MCALLISTER & HALLETT

[2016] FamCA 1088

FAMILY COURT OF AUSTRALIA

MCALLISTER & HALLETT [2016] FamCA 1088

FAMILY LAW – CHILDREN – Parental responsibility – Where the parties are incapable of co-operation – Where the child is due to begin school soon – Where the father disagreed with the mother’s selection of school – Where the father’s psychological condition impairs his parenting capacity and is not presently well managed – Where the mother has a superior parenting capacity and does not pose any risk of harm to the child – Decided presumption of equal shared parental responsibility does not apply – Ordered the mother have sole parental responsibility

FAMILY LAW – CHILDREN – With whom the child should live – Where the father perpetrated family violence – Where independent records establish a pattern of his violence – Where the child requires protection from risks of harm attributable to the father’s violent conduct – Ordered the child live with the mother

FAMILY LAW – CHILDREN – Interaction with the father – Where the family consultant recommends the child’s relationship with the father should be severed – Where supervision is the only alternate solution to the risk of harm posed by the father – Concluded it is undesirable to impose indefinite supervision and it is in the best interests of both the child and the mother to conclude the litigation – Where the mother can decide if, when, and how the child should spend time with the father as an incident of her sole parental responsibility – No order directing the child’s interaction with the father

Family Law Act 1975 (Cth) ss 4, 60AA, 60CA, 60CC, 61B, 61CA, 62B, 65AA, 65D, 65DA, 68B

Allesch v Maunz (2000) 203 CLR 172
Champness & Hansen (2009) FLC 93-407
H & K [2001] FamCA 687
Marriage of Bieganski (1993) 16 Fam LR 353
Moose v Moose (2008) FLC 93-375
Slater & Light (2013) 48 Fam LR 573
Taylor v Taylor (1979) 143 CLR
W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

APPLICANT: Mr McAllister

RESPONDENT: Ms Hallett

INDEPENDENT CHILDREN’S LAWYER: Ms Adams, Adams & Associates

FILE NUMBER: NCC 1036 of 2015

DATE DELIVERED: 12 December 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 12 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Mr Allen

SOLICITOR FOR THE RESPONDENT: Winder Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Carty

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Adams, Adams & Associates

Orders

1. All former orders relating to the child B, born … 2012, (“the child”) are discharged.

2. The mother shall have sole parental responsibility for the child.

3. The child shall live with the mother.

4. Pursuant to s 68B of the Family Law Act, the father is restrained from entering upon or approaching within 100 metres of:

   (a)The mother’s residence; and

   (b)Any school or pre-school attended by the child.

5. Each party shall take all reasonable steps to ensure that the child is able to communicate with the father in the following manner:

   (a)By the father being able to send letters, cards, and/or gifts to the child on or about dates proximate to her birthday, Father’s Day and Christmas Day; and

   (b)By the mother promptly sending to the father:

   (i)Written acknowledgement of receipt of the father’s written communication, and

   (ii)Any letters, cards, photographs, or other written communication that the child wishes to be conveyed to the father.

6. For the purposes of implementation of Order 5 hereof, the parties shall forthwith notify each other in writing, and keep one another notified in writing, of the postal addresses to which such written communication may be sent between them.

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

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

9. Any and all outstanding applications are dismissed.

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

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

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1036 of 2015

Mr McAllister

Applicant

And

Ms Hallett

Respondent

And

Independent Children’s Lawyer

ex tempore

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the child of the applicant father and respondent mother. She was only eight months old when the parties separated but is now four years of age.

2. The father commenced the proceedings in April 2015 and, from start to finish, the parties contested all important issues about the child’s life: who would have parental responsibility for her, with whom she would live, and the nature of the interaction she should have with the non-residential parent.

3. The father failed to appear at trial and so the proceedings were determined in his absence.

Background

1. The parties commenced their relationship in about January 2011 when they were both quite young. The father was then 20 years of age, but the mother was barely 16 years of age.

2. The child was born in 2012.

3. The parties ended their relationship in about January 2013. The child remained in the mother’s care and the father occasionally spent time with her under the supervision of the paternal great-grandmother,[1] which the mother deposed occurred quite infrequently.[2]

   [1] Family Report, para 21

   [2] Mother’s affidavit, para 10

4. The father moved inter-state in about May 2013 to pursue another relationship and did not see the child for about four months until he returned to the Newcastle environs. Upon his return, he resumed visits with the child until about January 2014, when the mother gave birth to her second child.[3] The father then again had no interaction with the child for another few months until she attained two years of age in 2014,[4] when the father suggested she should begin spending overnight time with him, but the mother refused because of the child’s relative unfamiliarity with him. The mother instead suggested the father visit the child at her home, with which suggestion he was dissatisfied.

