Mackie and O’Neill

FEDERAL CIRCUIT COURT OF AUSTRALIA

MACKIE & O’NEILL

[2016] FCCA 1607

Catchwords:
FAMILY LAW – Children – balancing of risk from mother’s partner with benefit of a meaningful relationship with mother – family violence – child to live with the father.

Legislation:

Family Law Act 1975 ss.61DA, 60CC

Cases cited:
Goode & Goode [2006] FamCA 1346

Applicant:

MR MACKIE

Respondent:

MS O'NEILL

File Number:

SYC 6366 of 2012

Judgment of:

Judge Boyle

Hearing dates:

9, 10 and 11 May 2016

Date of Last Submission:

11 May 2016

Delivered at:

Sydney

Delivered on:

30 June 2016

REPRESENTATION

Counsel for the Applicant:

Mr Harper

Solicitors for the Applicant:

DGB Lawyers

Counsel for the Respondent:

Mr Cook

Solicitors for the Respondent:	Williamson Isabella Lawyers
Counsel for the Independent Children’s Lawyer:	Mr Jackson

Solicitors for the Independent Children’s Lawyer:

Maguire & McInerney

ORDERS

That the father shall have sole parental responsibility for the child X born (omitted) 2011.
That prior to implementing any decisions in relation to long-term parental responsibility for the child, except in the case of an emergency, the father shall attempt to contact the mother and obtain her views as to the proposed decision and consider her views.
That the child shall live with the father.
That the child shall spend time with the mother as follows:
(a)Until the commencement of the 2017 school year:
(i)Each Tuesday between 8.30 am and 6.30 pm.
(ii)Each Thursday from preschool between 4.30 pm and 6.30 pm.
(iii)Each Sunday between 8.30 am and 6.30 pm.
(b)From the commencement of the 2017 school year:
(i)Each Thursday from after school until 6.30 pm.
(ii)Each Sunday from 9 am until 7 pm, except for the first Sunday of every month;
(c)That the mother’s time in the preceding orders 4(a) and 4(b) may be suspended during school holiday periods for up to two weeks in any 12 month period upon the father giving the mother not less than four weeks’ notice in writing.
(d)At such other times as agreed between the parties in writing
That the child shall spend time with the mother on special occasions as follows:
(a)On the child and mother’s birthdays and the birthdays of all children in the mother’s household, from school until 6.30 pm if the birthday falls on a school day.
(b)On the child and mother’s birthdays and the birthdays of all children in the mother’s household, from 2 pm until 7 pm if the birthday falls on a weekend or non-school day.
(c)On Mother’s Day from 9 am until 7 pm.
(d)Commencing 2016 and in each even-numbered year thereafter on Christmas Day from 8 am until 2 pm.
(e)Commencing 2017 and in each odd-numbered year thereafter, on Christmas Day from 2 pm until 8 pm.
(f)Commencing 2017 and in each odd-numbered year thereafter, on Easter Sunday from 8 am until 2 pm.
(g)Commencing 2018 and in each even-numbered year thereafter, on Easter Sunday from 2 pm until 8 pm.
That for the purposes of changeover and where changeover does not occur at preschool or school, the father shall deliver the child to the mother’s residence at the commencement of time and the father or the paternal grandparents shall collect the child from the mother’s residence at the conclusion of time.
That the mother be permitted to communicate with the child on a daily basis by way of telephone or Skype or Facetime.
That the mother and father shall do all things possible to provide the child with privacy for communication with the other parent, whether such communication if by telephone, Skype or Facetime and do all things necessary to encourage the child not to use a speaker system if he is engaged in a telephone conversation with the other parent.
That the mother is restrained by injunction from allowing the child to come into contact with Mr N except with the father’s prior written consent.
That the mother and father are restrained by injunction from consuming alcohol to a level where they would be over the limit to drive a motor vehicle in New South Wales whilst the child is in their care.
That the mother and father are restrained by injunction from using illicit drugs during times when they are spending time with the child and for 48 hours prior to spending time with the child.
That the mother and father are restrained from allowing the child to remain in the presence of any person who has consumed alcohol to excess and/or used illicit drugs.
That the mother and father are restrained from physically disciplining the child, or permitting any other person to so do.
That each party shall keep the other party informed at all times of the names and addresses of any treating medical practitioner, or other health professionals who treat the child and shall authorise those practitioners to provide the other party with all information that they are lawfully able to provide about the child in relation to the treatment of the child.
That each party shall inform the other party as soon as is reasonably practicable of:
(a)Any medications prescribed for the child while the child is in that person’s care; and
(b)Any medical, dental or health appointment which is scheduled for the child.
so that both parents may attend medical, dental or health appointments for the child.
That each party is authorised to receive directly from the child’s school or other places of education a copy of all reports including school reports, school photos (at the cost of the parent requesting the photos), school newsletters and other documents normally provided to parents.
That each of the parties shall do all acts and things necessary to engage with Relationships Australia or Catholic Care in (omitted) to commence counselling to assist their communication and the parties shall each meet one half of the costs of such counselling.
That should the counsellor from Relationships Australia or Catholic Care recommend either of the parties undertake other courses or counselling, they shall follow such recommendations.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6366 of 2012

MR MACKIE

Applicant

And

MS O'NEILL

Respondent

REASONS FOR JUDGMENT

These are parenting proceedings with respect to the child of the parties X born (omitted) 2011. X is currently aged four years and eight months.

Applications

The father’s Application filed 24 September 2014, sought orders for sole parental responsibility for the child, that the child live with him, that the mother have reasonable time with and communicate with the child as agreed between the parties from time to time and that she be restrained by injunction from bringing or allowing the child to be brought into contact with Mr N. Mr N is the mother’s partner.
The mother filed a response on 14 October 2014 which sought final orders that the father do all acts and things necessary to cause the child to be returned to the mother, that she be restrained from allowing Mr N to live at the same premises as her and X without either the approval of the Department of Family and Community Services (“FaCS”), an order of the Court, or the consent in writing of the father.
The parties and Independent Children’s Lawyer (“ICL”) all provided Case Outlines setting out the documents they relied on.
The father relied on:
a)Father’s application filed 24 September 2014.
b)Notice of child abuse filed 24 September 2014.
c)Affidavit of Ms L sworn 21 April 2016.
d)Affidavit of Mr Mackie sworn 21 April 2016.
e)Two affidavits of Ms O sworn 24 September 2014 and 7 December 2014.
The mother relied on:
a)Response filed 14 October 2014.
b)Affidavit of Ms O'Neill sworn 29 April 2016.
c)Affidavit of Mr N sworn 29 April 2016.
d)Affidavit of Ms O sworn 29 April 2016.
Ultimately neither party relied on the affidavits of the maternal grandmother, Ms O. It was common ground between the parties that she is extremely unwell and that whilst initially she had supported the father’s case, she had more recently supported her daughter.
At the commencement of the hearing there was an issue about two further affidavits the mother sought to rely on, being one of Mr G sworn 11 December 2014 and one of Ms S sworn 11 December 2014. Objection was taken to the mother relying on these affidavits in circumstances where no notice had been given to the father that she would be relying on them, the affidavits being filed in the interim proceedings. It was sought the witnesses be available for cross-examination only by telephone. The affidavits were permitted to be relied on provided that the makers of the affidavits were present in court to be cross-examined. Ultimately those documents were not relied on by the mother and are not read.

