correspondence from a medical clinic dated 12 August 2022[8] referring to the father’s threatening behaviour and advising the mother that she was unable to take the child to the clinic any longer.
[8]Exhibit A9.
The mother’s evidence by her trial affidavit sets out instances where the father has subjected her to abusive texts and verbally abused her in front of the child at handovers including handovers attended by the police.
The father’s volatility and his highly conflictual attitude towards the mother and people in her sphere and his own mother means that the child risks being exposed to high levels of conflict whilst spending time with the father. The father has multiple targets for his antipathy including the aforementioned, but also the police, medical practitioners and health workers.
There is no evidence that the child is at risk in the care of the mother, whether at the hands of the mother or anyone connected to the mother including the paternal grandmother. The father has made allegations that a partner of the mother has sexually assaulted the child and the mother has had sex in front of the child. Those allegations have not been substantiated either in this proceeding or by the police. The father has expressed concerns about the child having contact with the paternal grandmother and wants orders that restrict the child’s contact with her. He raises allegations by his trial affidavit of emotional and physical abuse at the hands of his mother and stepfather when he was a teenager. The grandmother filed an affidavit in the proceeding and was cross-examined. I accept the grandmother’s evidence that the father was extremely difficult to manage from his teenage years on. That difficulty is made clear by the father’s extensive criminal history set out in the documents produced by the NSW Police. The effects of the father’s misuse of alcohol through those years and the issues that created are made plain and I accept the grandmother’s account of the father’s abusive and dysregulated behaviour at changeovers including those that take place at police stations.
The evidence does not support a finding that the grandmother presents a risk to the child.
CONCLUSIONS REGARDING RISK
The father does present a risk to the psychological health of the child for the reasons set out above and the orders of the Court must respond to that risk.
BEST INTERESTS – ADDITIONAL CONSIDERATIONS
Section 60CC(3)(a)
Any Views Expressed by the Children and any Factors, such as the Children’s Maturity, that the Court Thinks Relevant to the Weight it Should Give to the Child’s View
The child is too young to express any view.
Section 60CC(3)(b)
The Nature of the Relationship of the Children with Parents and other Relevant Parties
The child has a relationship with each of the parents and has spent substantial time with each of them. The child also has a relationship with the paternal grandparents although not with them together. There is a fractious relationship between the father and his mother which has been longstanding. The paternal grandfather has a fractious relationship with the maternal grandmother. There is no cooperation between the parents and changeovers have been the source of a great deal of aggravation and argument.
Section 60CC(3)(c)
The Extent to which each of the Children’s Parents has Taken, or Failed to Take, the Opportunity to Participate in Decisions, Spend Time and Communicate with the Children
Each parent has spent time with the child. The father has sought to make decisions about the child’s health and welfare which have been problematic and caused the child to be subjected to an excessive number of examinations, both by him and by health professionals. The mother participates actively in the child’s life.
Section 60CC(3)(ca)
The Extent to which each of the Children's Parents has Fulfilled, or Failed to Fulfil, the Parent's Obligations to Maintain the Children;
The mother works and the father is in receipt of health benefits and assistance. There was no suggestion by either party or by evidence tendered by the ICL that the child is neglected.
Section 60CC(3)(d)
The Likely Effect of any Changes in the Children’s Circumstances, including the Likely Effect on the Children of any Separation from a Parent/Grandparent they have been Living with
The child has been living with the mother and spending time with the father. The order proposed by the ICL and the orders I make will have the father spending less time with the child and subject to the substantial attendance of a professional carer or support person for the father. The orders make provision for the father to spend time during daytimes from 9.00 am to 2.00 pm for the first three Saturdays of every month. This is a change in the time that the father has been spending with the child but I do not think that change will have any negative impact on the child. The child will continue to spend time with her father and the expectation is that the substantial attendance of a professional carer or support person will improve the child’s time with the father and reduce the identified risks to the child whilst she is in the father’s care.