   [3] Family Report, para 22

   [4] Family Report, para 26

5. The parties attended mediation in March 2015, at which time they agreed the child should live with the mother and spend time with the father on weekends.[5] The evidence is unclear whether the child’s visits to the father were intended to occur every weekend, only on alternate weekends, or even less frequently. Regardless, on only the child’s second visit thereafter, the father detained her. The father sent the mother a text message stating:[6]

   You better have money for a recovery order because I’m not bringing her back.

   [5] Mother’s affidavit, paras 20-21

   [6] Mother’s affidavit, paras 22-27

6. The mother applied for a grant of legal aid to institute proceedings,[7] but the father filed his Initiating Application before she could do so in April 2015. The mother filed her Response in May 2015 and the proceedings were listed before the Federal Circuit Court in June 2015, on which occasion the proceedings were transferred to this Court for determination.

   [7] Mother’s affidavit, para 34

7. In July 2015, the parties agreed upon interim orders that enabled the child to spend supervised time with the mother for two hours each week, which orders were only intended to apply until the parties’ respective interim applications could be heard and determined.

8. The parties conferred with the Family Consultant in August 2015, prior to the hearing of their competing interim applications in the duty list in September 2015. On that occasion, orders were made for the child to live with the mother and to spend time with the father for one night each week and for one night each alternate weekend. Despite the pronouncement of such interim orders, the father refused to return the child to the mother until after she filed another application seeking recovery orders two days later. In the knowledge of such further application, the father belatedly returned the child to the mother at a police station.[8] The orders made in September 2015 operated until final trial in December 2016.

   [8] Family Report, paras 59-61; Mother’s affidavit, paras 53-82

9. In August 2016, the father’s lawyer asked for and was granted leave to withdraw his representation of the father, since he could no longer secure the father’s instructions and was unable to explain the father’s non-appearance before the Court. The proceedings were therefore listed for trial in October 2016 on an undefended basis.[9] However, on the appointed date for trial, the father appeared at Court and announced his desire to participate meaningfully in the proceedings so another trial date was fixed and fresh procedural orders were made to ensure the proceedings’ readiness for a contested trial.[10]

   [9] Orders and notations made on 24 August 2016

   [10] Orders and notations made on 14 October 2016

10. Regrettably, the father did not comply with those procedural orders. He failed to file the affidavits he proposed and was permitted to file and he again failed to appear at the trial, which therefore proceeded in his absence in December 2016. The Court was not required to indefinitely delay finalisation of the proceedings merely because the father declined to appear, particularly when he was already reprieved once before (see Allesch v Maunz (2000) 203 CLR 172 at 182-186, 189-191; Taylor v Taylor (1979) 143 CLR 1 at 4).

Proposals and evidence

1. The Amended Initiating Application filed by the father on 27 November 2015 was the last application he filed and so his last formal proposal was for the parties to have equal shared parental responsibility for the child and for her to live with the parties for equal time on weekly rotations. His application will be dismissed because he declined to appear at trial and prosecute it. Similarly, the past affidavits he filed in the proceedings were ignored because he made himself unavailable for cross-examination.

2. The mother sought the orders set out within her Amended Response filed on 19 October 2016, subject to some minor variations made during final submissions. She wanted the child to live with her and have no interaction with the father, though she resiled from any proposal for an injunction to that effect. She was content, as the Independent Children’s Lawyer proposed, for there to be no order prescribing the child’s interaction with the father. Decisions of that sort will be left to her because, although she proposed no specific order about the allocation of the child’s parental responsibility, her counsel confirmed at trial that she sought sole parental responsibility for the child.

3. In support of her proposal, the mother relied upon:

   (a)Her affidavit filed on 16 November 2016;

   (b)The affidavit of Ms C, filed on 16 November 2016; and

   (c)The Family Report dated 28 July 2016.

4. The Independent Children’s Lawyer agreed with the orders ultimately proposed by the mother.

5. The mother, Ms C, and the Family Consultant were not required for cross-examination, so I accept their evidence to be truthful and accurate.