The Exhibits

The parties tendered the following exhibits.
a)Father’s Exhibit 1. CDT test completed by the father.
b)Father’s Exhibit 2. Urinalysis drug test results of Mr N dated 2 March 2016.
c)Father’s Exhibit 3. Apprehended Violence Order (“AVO”) in relation to Mr N dated 21 April 2015 and the variation of that order dated 12 November 2015.
d)ICL Exhibit 1. Four letters of request from the ICL for drug urinalysis testing of the parties.
e)ICL Exhibit 2. Computerised operational policing system (“COPS”) entries in relation to the father.
f)ICL Exhibit 3. COPS entries in relation to Mr N.
g)ICL Exhibit 4. Material produced under subpoena from Dr P, Paediatrician.
h)ICL Exhibit 5. Speech Pathologist assessment in relation to X, dated 10 December 2014.
i)ICL Exhibit 6. Transcript of SMS exchanges between the parties.
j)ICL Exhibit 7. Material produced under subpoena from Department of Family and Community Services (“FaCS”).
k)ICL Exhibit 8. ICL’s proposed minute of order.
At the commencement of the hearing the father sought orders as contained in his Case Outline as follows:
1. That subject to the following order the father have sole parental responsibility child X born (omitted) 2011 "(the child").
2. That:
a. Prior to the father implementing any decision in relation to long-term parental responsibility for the child, except in the case of an emergency he shall attempt to contact the mother, obtain her views as to the proposed decision and consider her views; and
b. The mother shall have such parental responsibility as is necessary for her to obtain any information about the child that is normally available to a parent including but not limited to any information from a school, sporting, or medical professional dealing with the child.
3. That the child shall live with the father.
4. That the child shall spend time with the mother
a. until the commencement of the 2017 school year:
i. Each Tuesday between 8:30 AM and 6:30 PM
ii. Each Sunday between 8:30 AM and 6:30 PM
b. From the commencement of the 2017 school year:
i. Each Tuesday from after school until 6:30 PM
ii. Each Thursday from after school until 6:30 PM
iii. On the Saturday at the end of Week 1 in each term from 9 AM to 7:30 PM (and for the same period each alternate week thereafter)
iv. On the Sunday at the end of week one in each term from 9 AM to 6:30 PM (and for the same period each alternate week thereafter)
5. That for the purpose of implementing the preceding order:
a. Changeover
i. which is to take place "after-school" shall happen at the school the child attends.
ii. Which is at the commencement of any time on a weekend shall commence by the mother collecting the child from the father's residence
iii. Changeover otherwise shall be implemented by the father or his nominee attending at the mother's residence.
b. Notwithstanding any other order for time the child shall spend time with:
i. The mother on Mother's Day from 9 AM to 6:30 PM
ii. The father on Father's Day from 9 AM to 6:30 PM
c. That the mother's time in the preceding order may be suspended during school holiday periods for up to 4 weeks in each calendar year (no more than 2 weeks of which may be consecutive) upon the father giving the mother not less than 4 weeks notice in writing.
6. The mother's time is conditional upon her compliance with the following injunction:
7. The mother shall be and hereby is by injunction restrained from:
a. Permitting the child to come into contact in any way, communicate with or be in the presence of Mr N.
b. Permitting the child to come into contact with Mr N's children A and B other than under the supervision of an adult.
8. That each party forthwith inform the other in the event that the child requires non-routine or emergency medical treatment.
The mother sought orders as set out in her Case outline:
1. That the parties have equal shared parental responsibility for the child X, born (omitted) 2011.
2. That the child live with the Mother.
3. That the child spend time with the father as agreed between the parties from time to time but failing agreement between the parties on a two week cycle as follows:
a. In week one:
i. From 4.00pm until 7.00pm on Monday;
ii. From 4.00pm until 7.00pm on Wednesday; and
iii. From 4.00pm Friday until 7.00pm Sunday.
b. In week two:
i. From 4.00pm until 7.00pm on Tuesday; and
ii. From 4.00pm until 7.00pm on Thursday.
4. That the child spend time with each party for one half of each NSW school holiday period as agreed, but failing agreement:
a. In even numbered years, with the mother for the first half of each school holiday period and with the father for the second half of each school holiday period; and
b. In odd numbered years, with the father for the first half of each school holiday period and with the mother for the second half of each school holiday period.
5. That the child spend time with the parties on special occasions as agreed, but failing agreement as follows:
a. On a child's birthday;
i. If the child's birthday falls on a non-school day; with the mother from 9.00am to 2.00pm and with the father from 2.00pm to 7.00pm.
ii. If the child's birthday falls on a school day in even numbered years, with the mother from 4.00pm to 7.00pm and in odd numbered years, with the father from 4.00pm to 7.00pm.
b. On the parties' birthdays;
i. If the party's birthday falls on a non-school day; with that party from 9.00am to 7.00pm
ii. If the party's birthday falls on a school day; with that party from 4.00pm to 7.00pm.
c. On the siblings' birthdays;
i. If the sibling's birthday falls on a non-school day; with the party whom the sibling resides from 9.00am to 7.00pm.
ii. If the sibling's birthday falls on a school day; with the party whom the sibling resides from 4.00 pm to 7.00 pm.
d. On Father's Day, with the father from 9.00 am to 7.00 pm.
e. On Mother's Day, with the mother from 9.00 am to 7.00 pm.
f. At Christmas, with the Mother from 9.00 am Christmas Eve to 2.00 pm Christmas Day and with the Father from 2.00 pm Christmas Day to 5.00 pm Boxing Day.
g. At Easter, with the Mother from 9.00 am Easter Saturday to 2.00 pm Easter Sunday and with the Father from 2.00 pm Easter Sunday to 5.00 pm Easter Monday.
6. Unless otherwise expressly stated in these Orders changeovers (where such changeovers do not coincide with the commencement or conclusion of school) are to occur with the father collecting the child from the mother's residence at the commencement of the father's time and the father returning the child to the mother's residence at the conclusion of the father's time.
7. Each party is to facilitate the child communicating with the other parent by telephone at any time the child requests to do so.
8. Each party is to keep the other party informed of his or her residential address and notify the other party of any change to the residential address at least fourteen (14) days in advance of any change.
9. Each party is to keep the other party informed of a contact telephone number, and notify the other party of any change to the contact telephone number at least forty eight (48) hours in advance of the change.
10. Each party is to keep the other party informed at all times of the names and address of any treating medical practitioner or other health professionals who treats the child and is to authorise those practitioners to provide the other party with all information that they are lawfully able to provide about the child and to communicate with the other party in relation to the treatment of the child.
11. Each party is to inform the other party as soon as reasonably practicable of:
a. any medication prescribed for the child while the child is in the party's care; and
b. any medical, dental or health appointment · which is scheduled for the child while the child is in the party's care.
12. Each party is to inform the other party as soon as is reasonably practicable if the child is hospitalised at any time or is required to attend with a medical professional to seek emergency medical treatment.
13. Each party is authorised by this Order to receive directly from the child's school or other places of education a copy of all school reports for the child, school photos (at the cost of the party requesting the photos), school newsletters, and other documents normally provided to parents.
14. Each party is restrained by injunction from:
a. Consuming alcohol in excess in the presence of the child or consuming alcohol in excess in the 12 hours before and during any period the child spend time with them;
b. Using any illicit drugs;
c. Taking prescription drugs in excess of or less than their prescribed dosage;
d. Allowing the child to remain in the presence of any person who has consumed alcohol to excess, illicit drugs at all, or prescribed medication other than in accordance with the relevant prescription;
e. Denigrating the other party or members of the other party's family to the child or in the presence of the child or at all;
f. Allowing the child to remain in the presence of any other person denigrating the other party or members of the other party's family; and
g. Physically disciplining the child.
15. That the appointment of the Independent Children's Lawyer be extended for a period of six months following the making of these Orders.
16. That the Independent Children's Lawyer be at liberty to request that the parties undertake supervised, chain of custody urinalysis in respect of illicit substances on the following conditions:
a. That the test is performed within 24 hours of such a request being received by the party;
b. That the testing be in accordance with Australian/New Zealand Standard 4308:2008;
c. That the parties provide the results of any such test to the Independent Children's Lawyer within 48 hours of receipt; and
d. That there be no more than one such request each calendar month.
17. That if the Mother receives a request in accordance with Order 16 she do all things to ensure that Mr N also engages in testing in accordance with the provisions of that Order.
At the conclusion of the hearing the ICL provided a minute of orders: [1]
[1] Exhibit ICL 8.
1. That the father have sole parental responsibility for the child.
2. That prior to implementing any decisions in relation to long-term parental responsibility for the child, except in the case of an emergency, the father shall attempt to contact the mother, obtain her views as to the proposed decision and consider her views.
3. That the child live with the father.
4. That the child shall spend time with the mother as follows:
a. Until the commencement of the 2017 school year:
i. Each Tuesday between 8.30 am and 6.30 pm.
ii. Each Thursday from preschool between 4.30 pm until 6.30 pm.
iii. Each Sunday between 8.30 am and 6.30 pm.
b. From the commencement of the 2017 school year:
i. Each Thursday from after school until 6.30 pm.
ii. Each Sunday from 9 am until 7 pm, except for the first Sunday of every month;
c. That the mother’s time in the preceding orders 4.a and 4.b may be suspended during school holiday periods for up to two weeks upon the father giving the mother not less than four weeks’ notice in writing.
5. That the child’s time with the mother will be suspended in order 4 above on special occasions and the child will spend time with the mother on special occasions as follows:
a. On the child’s, mother’s and sibling’s birthdays from after school until 6.30 pm if the birthday falls on a school day.
b. On the child’s, mother’s and sibling’s birthday from 2 pm until 7 pm if the birthday falls on a week day.
c. On Mother’s Day from 9 am until 6.30 pm.
d. Commencing 2016 and in each even-numbered year thereafter on Christmas Day from 8 am until 2 pm.
e. Commencing 2017 and in each odd-numbered year thereafter, on Christmas Day from 2 pm until 8 pm.
f. Commencing 2017 and in each odd-numbered year thereafter, on Easter Sunday from 8 am until 2 pm.
g. Commencing 2018 and in each even-numbered year thereafter, on Easter Sunday from 2 pm until 8 pm.
6. That for the purposes of changeover and where changeover does not occur at preschool or school the father is to deliver the child to the mother’s residence at the commencement of time and the father or the paternal grandparents will collect the child from the mother’s residence at the conclusion of time.
7. That the mother be permitted to communicate with the child on a daily basis by way of telephone or Skype;
8. That the mother is restrained by injunction from allowing the child to come into contact with Mr N at the mother’s residence or at Mr N’s residence.
9. That the mother is restrained by injunction from taking the child to the (business omitted) premises operated by Mr N at (omitted).
10. That the mother and father are restrained by injunction from consuming alcohol in excess while spending time with the child.
11. That the mother and father are restrained by injunction from using illicit drugs during times when they are spending time with the child and 48 hours prior to spending time with the child.
12. That the mother and father are restrained from allowing the child to remain in the presence of any person who has consumed alcohol to excess and/or used illicit drugs.
13. That the mother and father are ordered to do all things possible to avoid listening to any telephone conversation or listening and sighting any Skype communication involving the child and the other parent, and she will do all things necessary to encourage the child not to use a speaker system if he is engaged in a telephone conversation with the other parent.
14. That each party is to keep the other party informed at all times of the names and addresses of any treating medical practitioner or other health professionals who treat the child and is to authorise those practitioners to provide the other party with all information that they are lawfully able to provide about the child and to communicate with the other party in relation to the treatment of the child.
15. That each party is to inform the other party as soon as reasonable practicable of:
a. Any medications prescribed for the child while the child is in that person’s care; and
b. Any medical, dental or health appointment which is scheduled for the child.
16. That each party is authorised to receive directly from the child’s school or other places of education a copy of all school reports for the child, school photos (at the cost of the parent requesting the photos), school newsletters, and other documents normally provided to parents.