Section 60CC(3)(e)
The Practical Difficulty and Expense of Children Spending Time with and Communicating with a Parent and whether this will Substantially Affect the Children’s Right to Maintain a Relationship with Both Parents on a Regular Basis
There is no practical difficulty. As to expense, I understand from the evidence that the father’s NDIS funding will meet the expenses associated with the spend time arrangements. The NDIS plan (Exhibit R2) indicates that the father has total funding of about $102,000 per year with about $87,000 of that for what is described as total core support which includes a “social community and civic participation budget for support to include community based activities”.
Sub-section (3)(f) and Sub-section (3)(i)
The Capacity of Parents/Grandparents to Provide for the Needs of the Children and their Attitudes to the Children
I have dealt with the father’s capacity above. The mother presented as a person who did not appreciate the full extent of the work that she has ahead of her in being the primary carer of this young child with significant developmental delay. I emphasise that I do not intend this as a criticism of her. She has had to care for the child and deal with the father both through this litigation and otherwise, which tasks would fully occupy her. I do think that she might get some assistance from enrolling in and completing a parenting course, not as a result of any finding that she is an inadequate parent, but to give her some assistance which she might draw on to support her in parenting a child with developmental delay.
Section 60CC(3)(g)
Maturity, Sex, Lifestyle and Background of the Children/Parents
These matters have been canvassed above.
Section 60CC(3)(h)
Whether the Children are Aboriginal or Torres Strait Islander Children
This is not an issue.
Section 60CC(3)(j)
Any family violence involving the child or a member of the child’s family and if a family violence order applies or has applied to the child or a member of the child’s family.
An Apprehended Domestic Violence Order of two years’ duration was placed against the father for the mother’s protection, in mid-2022. The orders stated in relation to the father:
1. You must not do any of the following to [Ms Lowry] or anyone she has a domestic relationship with:
A) assault or threaten her
B) stalk, harass or intimidate her, and
C) intentionally or recklessly destroy or damage any property or harm an animal that belongs to or is in the possession of [Ms Lowry]
The father breached the ADVO in late 2022 and was arrested and was again arrested for breach of the ADVO in late 2023. There was a further breach a few days later and the father was charged but no further ADVO conditions were added. There have been other similar breaches with no further ADVO variations required.
There are allegations/cross-allegations of family violence with the father accused of abusive communications particularly at changeovers. Given the vehemence of the father’s expressions of upset in the Court setting, I accept the mother’s evidence that she has been subjected to family violence in the form of verbal abuse at changeovers and that verbal abuse has occurred in the presence of the child. That verbal abuse has occurred even when the changeover took place at a police station.
It is hoped that the arrangements as ordered will lead to fewer interactions between the parties and a reduction in family violence and tensions arising between the parties at changeovers.
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
The orders made have in mind that the substantial supervision of the father’s time will lead to fewer incidents between the parties and thereby are likely to lessen the likelihood of the institution of further proceedings in relation to the child.
Section 60CC(3)(m)
Any other Factors or Circumstances that the Court Thinks is Relevant
Whilst the authorities refer to the undesirability to orders that provide for the ongoing supervision of a parent’s time with a child, given the particular circumstances of this case such orders are warranted and are in the best interests of the child.
CONCLUSION
Parental Responsibility s 65DAA
Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
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 the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (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 significant issues (s 65DAE).
The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.
In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.
Given the high level of conflict between the parties it is not appropriate for there to be shared parental responsibility. The father has limited capacity to make long term decisions regarding the health, welfare and education of the child and the best interests of the child are best served by the mother having parental responsibility for the child but giving the father the opportunity to express his views on major decisions before they are made.
SPEND TIME ARRANGEMENTS
I will make the spend time arrangements outlined above at [49]. I make those orders to promote the relationship between the father and the child and in order to protect the child from the risks that have been identified.
I certify that the preceding sixty-seven (67) numbered paragraph is a true copy of the Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 21 March 2024
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