The child’s best interests

1. When making parenting orders, the Family Law Act 1975 (Cth) (“the Act”) requires the Court to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA).

2. For that purpose, the Act specifies the hierarchical criteria which must be considered in deciding what is in the child’s best interests (s 60CC), so I shall evaluate the evidence addressed to those criteria.

Section 60CC(2)(a)

1. There could be no real debate about the importance of the child’s relationship with the mother, since she has been the child’s primary carer since birth, save for the period of months between April and September 2015 when the father detained her. The father’s last proposal was for the child to live with the mother for equal time so, inferentially at least, he accepts the importance of the child’s relationship with the mother.

2. Despite the mother’s relative youth and her responsibility for the care of two young children, she engaged with the parental education services she was offered by welfare authorities and the caseworkers considered the child has a “good attachment” with her.[11]

   [11] Family Report, para 23

3. Conversely, the child’s derivation of benefit from her relationship with the father was a contentious issue. In July 2016, the Family Consultant found the child was resistant to interaction with the father. She kicked and struggled but, when eventually confronted with him, she clung to the maternal grandmother and refused to engage with the father, ignoring the maternal grandmother’s encouragement to do so. The child’s refusal was so insistent the Family Consultant elected to terminate the observation session. The Family Consultant considered the child’s behaviour, anxiety, and hypervigilance may qualify her for diagnosis of Post-Traumatic Stress Disorder.[12]

   [12] Family Report, paras 118-120

4. The Family Consultant hypothesised about the cause of such condition and, without reaching a concluded view, considered the child’s enforced separation from the mother at an important stage of her emotional development was a rational explanation. She considered the child’s subjection or exposure to family violence, abuse, and parental drug use could also be plausible explanations.[13]

   [13] Family Report, paras 122-123

5. For reasons yet to be addressed, the child’s subjection or exposure to family violence, abuse, and parental drug use are much less likely to convincingly explain the child’s psychological insecurity. The father’s ill-advised decision to withhold the child from the mother for about five months, when she was barely three years of age and still barely acquainted with the father, is the more likely explanation.

6. Despite the child’s resistance to the father under the observation of the Family Consultant, the mother has since endeavoured to ensure the child’s continuing interaction with the father in compliance with the interim orders.

Section 60CC(2)(b)

1. The evidence demonstrated a relatively clear case for the child’s need for protection against harm she might be caused by exposure to the father’s violent conduct. The father’s violence has been directed towards the mother, other domestic partners, family members, and complete strangers.

2. His violent conduct towards the mother was “family violence”, as defined in the Act (s 4). It was common ground the parties’ relationship was permeated by violence, with police sometimes summoned to intervene.[14] The mother told the Family Consultant about the father’s coercive controlling behaviour towards her, not only when he was intoxicated.[15] She also gave evidence of its frequent occurrence since they separated, usually being aggressive, abusive, and threatening behaviour when exchanging the child between them.[16] Her evidence in that respect was corroborated by Ms C.[17] Although the father denied such behaviour to the Family Consultant,[18] he gave no evidence to that effect and did not challenge either the mother’s or Ms C’s evidence of its occurrence. In circumstances where the mother’s evidence was corroborated and unchallenged, I accept her version of past events.

   [14] Family Report, para 4

   [15] Family Report, para 4

   [16] Mother’s affidavit, paras 36-44, 84-94

   [17] Affidavit of Ms C

   [18] Family Report, para 4

3. The Family Consultant confirmed how documents produced on subpoena, which she inspected, showed there was an established pattern of violence in the father’s relationships with his family members and intimate partners.[19] He was an anxious and unhappy child who was often suspended from school as a result of aggressive and oppositional behaviour towards peers and school staff.[20] As an adult, he assaulted strangers and maliciously damaged property.[21]

   [19] Family Report, para 5

   [20] Family Report, para 6

   [21] Family Report, paras 10, 13

4. The evidence established the child is in need of protection against the harm she would suffer through her exposure to family violence or other violent conduct committed by the father. Violence has been a characteristic part of the father’s behaviour for most of his life. There was no indication in the evidence of its attenuation. The risk to the child is high and could only be satisfactorily contained by supervision of the child’s visits with the father.

5. The father asserted during these proceedings that the child was sexually abused by the biological father of the mother’s second child,[22] but his many reports of the alleged abuse have not instigated any serious investigation. The police, child welfare authorities, and independent doctors have not accepted the father’s allegations to be true, even though he may genuinely believe the abuse occurred.[23] The evidence does not objectively support any such belief.