The father largely supported the ICL’s proposal, save that he sought the mother collect X from his home on Sunday mornings and that the parties attend counselling through Relationships Australia to improve their communication. He further sought that order 8 not refer to “at the mother’s residence or Mr N’s residence” and instead be “except with the father’s prior consent in writing with respect to special occasions”.
Counsel for the mother indicated in final submissions, that the mother consented to orders (7), (10) and (16) in the ICL’s minute. He indicated that the mother pressed for an order for equal shared parental responsibility, that the child live with the mother and if not, then that there be overnight time. She further sought mutual orders that no party use any physical discipline for the child, nor permit any other person to do so. The mother agreed that counselling with the father would be helpful.

Background

The father is currently aged 37 years. He resides with his mother and her partner.
The mother is aged 28 years. She resides with her partner Mr N, her son W born (omitted) 2004 and the two children of her relationship with Mr N, Y born (omitted) 2012, Z born (omitted) 2015. Additionally, A born (omitted) 2008 and B (omitted) 2010, the children of Mr N’s previous relationship, reside in their home.
The parties were in a relationship from 2006. They commenced cohabitation in about 2009. W, the mother’s child from a prior relationship lived with them. W was born when she was 15 years old. When the parties commenced a relationship the mother was 18 and the father 27.
X was born on (omitted) 2011. They separated shortly thereafter in December 2011 and X continued to live primarily with his mother. The father moved into his mother and her partner’s home in (omitted) and he has continued to reside there since.
Shortly after separation the parties entered into an arrangement where the father was spending time with X three nights per week.
There was a dispute between the parties when X was about seven months old. The mother was concerned that overnight time was not working for W and that the father was not consistent in spending time with him. She was also concerned about the father’s drug and alcohol use. She made X available to spend time with the father at her home and at his mother’s. The father’s response to this was to retain X for four days and nights. When cross-examined, the father regarded this as a reasonable strategy on his part to get the mother to negotiate with him about time with X. He did not consider this may have caused any difficulties for X, despite him being seven months old at that time.
Orders were made on 26 October 2012 by consent which provided, in essence, for the parents to have equal shared parental responsibility and X to live with the mother. After some build up, X was spending time with the father each Monday and Wednesday from 4 pm till 7 pm and alternating Saturdays and Sundays from 9 am till 4 pm and on special occasions.
Additionally, there were orders restraining the parents’ conduct, such as making derogatory remarks about the other parent or members of the other parent’s family in the hearing or presence of the child and restraining the father from bringing the child into the presence of any person under the influence of drugs or alcohol. The father was restrained from consuming alcohol resulting in excess of .05 blood alcohol content whilst ever the child was with him.
The orders required the parents to attend for dispute resolution six months after the making of the orders, to consider whether X’s needs or circumstances required a variation of the orders. It was noted that the parents intended to attend a parenting after separation course.
On 17 October 2013 further orders were made by consent that increased time with the father, including a full weekend day from 9 am to 6 pm each week. The various restraining orders referred to remained. The parents were obliged to keep each other informed about medical and other matters concerning the child.
The parties agreed that after 12 months they would participate in dispute resolution, which was required before an application could be made to vary the orders. X was at this stage 2 years.
In June 2012 the mother commenced living with Mr N and his two children A and B. A and B’s mother had moved away from the area and she was spending limited time with those two children. It seems that situation has changed such that A and B are currently spending some time with their mother every alternate week.
On (omitted) 2012, Y was born to the mother and Mr N.
In January 2013 an Apprehended Violence Order was made on behalf of Mr N’s former partner for her protection from him.
As a consequence of events detailed below, X commenced residing with the father on 13 September 2014. W has not lived with the mother since that date.

W's Allegations

The incident which precipitated these proceedings occurred on 12 September 2014, between Mr N and the mother’s son W. W was 10 years old at the time. The incident and its aftermath are significant for X because of the risk of him being exposed to family violence and the mother’s capacity to prioritise and protect X over her partner. X has not resided with his mother since. There are differing versions of what occurred.
The mother says that on 12 September 2014 she arrived home just after 6 pm:
When I walked in the front door W came from his room and started crying and said ‘Mr N has taken my cricket stump and yelled at me.’ I said to him, ‘Why did this happen?’ He said, ‘It was because A told Mr N about what I had said to her on the way home from the bus.’ I took him to the garage to sit down and talk to him and he said, ‘Mr N held the cricket stump to my throat and threatened to kill me.’ W then turned and picked up the cricket stump and started playing with it. I had a look at W’s neck and there was no mark on it and he settled down quite easily and was calm. Later on we were going out and he seemed normal. He was playing with the cricket stump in the garage as if nothing had happened.[2]
[2] Mother’s affidavit 29 April 2016 para 59.
The mother took A and B to their maternal aunt, taking W with her. X was at his father’s. W went with her to the workshop whilst she did some painting.
The following day the mother arranged for the father to take X and W, so that she could speak to Mr N without them present. The mother was, on her version, concerned to find out what had happened from Mr N. W said to the father, later repeated to the Police and workers from FaCS, that Mr N threatened him:
Last night Mr N held a cricket stump to my throat and said he was going to kill me; He [Mr N] got the stump from the cricket set. He held the pointy end to my throat. He threatened to stab it into my throat while I was asleep. He said if I spoke he would kill me.[3]
W later said to FaCS that he also threatened to kill his maternal grandmother.[4]
[3] Father’s affidavit 21 April 2016 paras 23 and 26.
[4] ICL Exhibit 7, p193.
The father telephoned the mother and advised that W had told him what had happened and he was going to the police. The mother asked him not to, saying she was dealing with it. X was retained by the father and has lived with him since.
Mr N’s account is that A was upset and told him that W said her grandmother died in a car accident that day. Mr N went into W’s room to ask what had happened:
When I went in, W was lying on his bed about halfway down twirling a cricket stump in his hands above him. I said to W “What did you say to A?” He did not reply. I said to him again “What did you say to A?” He said “Nothing, I never said anything to her.” I then took the cricket stump from his hands and I said, “Yes you did, what did you say to her?” W said “We were playing a game and she got upset.” I said to him “What did she get upset about?” He said “I told her that her grandma had died in a car accident.” I then said “Why would you say that? How would you like it if someone told you that your grandmother or mother had died in a car accident?” He did not reply. I then left the room with the cricket stump and then W yelled out at me “Give me back the cricket stump. Nanna gave it to me”.[5]
[5] Affidavit of Mr N, 29 April 2014 paras 4 – 6.
Mr N denied ever threatening or touching W with the cricket stump.
W told FaCS workers that when they thought he was asleep “mum got up him [Mr N] … I heard mum yelling at him.”[6] The father reports W telling him his mother “told him [Mr N] to move out. Mum said if he is going to be such a child he might as well go back to pre-school.” Neither the mother nor Mr N referred in their affidavits to an argument between them the night of the incident.
[6] ICL exhibit 7, p194.
Mr N conceded in cross-examination that he and the mother had “a small argument about it” that night and that she “probably yelled at him … I know she left with the kids but I don’t think she asked me to leave”. The mother denied in cross-examination she and Mr N argued about the incident. She said that the children were left with Mr N’s sister on a pre-arranged basis, not as a response to the incident between W and Mr N. The argument is significant given the mother’s evidence to this court that she had no doubt that nothing like what W said had happened. This would suggest she was not always so certain. Notwithstanding this uncertainty at the time, she supported Mr N, such that neither W, nor X could live with her.
Mr N and the mother maintain that W had been behaving poorly in the week leading up to the incident. As Mr N put it, “W had caused us all a great deal of grief throughout that week with his reckless behaviour and verbal abuse.”[7]
[7] Affidavit of Mr N, 29 April 2016 para 7.
The examples given by Mr N of “reckless behaviour and verbal abuse” under cross examination were, firstly, W going to a friend’s place straight from school, when he should have accompanied A home. They did not know where he was. When he was located he said he had not come home “Because I’m sick of the fights and I’m upset about the fight this morning.” Mr N and W disagreed about whether there had been a fight and W argued with and was abusive to Mr N.
The second example given by Mr N occurred whilst waiting in the car for the mother at (omitted) with A and W. W wanted to go with his mother then screamed at him about waiting in the car. The children started turning the light in the car on and off, which degenerated into W screaming at A and Mr N telling him to stop. W lost his temper and was kicking his feet and shouting. [8]
[8] Ibid para 8.
Neither of these incidents appear to be anything beyond what might be considered as ordinary poor behaviour by a 10 year old. W raising that he was sick of arguments is concerning particularly when coupled with the mother telling Police that Mr N became aggressive, erratic and yelled after using ICE, as is referred to below.
As a consequence of the involvement of FaCS, W went to live with his maternal grandmother. He told FaCS that he did not want to return home while his mother continued to live with Mr N. W thought his mother was taking Mr N’s side. [9] W’s assessment was correct.
[9] ICL Exhibit 7, p242.
On 15 September 2014 Mr N was charged with common assault of W and stalk/intimidate intend fear. He pleaded not guilty and was ultimately not convicted. An Interim Apprehended Violence Order (“AVO”) was made for the protection of W[10].
[10] ICL Exhibit 3.
W has since recanted his version of what occurred with Mr N. The context of that bears some examination. W saw his mother on approximately 5 occasions between September and November 2014. He saw Y and possibly A and B, when he saw the mother. He did not see X. Prior to September he had lived all his life with his mother and these children lived with him as step-siblings.
In about November 2014 the maternal grandmother moved to (omitted) in Queensland and W went with her. He saw his mother on about 4 occasions for various periods of time over 6 months. The maternal grandmother became very ill during the course of 2015 and in June 2015 W moved to live with his maternal grandfather and partner on (omitted) in Queensland.
W was upset at being left with unfamiliar people, particularly his grandfather’s partner as his grandfather was frequently away for work. His grandmother remains extremely ill and has returned to live in the (omitted) area. W re-commenced residing with the mother on 1 August 2015 and has remained living with her since.
The mother has maintained that W was not telling the truth about being threatened by Mr N. She said during a visit in February 2015 he told her that what he had said about Mr N was not true.[11] She told the Family Report writer that she was “one hundred percent” sure W was not assaulted, although “Mr N may have yelled” and been angry[12]. She gave similar evidence in cross examination.
[11] Mother’s affidavit para 106.
[12] Family Report para 22.
A final AVO was granted on 21 April 2015 for 2 years, which prevented Mr N approaching or contacting W. The AVO was varied on 12 November 2015, to allow W and Mr N to live in the same home.
The mother did not discuss W’s return with FaCS workers prior to it occurring. She maintains that Mr N did not live fulltime in the home, nor have any contact with W, until the AVO was varied. W spent weekends at the home of extended family or friends, so that Mr N could be in the home with A, B, Y and Z.
The mother reports W telling her after he returned to live with her, that he made the allegation because “I was angry that everyone else had a dad except for me.”[13] When cross-examined the mother said that it was W’s idea to go to the Police to have the AVO varied so Mr N could resume living in the home.
[13] Mother’s affidavit para 140.
W turned 11 shortly after returning to the mother’s home. There were limited options about where he could live. W has never met his father. His grandmother was extremely unwell, such that he could not live with her. He did not want to live with his maternal grandfather. The mother’s failure to support W meant he was unable to live with her, was removed from his siblings, his school, and everything familiar to him. It is impossible to place any weight on his retraction of the allegation, given the consequences for him of speaking about Mr N’s threat and violence. Even if what W said was not true, the mother chose Mr N over him.
This was not the first occasion that there was concern about Mr N’s conduct towards W. On 26 May 2014 a report was made to FaCS that, amongst other things, “Mr N dragged W out of the bath stating that he had done something wrong as well and hit him, leaving bruising on his hip in the mark of a handprint”.[14]
[14] ICL Exhibit 7, p 43.
The person making the report said that this had occurred in the last couple of months. When cross-examined Mr N and the mother conceded that this incident had occurred and that he had smacked him hard enough to leave a bruise. Mr N could not recall why he smacked W. Neither the mother nor Mr N referred to this incident in their affidavits.
What has happened to W has been extremely significant for X. Were it not for W raising his treatment by Mr N with the father and the subsequent involvement of FaCS and the Police, there was no issue about X living with his mother and Mr N. The parties had agreed on gradual increases in X’s time with his father and would in all likelihood have continued to do so.
That Mr N was not convicted in a criminal court does not resolve this issue. In weighing the likelihood of whether the threat was made by Mr N, I take into account the consistency of W’s report and the consequences for him of making it. The report of smacking by Mr N hard enough to leave a bruise is very serious. That incident is not denied by the mother and Mr N but was not volunteered by them. Taking these matters together it is on the balance of probabilities, more probable than not that W was threatened by Mr N.
The mother prioritised her relationship with Mr N over acting to protect her children, most particularly W. Even if what W said was not true, he was clear that he did not want to live in the home if Mr N was there. The mother chose Mr N over W and subsequently X, given the consequence that her ongoing relationship with Mr N has had on X’s living arrangements. If issues arise with respect to family violence perpetrated by Mr N on X, or anyone else in the household, there can be no confidence that the mother will protect X from being the victim of, or exposed to, family violence.
There are no doubt pressures living with six young children, particularly where they have different relationships with each of the adults with whom they live and each other. The comments of the other children in that household to the report writer that they missed X and he no longer lived with them because W had “lied” are troubling as it appears that W has been scapegoated within that household. W asked the report writer about at what age a child can decide where he lives. In observation when Mr N joined the children, W is recorded as greeting Mr N “quietly initially” and “appearing to be nervous”[15].
[15] Family report para 44.
Further difficulties between Mr N and W will impact significantly on X if he is living in that household. The report writer’s observations do not provide any comfort that there has been any resolution of Mr N and W’s relationship.