   [22] Family Report, para 81

   [23] Family Report, paras 43-48, 50-55

6. The father’s past allegations of the mother’s serious neglect of the child also found no favour with the authorities to whom the allegations were reported.[24] The father must have abandoned his concern about the child’s neglect, for otherwise he would not have sensibly proposed to the Court it was in the child’s best interests for her to live with the mother for equal time.[25]

   [24] Family Report, paras 30-37, 41-42

   [25] Family Report, para 105

7. There was no evidentiary basis to conclude the child is in need of protection from harm that could be caused by her subjection to abuse or neglect while in the mother’s care.

8. However, there is some residual concern about the chance of the child being exposed to family violence while in the mother’s care, since it occurred once before in March 2015 when the child witnessed the mother and the biological father of her sibling exchanging blows during an altercation. Neighbours summoned police to subdue the incident.[26] If it happened once, it could happen again, but little if anything could be done by the Court to prevent it. In isolation, that incident does not disqualify the mother from consideration as the child’s residential parent. The only residential options for the child are the two parties, both of whom acknowledge their limitations.

   [26] Family Report, para 28

Section 60CC(3)

1. Overall, the mother’s parenting capacity is at an acceptable standard, though she has encountered difficulties maintaining the standard consistently. Her early life involved considerable hardship, which unsurprisingly led to her experimentation with illicit drugs. When police were called to the altercation involving the mother in March 2015, it was reported she had been using drugs, but she told the Family Consultant she was now abstinent and no evidence was adduced to contradict her.[27]

   [27] Family Report, paras 19, 28

2. Other evidence independently implied the mother’s parenting capacity is satisfactory. Medical records show the child is fully immunised and receives regular medical care.[28] The child’s general medical practitioner confirmed the child has been under his care for nearly three years and he is satisfied with her presentation.[29] The Family Consultant also found the child’s language skills, fine motor skills, and gross motor skills to fall within expected parameters.[30] Although the father has previously complained about the mother’s neglect of the child, he described her to the Family Consultant as a “good mother”,[31] and his proposal for the child to live with the mother for equal time attests to his belief in her competence.[32]

   [28] Family Report, para 25

   [29] Family Report, para 38

   [30] Family Report, para 118

   [31] Family Report, paras 70, 104

   [32] Family Report, para 105

1. Unfortunately for the child, the father’s parenting capacity is significantly inferior to the mother’s capacity. The Family Consultant shared the mother’s expressed concerns about his impulsivity, poor decisions, lack of insight, inability to comprehend the needs of young children, commission of family violence, and illicit drug use.[33]

   [33] Family Report, paras 71, 109

2. The father’s past problems have been pronounced and long-standing. His history of excessive alcohol use and illicit drug use extends back to his adolescence[34] and his intoxication was linked with criminal conduct on many occasions. In May 2010 he attacked a complete stranger and, when arrested by police, was too inebriated to be interviewed. His behaviour while remanded in custody included head-butting the cell walls and destroying the cell mattress.[35] In November 2010 he broke into a school and maliciously destroyed property when reported to be “off his face on alcohol”. On that occasion he tried to hang himself when detained in custody.[36] In April 2016, police forced entry to the father’s home to arrest him over another offence and found him intoxicated.[37]

   [34] Family Report, page 4

   [35] Family Report, para 10

   [36] Family Report, para 13

   [37] Family Report, page 4, paras 65, 111-112

3. During discussion with the Family Consultant in July 2016, the father admitted to current use of illicit drugs and alcohol, including episodes of binge drinking, though he maintained his alcohol consumption had abated.[38] In the absence of some corroboration, one could have little faith in the father’s assertion of abatement of the problem.

   [38] Family Report, page 4, paras 83, 110

4. The father’s problems are much more complicated than merely misuse of alcohol and drugs. In the past, he experienced learning difficulties and testing revealed his “extremely low” intelligence quotient.[39] Like the mother, his home life was unhappy. During his teenage years he was either homeless or lived in a refuge. He presented with “mental health issues”, exemplified by him cutting himself to relieve stress and his early use of cannabis and alcohol.[40]