Mr N and the mother’s use of drugs

The mother says she only ever used drugs recreationally. She first used marijuana when she was 14 years old and used speed and ecstasy when she was about 15. She fell pregnant when she was almost 16 and ceased drug use. She did not use again until she commenced a relationship with the father when she was 18 years old. They used speed, not very often and ecstasy more regularly. The father introduced her to ICE and she used it with him from time to time. She never used any illicit substance when she was pregnant. She refers to the father having used drugs since he was 15 years of age, commencing with marijuana and then speed, ecstasy, cocaine and ICE.[16]
[16] Mother’s affidavit 29 April 2016, paras 238-239.
The mother denied when cross examined that she misused prescription drugs, in particular oxycontin. Given her frank admissions with respect to use of other substances, her denial is accepted.
The father agrees that the mother did not use any illicit substances when pregnant with X. The father does not believe that the mother has used amphetamines or ICE from at least 2015 to date. He relies on her appearance to form that opinion and says she lost a lot of weight when using.
The mother’s evidence is that she has not used any illicit drugs since before she fell pregnant with Z in approximately July 2014. The mother provided results of urinalysis testing from 17 February 2015 to 29 February 2016. One result from 12 January 2016 had an issue with the sample being diluted, as shown by creatinine levels, which meant that the negative result may not be reliable. All the results were clear.
The mother says she and Mr N commenced their relationship in late January 2012 and first used ICE around March 2014. Her evidence initially was they both last used in June/July 2014. She refers to her usage between March and June/July 2014 as on a social basis, probably every couple of weeks and that Mr N’s usage was about the same. When cross-examined she conceded: there were times he took it without her; he used ICE more often than she did; it was difficult for her to be certain when Mr N ceased using ICE.
She conceded that there was an acceleration in their use of ICE over the period March to June/July 2014. They shared a $50 bag between them and only ever used one bag on any one occasion. Once or twice they used it in the garage with the door locked whilst there were children asleep in the house.
The mother rejected the proposition that she was neglecting the children when she was locked in the garage using ICE. She agreed that she should not have done it but said that as they were asleep the children were not being neglected. It is impossible to accept this assessment. Children sometimes wake during the night – they get sick, have a nightmare, wet the bed, all of which requires adult assistance. Y was approximately 18 months old at this time.

She agreed that using ICE possibly affected her judgment and impacted upon her capacity to care for the five children. The mother is recorded as telling the police[17] that she was concerned Mr N’s behaviour became aggressive and erratic when using ICE. In cross-examination she described him as yelling and short tempered. She denied that he became physically violent when using ICE. She agreed that she could be erratic, by which she meant all over the place and not happy if she was using ICE.
[17] ICL Exhibit 3, para 48.
Mr N’s affidavit provides no detail of when he used drugs nor the circumstances, despite drug use being a major issue in these proceedings. He refers to there being “a handful of occasions in the preceding 12 months during which I have used crystal methamphetamines on a social basis”.[18] This contradicts his statement to the family consultant that he last used approximately 18 months before the interview on 5 November 2015 and his oral evidence. Mr N and the mother have consistently minimised their involvement with ICE and its impact upon their capacity to parent.
[18] Affidavit of Mr N 29 April 2016 para 14.
In cross examination Mr N said he first used ICE 2 to 3 years earlier, after he commenced a relationship with the mother. He was not sure when he stopped using it but thought it could have been prior to the incident with W. He said they usually used it in the garage if doing it at home, increasing from 1 to 2 to 3 times a month.
Mr N agreed that using ICE made him aggravated, erratic and short tempered. He argued with the mother and he did not parent well as he was short tempered. There were 5 young children living in the house at the time. He has not done any drug rehabilitation. In late 2015 he completed a Triple P Parenting Programme, as did the mother. This was after W returned to live with them, when there was further FaCS involvement. He said he was referred to counselling by FaCS but provided no evidence of the content or frequency of that counselling.
The father referred to a conversation with the mother following W’s allegations in September 2014 where she acknowledged “Mr N does have a problem [with crystal meth] … there’s no one to support him. I’m the only one and I love him.”[19]
[19] Mother’s affidavit para 38.
Mr N provided clean drug screens on 3 occasions between October 2014 and November 2014. These were requested by FaCS. Only one was completed within the 24 hour time frame required from the request being made.[20]
[20] Family Report para 51.
He was requested to provide drug screens on 9 December 2014 and 11 January 2015. His evidence is he was unable to do so because he had misplaced his driver’s license and photo identification was required. He does not have any other photo identification and a temporary license does not have his photograph.
He was asked to attend a urinalysis test following a request on 2 May 2016. When cross examined about his failure to complete the test he agreed that the mother had told him about it and that he could not recall why he failed to attend. He denied failing to do so because it would have returned a positive result. I accept that his providing a urine sample would not have assisted the mother’s case.
Mr N returned three positive drug tests from samples collected on 25 February 2015, 5 March 2015 and 2 March 2016. With respect to the first two, Mr N and the mother maintained that he was using over-the-counter medication given to them by a pharmacist with respect to a sinus infection. On the third occasion, Mr N says that he was using some form of anti-nausea and anti-diarrhoea medication and that may have caused a false positive.
The father tendered the complete drug screen results of Mr N’s three positive tests.[21] Initially testing is done by an immunoassay test and on all three results the presence of an amphetamine type substance was noted, which required further testing.
[21] Exhibit F2.
The results then refer to Further Confirmatory Testing (Mass spectrometry). Under that category, there is then a list of drugs: amphetamine, methylamphetamine, methylenedioxy-methamphetamine (MDMA), methylendioxy-amphetamine (MDA), phentermine, ephedrine, pseudoephedrine. On all three tests, amphetamine and methylamphetamine were detected. On the test of the sample collected 25 February 2015, pseudoephedrine was also detected.
No evidence was produced by a pathologist that interprets these tests. A letter was annexed to Mr N’s affidavit from a pharmacist, along with the receipt for Duro-Tuss sinus liquid dated 24 February 2015. The pharmacist provided a Drug Information Group document. There was also a letter from a general practitioner, Dr N, which only recounts what Mr N told the doctor. There was no compelling evidence put in the mother’s case that would permit going behind those test results, which detected the presence of amphetamine and methylamphetamine in Mr N’s urine on three occasions.
Mr N was convicted of driving with a mid-range concentration of alcohol on 4 June 2003. On 23 November 2008 he swore at the Police, was held back by one of his mates, handcuffed and taken home by the Police. He agreed in cross examination he behaved like a “drunken idiot”. He was not charged[22].
[22] Exhibit ICL3.
Police were called to arguments between Mr N and his former partner, Ms M, at times Mr N had consumed alcohol. On 8 February 2009 they argued over a salad at a family barbecue when children were present. No one was charged. On 20 December 2009 Mr N agreed he and Ms M had been drinking all afternoon and argued about A. Ms M was approximately 7 months pregnant. The COPS entry states Mr N pushed a motorbike over and left. Police took Ms M to the hospital due to concerns about her pregnancy following the argument. Mr N said in cross examination that it was a long time ago, he remembers there was an argument but could not remember much else.
On 25 October 2010 Mr N agreed he threw a glass at a television and broke it after he had been drinking. He agreed he was angry and upset at the time. He was given a lifetime ban from the (omitted) Hotel for punching and damaging a juke box. He gave evidence that he thought he was banned from the (omitted) Hotel in (omitted), although he could not remember what he had done that caused the ban.
Drug and alcohol use by Mr N creates a risk for X from Mr N being aggressive, erratic, short tempered and yelling whether it is directed at X, or other members of the household. Managing the stress of caring for 6 children is heightened if there is continuing drug or alcohol use. On the evidence, I cannot be satisfied that Mr N has ceased to using drugs and alcohol, particularly ICE. This puts X at risk.
The mother’s prioritising her relationship with Mr N makes it less likely that she will seek assistance when there are problems in their relationship including family violence. I cannot be satisfied that she will protect X.

Father’s use of drugs and alcohol

The mother alleges that the father drinks 5 to 6 alcoholic drinks each day and often drinks to severe intoxication. This included during their relationship him drinking to a point where he wet the bed, urinated in a corner of the room and was unable to stand. Further that he regularly drove a car whilst drinking including with X in the car.[23]
[23] Family Report para 27.
On 21 February 2003 the father was charged and convicted, of drink driving. On 29 July 2006 the father was convicted of possession of a prohibited substance (marijuana) and of driving with a mid-range prescribed concentration of alcohol (“PCA”), and driving unlicensed. On 11 July 2007 the father was convicted of driving with a low range PCA and driving whilst disqualified, for which he was fined.
The father told the report writer that he had one conviction with respect to drink driving, when in fact he had three. When cross examined he said he did not know why he would have said one because he was aware there were three on his record and those records would be available.
The report writer noted the father’s presentation on the day of the interviews with respect to his memory and ability to articulate, to the extent that she was concerned he may have a brain impairment or be suffering the long term effects of drug and alcohol abuse[24]. His presentation in the witness box over a lengthy cross-examination was not consistent with the report writer’s observations. He was lucid and responsive in the witness box. The father’s explanation was that he was nervous and stressed as he had been told the report carried a lot of weight and that may be the case.
[24] Family Report para 60.
The report writer suggested that the father complete random urinalysis and carbohydrate deficient transferrin (“CDT”) testing, which could provide some reassurance about his current drug and alcohol usage.[25]
[25] Ibid para 60.
The father has completed random urinalysis testing on 8 occasions when requested between 17 October 2014 and 2 March 2016. The first test did not meet the sample integrity criteria, as the level of creatinine was too low. The father’s evidence is that he had been working in the morning prior to taking the test and drank a lot of water. The father provided a further test when he was next able to obtain an appointment being 4 November 2014. Nine tests were completed by the father, all of which were clear.
The father admitted to smoking a small amount of marijuana during 2015 to the report writer. He made the admission despite having clear urinalysis tests during 2015.[26] His evidence is that he used ICE socially when he and the mother were in a relationship at times they did not have X in their care. He stopped using ICE in April 2014 and last used marijuana in about February 2016. The admissions made by the father with respect to marijuana were given in circumstances where he had clear urinalysis tests and he chose to make admissions.
[26] Ibid para 18.
The father completed a liver function test on 30 December 2011, following separation.[27] The results are unremarkable. He then completed a CDT test on 4 April 2016. The report notes that the levels are raised “not high enough to indicate probable recent alcohol excess.”[28]
[27] Father’s annexure “A”.
[28] Exhibit F1.
The father denied using alcohol to the excessive degree suggested by the mother. He agreed when cross examined he made some “silly choices” regarding drinking and driving. He conceded there were one or two occasions in the past 12 years, other than the three occasions for which he was convicted, when he drove over the limit.
Mr G was a friend of the father’s with whom he fell out, after Mr G “hit the drugs pretty hard.” Mr G swore an affidavit in the mother’s case in interim proceedings on 11 December 2014.
On 2 January 2015 the father argued with Mr G at the (omitted) Hotel and threw a beer over him. He admitted that in a police interview and to this court. He was alleged to have kicked Mr G’s car and jumped on the bonnet. He denied doing that. He said he followed Mr G out of the pub and Mr G drove the car at him causing him to land on the bonnet. The area was not covered by CCTV and there were no witnesses. The Police observed “a very small dent on the bonnet which was barely visible” and no other damage to the car.[29] Neither the father nor Mr G were charged in relation to damage to the car.
[29] Exhibit ICL 2.
The father was charged with common assault with respect to throwing beer and pleaded guilty but no conviction was recorded pursuant to section 10 of the Crimes Act NSW.
Although the father has used drugs and alcohol at times in his life to excess and in an anti-social manner, there is no evidence of current problematic use of drugs or alcohol. His evidence is that he has attended at local neighbourhood gatherings and drunk alcohol and that was where he last smoked marijuana. On that occasion X was not with him, he stayed until midnight, drank 6 to 8 drinks and smoked marijuana. These gatherings happen every 3 to 4 weeks. The father’s evidence is that he does not always drink at these functions and may if drinking have 4 alcoholic drinks. There is no reliable evidence that X has been put at risk, or neglected, through the father’s consumption of drugs and alcohol.