   [39] Family Report, para 6

   [40] Family Report, para 7

5. The father’s first admission to a mental health facility occurred in 2007 when he was aged about 17 years. He was admitted again in 2009. On both occasions he threatened suicide and he ceased taking the anti-psychotic medication he was prescribed. He was observed to present with “Cluster B Personality Traits (Borderline, Antisocial, Narcissistic and Histrionic)”.[41] The Family Consultant considered his mental health history was “well documented” and concluded he had “significant deficits” in intellectual functions like reasoning, problem solving, planning, abstract thinking, judgment, and learning from experience.[42] She opined such deficits resulted in his failure to “meet developmental and socio-cultural standards for personal independence and social responsibility” which “severely impede” his parenting capacity.[43]

   [41] Family Report, paras 8-9

   [42] Family Report, paras 76-77

   [43] Family Report, paras 78-79

6. Unfortunately for the father, he is not presently receiving any form of treatment for his psychological condition.[44] He takes no medication and does not receive any form of therapy, in which case his parenting capacity is unlikely to improve in the foreseeable future. I accept as correct the Family Consultant’s opinion that the father has little insight about the child’s needs and the manner in which his behaviour affects her.[45] According to the evidence, that is unlikely to change.

   [44] Family Report, para 82

   [45] Family Report, para 109

7. The father has not fulfilled his parental duty to help maintain the child. He does not pay any child support, even though he openly admits his employment.[46] The mother agreed to vary the child’s visits with him to accommodate his work commitments.[47]

   [46] Family Report, paras 1, 97, 107, 135

   [47] Mother’s affidavit, para 103

8. The father is of Aboriginal descent but, according to the evidence, has little involvement with the Aboriginal community.[48] Nevertheless, the child identifies as Aboriginal at both her pre-school and with her medical providers and there is no reason to doubt the mother’s commitment to her maintenance of that cultural identification.[49]

Conclusions and orders

[48] Family Report, para 74

[49] Family Report, para 75

Parental responsibility

1. 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).

2. 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 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)).

3. In this instance, the presumption of equal shared parental responsibility should not apply. Regardless of the evidence about the father’s commission of family violence, the evidence clearly demonstrates it would not be in the child’s best interests for the parties to have equal shared parental responsibility for her (s 61DA(4)). The mother said, and I accept, the father dictates terms to her and she often submits to his demands in order to simply “keep the peace”. She said he “just talks over the top of [her] or gets nasty” and his attitude was “his way or the highway”.[50] If that is typical of the negotiating dynamic between them, the parties are really quite incapable of the co-operation needed when making joint decisions about “major long-term issues” concerning the child (s 65DAC).

   [50] Family Report, paras 87, 88, 89, 90

4. The child is due to begin school in the 2017 academic year, but the father told the mother he disagreed with her selection of school,[51] so her enrolment is an issue of significance that needs immediate resolution.

   [51] Family Report, para 89

5. The mother wants exclusive parental responsibility for the child and, following his discussion with the Family Consultant about the concept of parental responsibility, it seems the father would also prefer to have exclusive parental responsibility for the child.[52] I agree with the Family Consultant’s conclusion that parental responsibility for the child should vest in the party with whom she will live.[53]

   [52] Family Report, para 106

   [53] Family Report, para 72, Recommendation I

Residence

1. The child should live with the mother. Her primary attachment figure is the mother, her primary carer has historically been the mother, there was no convincing evidence the mother poses any risk of harm to the child, and the mother’s parenting capacity is superior to the father’s capacity. That conclusion coincides with the Family Consultant’s recommendation.[54]

   [54] Family Report, para 124, Recommendation I

Interaction with the father

1. The critical issue is the nature of the child’s future interaction with the father. The mother initially proposed that the child spend no time with the father and that he be restrained from approaching the child at home or school.[55] She is particularly concerned about the father’s ability to physically care for the child[56] and, perhaps more importantly, her physical safety while in his care. She has been worried in the past about his sobriety at changeovers and recently, when she delivered the child to the father at his home, it reeked of cannabis.[57] The child is obviously at risk of harm if he is stupefied by cannabis or alcohol while caring for her. The father lives alone and has no help from the paternal family.[58]

   [55] Amended Response filed 19/10/16, Orders 2-3

   [56] Family Report, para 92

   [57] Mother’s affidavit, paras 110-121

   [58] Family Report, para 93

2. The Family Consultant considered several options for maintenance of the child’s relationship with the father, but she ultimately recommended their interaction should be severed if the father was unprepared to make “significant changes” to his life.[59]

   [59] Family Report, paras 127-129, Recommendations III and IV

3. Earlier in these reasons, supervision of the child while in the father’s care was posited as the only means by which the risk of her harm could be contained. The imposition of supervision, however, is not a simple solution. The child is still only four years of age. Supervision of their interaction for the remainder of her minority would import oppressive restrictions as the child grows and matures, inevitably placing immense strain upon their relationship. In all probability, it would eventually disintegrate.