The Law

The best interests of X are paramount when considering appropriate parenting orders. The Family Law Act 1975 (Cth) (“The Act”) provides the legislative pathway to determine parenting proceedings.[30]

The Primary Considerations

[30] Goode & Goode [2006] FamCa 1346.

Section 60CC (2)

(a) the benefit to the child of having a meaningful relationship with both of the child's parents;

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The primary considerations under the legislation highlight the tension between ensuring that X has a meaningful relationship with each of his parents and that he is adequately protected from family violence.
It is clear that X will benefit from a meaningful relationship with both of his parents. He was in the care of his mother for the first 3 years of his life and has been in the care of his father for the past 18 months.
There is no evidence of any risk to X in the care of his father. Rather, X appears to be developing well.
X has had had daily telephone or electronic communication with his mother and the orders will ensure that continues. This assists X to maintain a meaningful relationship with his mother.
An injunction has been in place since 15 October 2014 which has restrained the mother from permitting Mr N to come into contact with X. The report writer gave evidence that the injunction is unworkable for anything other than short periods of time with X, given the care arrangements for all the children in that home and the difficulty of Mr N staying somewhere else. X would love to see his mother more than he does now. She described significant relationships as requiring the rhythm of ordinary days: time before drop offs, playtime after school, time before sleep.
The mother told the report writer that there was no family violence in her relationship with Mr N. She conceded that Mr N threw a heater up the stairs and that he was stressed at the time. The mother referred to the stress caused by taking on a business commitment. The incident occurred in approximately March 2014, with the maternal grandmother and children present. The report writer commented that the mother appeared to minimise any violence experienced by the household from Mr N[31]. The mother presented similarly when she gave her evidence. The report writer’s evidence that the mother has clearly prioritised her relationship with Mr N over protecting and supporting her children is accepted. So is her concern that as the mother does not believe the children are at risk, there is no necessity to protect them from Mr N.
[31] Family Report para 24.
The mother did not readily make any concessions with respect to Mr N’s behaviour. For example, only when confronted by Police or FaCS records did she agree that Mr N could be ill tempered, aggressive and erratic after using ICE.
The report made to FaCS on 14 May 2014 of W being hit by Mr N hard enough to leave a bruise, was during the period the mother admits she and Mr N were using ICE. Despite their admissions about drug use, neither she nor Mr N volunteered any information about that incident. It was only conceded when they were confronted with FaCS material during cross examination.
There can be no confidence that X’s needs will be prioritised by the mother over Mr N, nor that of any of the children. That means that whenever Mr N is in the home, X’s safety cannot be guaranteed.
X is 4 years old and may not pose the same parenting challenges as W. If Mr N loses his temper with any member of the household, whether as a consequence of using ICE or not, X is at risk of being the victim of, or exposed to, family violence.
Mr N was convicted of assault upon his previous partner Ms M, who is the mother of A and B on 12 February 2011. He told the report writer that there was a “domestic dispute” with Ms M and he held her while she attacked him. He initially said there were no charges from the incident.[32] When cross examined by Mr Harper, Mr N agreed that Ms M was his first serious adult relationship. He was “not sure” whether he was convicted of assault upon her, although he agreed he was when presented with the records. He was initially dismissive that he was guilty of doing anything, despite his guilty plea. The Police records reveal Ms M was soaking wet and covered in a white powder. Mr N denied pouring a bottle of soft drink over her, although he agreed he tipped washing powder over her.[33]
[32] Family Report para 32.
[33] Exhibit ICL 3.
Incidents between Mr N and Ms M, as referred to previously in the judgment, generally involved excessive use of alcohol. As a result of the incident on 12 February 2011 an AVO was granted for Ms M’s protection, which included an order restraining him from approaching her, or the children, within 12 hours of consuming intoxicating liquor or drugs.[34]
[34] Ibid.
Once appraised of the totality of the Police material, the report writer viewed Mr N as having engaged in “quite significant family violence”. This is clearly the case. It predates any reported use of ICE, which is therefore not a factor in these episodes of family violence.
The mother maintains that the father behaved aggressively towards her and others, particularly when affected by drugs and alcohol. The father’s criminal record, most recently of throwing a beer over Mr G, is poor. There are text messages[35] that have passed between the father and mother which do not reflect well on either of them, in terms of their ability to remain focused on issues relating to X and not devolving into accusations and offensive language and name calling. Both parents agree that they should get assistance with their communication and that there has been some recent improvement, as evidenced by the text messages.
[35] Exhibit ICL 6.
Mr N said he had sought assistance from a counsellor to control his temper and that he no longer used illicit substances and drank rarely now, especially to excess. He provided no evidence with respect to the counselling. When cross examined about arguments with the mother and whether he calls he names, he admitted to calling her a “bitch” in an argument within a month of this hearing. The argument had “something to do with the way our life is now” and “possibly the fact that me and my kids have to leave the house so that X can come over for the day”. Mr N’s resentment of the situation was apparent. He agreed that arguments about that take place at the home, possibly with children present. The mother is simply complying with orders requiring Mr N and his children to be absent the home. It is not a situation of her creation rather it was caused by concerns over his conduct.
For Mr N to behave in this manner gives no confidence that he will support the mother in complying with orders, in a situation that is no doubt distressing for her. Instead, one is left with the impression that Mr N is incapable of seeing he has had any role in causing the situation, is unable to consider the impact of his actions and will persist in arguing, irritated with the mother.
The report writer accepted the proposition that care of six children requires competent and co-ordinated parenting. There is no reassurance from the conduct of Mr N that he is capable of sustaining a competent and co-ordinated parenting arrangement with the mother.

Section 60CC(3)
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.

X is 4 years old. Even if he were able to express his views, he has not the age, nor maturity, for any weight to be placed on them.

Section 60CC(3)(b) the nature of the relationship of the child with:

(i) each of the child's parents; and

(ii) other persons (including any grandparent or other relative of the child);

X was observed by the report writer to be confident and at ease with both his parents.[36] X is progressing well in his father’s care and will be starting school in 2017. The evidence suggests that he is happy, settled and well adjusted, and that there is a loving relationship with his father. There is no issue that X has a good relationship with his mother and would love to be spending additional time with her. The difficulty with that occurring is the mother’s failure to regard there as being a risk from Mr N and therefore her lack of protective behaviour. There is also the issue of the mother being required to care for 6 children aged 11 to 15 months without assistance when Mr N is required to be absent.
[36] Ibid para 52.
X was clearly delighted to see Mr N during the report interviews and a positive exchange was observed.[37] This does not mean that X is safe with Mr N. The report writer was explicit when cross-examined about her observation of X with Mr N suggesting that X was at no risk: “it was clear X wanted to hug Mr N; it was clear X looked into his face and soaked him up; those things do not mean he has not been abused”.
[37] Ibid para 44.
The mother chose her relationship with Mr N over W and X, given neither of them could live with her following W’s disclosures. She was not candid with respect to family violence perpetrated by Mr N, nor his drug use, which exacerbates the risk of his becoming aggressive, erratic and short tempered. This precludes the mother from being a reliable supervisor of X spending time with Mr N. No supervisor was proposed by the mother.
The observations of X with his sibling group, including A and B, reveal an affectionate relationship and he was noted as being “the happiest he had been in all the observations”[38]. A restriction has been imposed on time between A, B and X. Concerns were raised by the father about the behaviour of those children towards other children. The report writer does not support limitations on their time together. There is no objective evidence of any issue with respect to those children. There is no basis for a continued restriction on X being able to spend time with all the children in the mother’s home.
[38] Family report para 43.
X has a close relationship with his paternal grandmother and Mr C, with whom he lives. The paternal grandmother particularly provides the father with a great deal of assistance with X’s care, which is of benefit to X. She was an impressive witness, who is committed to supporting her grandson whether the father continues to reside with her or not.
The mother and father have both facilitated X spending time with his maternal grandmother and there is no issue that relationship should be fostered.

Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i) To participate in making decisions about long-term issues in relation to the child;

(ii) to spend time with the child; and

(iii) to communicate with the child.

Both parents have done all that they could to be involved in all aspects of X’s life. This is not an issue that assists particularly in determining X’s best interest.

Section 60CC(3)(ca) the extent to which each of the parents has fulfilled, or failed to fulfil the parent’s obligation to maintain the child

This is not a significant factor in determining X’s best interests.

Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i) either of his parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he has been living;

X has now spent almost 2 years living with his father in his paternal grandmother’s home. He is an only child in that household.
In his mother’s home X is in the middle of a sibling group of six children. He will be able, as a consequence of these orders, to spend time with all his siblings, including B and A.
The restriction with respect to time with Mr N shall remain in place, as it has done since 2014. Although X would clearly like the resumption of that relationship, there can be no confidence that would be safe for him and it is therefore not in his best interests.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.

The practical difficulty of X spending time with his mother is the presence of Mr N, as is canvassed elsewhere in the judgment.
The mother has 5 children in her care, one of whom is not yet 2 years. The father shall be responsible for transport where changeovers are not from school.

Section 60CC(3)(f) the capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child)

to provide for the needs of the child, including emotional and intellectual needs

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

These sections are dealt with together, given the issues in this matter.
Each of the parents have the capacity to provide for X’s physical and intellectual needs. So do X’s grandmothers, particularly his paternal grandmother with whom he resides.
There is a concern about each of the parent’s capacity to meet X’s emotional needs. The mother has raised a concern that the father will not adequately support X’s relationship with her, which would not provide for his emotional needs. She puts this on the basis that the father has not provided X for time with her when required to do so by the orders of 22 December 2014. Those orders, which varied similar orders of 15 October 2014, provided, inter alia, for overnight time with the mother each Tuesday and Thursday.
The father has not provided X for overnight time as was required, since April 2015. The father did this on the basis that he and his mother, regularly saw Mr N at the home when X was collected or delivered for time. X also told him on multiple occasions that he had seen Mr N, or Mr N was at his mother’s home. The father asserts the mother was not complying with the order restraining her from bringing X into contact with A, B and Mr N.
There are a number of occasions where it is conceded by the mother and Mr N that he has been present when X has come or gone from the mother’s home, although she denies direct contact occurring. These circumstances have caused the father to have no confidence that she is abiding by the injunction. This has been exacerbated by the mother’s attitude, as evidenced in a text message dated 31 January 2016:
“… the only reason Mr N is not allowed contact with X is because that is what you made me agree to the first time we went to court. It was not a condition that the judge put in place. Your memory must be really bad. Also the order is that Mr N is not to be present when he is with me, which he isn’t. Mr N was at his home, which we left once X was dropped and simply walked out to his car to get something. You were already 10 minutes late and he didn’t know how much longer you were going to be as you can be up to an hour late. He went straight back inside and X did not have contact with him…”[39]
[39] Exhibit ICL 6 p 68.
Unsurprisingly, the father is not confident that the mother has abided by orders, nor will in the future. This lack of confidence is shared by the Court. This makes overnight time in the mother’s house impracticable, as there can be no confidence Mr N will be absent.
From April 2015 there was correspondence between the solicitors, resulting in an agreement for time for X to spend time with the mother shifting to 3 occasions each week, daytime only, on 22 May 2015. The mother had very few options in this “negotiation” given that the father withheld X from time with her. However, his reasons for doing so are explicable in terms of providing protection for X, which was at the expense of time with his mother.
Given the findings made about the mother and Mr N with respect to family violence and risk to X, it is difficult to be critical of the father. Whilst his approach towards the mother could have been handled more sensitively and perhaps then have achieved a more timely outcome for X, the mother’s attitude demonstrates no preparedness to put the responsibilities of parenthood first.
The father appears to have stepped up since X came into his care. He has ensured that X has had his health needs attended to, been committed to speech therapy and attendance at preschool. X is progressing well in his care.

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

X is a 4 year old boy who appears to be developing well.

Section 60CC(3)(j) Any family violence involving the child, or a member of the child’s family

The issues of family violence have been dealt with extensively above and are significant in this matter.
Additionally, Mr N has waited on his car outside his home when X was delivered to his mother by his paternal grandmother. Mr N admitted driving in a manner that would be likely to have intimidated the paternal grandmother, including making a fast u-turn to drive up quickly behind her. I accept the paternal grandmother’s version of that event, that Mr N beeped her, drove past her slowly and shook his fist at her. She clearly found the incident frightening and intimidating.

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family

The AVO protecting W from Mr N has been varied to permit them to reside in the home together, in circumstances previously discussed. There are no other AVO’s in place.

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

This section is of limited relevance given that X is only 4 years of age, and it is difficult to predict what might happen in his mother’s household into the future. The orders provide for limited time between X, his mother and siblings due to the current difficulty of the injunction restraining Mr N being at the home. It is impractical to exclude Mr N from the home for overnight or extended periods of time.

Parental responsibility

Section 61DA of the Act requires that when making a parenting order the court must apply a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility.
The presumption is rebutted by evidence that satisfies the Court it would not be in X’s best interest for his parents to have equal shared parental responsibility.
X’s parents are unable to communicate effectively at the moment. There has been family violence in the mother’s household, although not perpetrated by the mother. The orders require the parties to engage in counselling to improve their relationship but that has not yet commenced. Given the current suspicion between the parties, decisions would not be able to be made by his parents acting together.
As was canvassed in the oral evidence of the report writer, it is sensible for the parent with whom X is living, his father, to exercise parental responsibility for him. The father is obliged to contact the mother and obtain and consider her views prior to making any decision which involves the exercise of his parental responsibility. The mother is also specifically entitled to receive information about X’s health and education pursuant to the orders.

Conclusion

X is likely to be upset at not spending time overnight in his mother’s home. The orders made do not permit that because the mother has not satisfied the Court that she can keep X safe from exposure to family violence in her home. W’s experience has been no doubt extremely difficult and distressing for him and the Court is required to ensure X is not exposed to that risk.
The mother and Mr N were not forthcoming about problems within their home to the Court including Mr N’s consumption of ICE and its impact on his behaviour. Additionally, Mr N has had difficulty managing his behaviour around the use of alcohol and his previous relationship with Ms M. He was not frank with the Court about those matters.
The mother has demonstrated that she prioritises Mr N over her children. Since living with his father, at his paternal grandmother’s home, X has been safe. He has a close relationship with his father which provides him with love and stability. He is able to maintain his relationship with his mother and siblings.
It may be that the mother and father are able to move to a situation where the mother can keep X safe from Mr N and the father can trust that she will do so. If that circumstance can be achieved, the parties may be able to move to X spending overnight and extended time in the mother’s household. This is not something likely to be achievable in the immediate future but is a goal for the parties to work towards.

I certify that the preceding one hundred and fifty (150) paragraphs are a true copy of the reasons for judgment of Judge Boyle

Date: 30 June 2016

[2016] FCCA 1607

30 June 2016

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Injunction

Costs

Remedies

Procedural Fairness