4. It is generally regarded as undesirable to impose indefinite supervision of interaction between a child and parent and preferable for supervision orders to contain a mechanism for review (see Slater & Light (2013) 48 Fam LR 573 at 583-584, 591; Champness & Hansen (2009) FLC 93-407 at [209]-[215], [219]-[225]; Moose v Moose (2008) FLC 93-375 at [119]; W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 at [164]; H & K [2001] FamCA 687 at [40]-[41]; Marriage of Bieganski (1993) 16 Fam LR 353 at 368). However, making orders that either demand or invite review necessarily entails making orders of finite duration, which keeps the litigation alive. That may be a satisfactory solution in cases where the evidence induces confidence there will be a material change in circumstances within the short to medium term, but it will rarely if ever be a long-term solution. In this instance, the available evidence suggests the father’s attitudes are immutable and any optimism about his reformation is crushed.

5. The interests of both the child and mother would be advanced by concluding the litigation, so the orders should finally end the dispute and not merely be an interim remedy. In such circumstances, the only available options are to impose permanent supervision upon the child’s interaction with the father or to sever their personal interaction altogether.

6. Permanent supervision would need to be provided by a professional supervisor, because no other suitable candidate was revealed by the evidence, but that solution presents several difficulties.

7. First, the father may not even submit to such orders. He certainly did not envisage attending a contact centre to maintain contact with the child for the rest of her childhood so, confronted by orders to that effect, he may abandon interest in her and cease compliance with the orders.

8. Second, the use of a contact centre would be costly. The mother cannot afford it and, although the father works, he has not paid any child support to the mother. If he is unable or unwilling to support the child, it is unlikely he will be able or willing to pay for the privilege of seeing her.

9. Third, the parties live a considerable distance apart. The mother lives outside the suburban fringe of Newcastle and the father recently moved to live in public housing in inner Newcastle.[60] The mother informed the Court through her counsel that she believes the father may now be living in Sydney, but the orders will be determined on the basis of the evidence adduced. The road journey between their homes would likely be about 30 minutes. The father has no car and, currently, the mother has no driver’s licence, so they both rely upon public transport when others are unable to assist them.[61] The train route is reasonably close to both parties’ homes but, since no contact centres are situated close to the train route, the journeys between their homes and the contact centre would most probably involve travel by both train and taxi. The implementation of orders for supervised visits between the child and father would therefore involve some practical difficulty.

   [60] Mother’s affidavit, paras 95, 96, 107

   [61] Family Report, paras 88, 103

10. Fourth, the policy of many contact centres is to refuse implementation of orders requiring permanent supervision. Many are only prepared to provide their services on a temporary basis. There was no evidence of a reasonably local professional contact service that would provide indefinite supervision.

11. Any arrangement for permanent supervision would probably fail because of those difficulties. The best course is to make no orders providing for the child’s personal interaction with the father. The mother can decide as an incident of her exclusive parental responsibility whether the child should see the father and, if so, the circumstances under which that may occur. In order to thwart any frustration of orders to that effect, the father will be restrained from attending at or near to the mother’s home and the child’s school.

12. While such orders finally end the litigation, they are never incapable of review. Parenting orders may always be varied (s 65D(2)), provided the applicant is able to demonstrate a sufficient change in circumstances since the orders were last made to warrant their review and variation (Rice v Asplund (1979) FLC 90-725). If, despite the pessimism caste by the evidence over the prospects of the father’s reformation, he is able to overcome the problems in his life then he may apply for fresh orders enabling the revival of his personal interaction with the child. The onus will rest with him.

13. In order that the child’s filial relationship with the father is not lost entirely, an order is made permitting him to maintain occasional written correspondence with her. Neither the mother nor Independent Children’s Lawyer wanted to be heard against such an order being made. Although the evidence does not permit any finding the child currently derives much benefit from her relationship with the father, the relationship is nonetheless an important one in her life and there is no justification to annihilate it altogether. There is benefit to the child in simply knowing she has a father who is interested in her welfare.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 12 December 2016.

Associate: 

Date:  19 December 2016