Merritt and Holdsworth

FAMILY COURT OF AUSTRALIA

MERRITT & HOLDSWORTH

[2016] FamCA 150

FAMILY LAW – CHILDREN – contact application by father – parties live nine hours apart – mother alleges sexual abuse – court accepts no evidence supports unacceptable risk – mother alleges risk because of father’s alcohol use – court accepts the problem is a risk situation that warrants grandmother’s attendance for a year.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Briginshaw and Briginshaw [1938] HCA 34; (1938) 60 CLR 336
M and M [1998] HCA 68; (1998) 166 CLR 69

APPLICANT:

Mr Merritt

RESPONDENT:

Ms Holdsworth

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

1399

2015

DATE DELIVERED:

11 March 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

3, 4 & 7 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Williams

SOLICITOR FOR THE APPLICANT:

Davies Watson Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Maramis

SOLICITOR FOR THE RESPONDENT:

Maloney Anderson Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

That all extant parenting orders are discharged.
That the mother have sole parental responsibility for major long term issues of education and health relating to B (the child) born ... 2011 provided always that she provide to the father:
(a)information by email of any matters that would normally require consideration by both parents as to a decision to be made; and
(b)except in an emergency, 28 days notice of any decision she proposes,
and that thereafter, the father advise the mother within 14 days his response and in the event of a disagreement, the mother make the decision and advise the father accordingly.
That save as otherwise set out in these orders, the mother and the father have equal shared parental responsibility for the child.
That the child live with the mother.
That the child spend time with the father on the first weekend of each month:
(a)Commencing on 1 April 2016, from 5.00pm on Friday to 6.00pm on Sunday; and
(b)Commencing on 1 December 2016, from 5.00pm on Friday until 8.30am on the following Monday.
That for the purposes of paragraph (5)(a) and (b), and paragraph (7)(a) and (b) but only until 1 April 2017, all such time is conditional upon the substantial attendance of the paternal grandmother Ms C Merritt or such other person as the mother and the paternal grandmother agree.
That the child further spend time with the father in future as follows:
(a)From 3.00pm on Christmas Day 2016 until 5.00pm on 28 December 2016;
(b)For three nights commencing at 5.00pm on 15 January 2017 (or such other commencing date as the parents may agree in writing) and concluding at 5.00pm after the third night;
(c)For four nights in the school term holidays at the end of term 1 in 2017 from 10.00am on the first Saturday of the holidays until 10.00am on the following Wednesday morning;
(d)For five nights in each school term holidays after the end of term 2 in 2017 from 10.00am on the first Saturday of the holidays until 10.00am on the following Thursday morning;
(e)From 3.00pm on Christmas Eve 2017 until 3.00pm on Christmas Day and for a similar period in each alternate year thereafter;
(f)For six nights commencing at 5.00pm on 15 January 2018 (or at 10.00am that day if the parties agree in writing), concluding at 5.00pm on 21 January 2018;
(g)From 3.00pm on Christmas Day 2018 until 5.00pm on 31 December 2018 and for a similar period in each alternate year thereafter;
(h)During school term holidays in 2018 commencing with the holidays at the end of term 1, for six nights commencing at 10.00am on the first Saturday of the holidays and concluding at 10.00am six days later; and
(i)For half of all summer school holidays after December 2018 by agreement in writing and failing agreement, on a week-about basis with the father to have the first week in each even numbered year and the second week in each odd numbered year.
For the purposes of all hand-overs pursuant to these orders, unless the parties otherwise agree in writing, the child shall be delivered by the mother to the father at the Woolworths supermarket in D Town and the father shall return the child to the mother at the same point.
That for the sake of clarity, all monthly weekend contact periods are suspended during any month in which school holidays occur commencing with the 2017 school year.
That the father communicate with the child once per week by telephone at times to be agreed by the parties in writing and in default of agreement, at 4.30pm on each Sunday.
That each parent provide to the other their current email address and telephone number.
That the parents each keep each other informed of any health or welfare issues affecting the child whilst he is in their respective care.
That in respect of health issues, the mother provide to the father:
(a)The names and contact details of any general medical practitioner or specialist upon whom the child attends; and
(b)An authorisation addressed to the relevant health professional that the father can communicate with any such health professional.
That the mother provide to the father:
(a)Particulars of any kindergarten or school that the child attends; and
(b)An authorization addressed to the kindergarten or school enabling the father to communicate with that kindergarten or school including attending there for such activities as a parent would normally be involved in SAVE THAT these orders do not bind any kindergarten director or school principal in relation to directions as to the father’s attendance and/or participation in such activities.
That the father be restrained by injunction from consuming alcohol during any period that the child is in his care and for any period of 48 hours prior to the commencement of that care.
That the father forthwith engage a drug and alcohol counsellor and:
(a)Provide details to the Independent Children’s Lawyer and to the solicitors for the mother of the name, address and professional qualifications of that counsellor;
(b)Provide a written authorisation (and a copy to the mother) to the said counsellor to contact the mother in the event that the father fails to continue treatment and/or fails to comply with reasonable directions of the counsellor; and
(c)Authorise the counsellor to provide to the mother confirmation of the father’s progress and compliance with any treatment or directions at the point at which the requirement for the substantial attendance of the grandmother ceases under these orders.
That a copy of these orders (and the reasons supporting them) may be provided to any health service provider of the mother, the father or the child and any school principal or kindergarten director of an establishment at which the child attends.
That the appointment of the Independent Children’s Lawyer is discharged on 1 April 2016.
That all extant applications between the parties are otherwise dismissed (save as to any issues of costs).
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1399 of 2015

Mr Merritt

Applicant

And

Ms Holdsworth

Respondent

REASONS FOR JUDGMENT

Mr Merritt (“the father”) and Ms Holdsworth (“the mother”) commenced a de facto relationship in June 2009 and the child was born in 2011. The issue for determination arising out of their relationship is what time the father should spend with the child in the future. The future primary caring role of the mother was not in dispute.
The mother alleges that the father creates an unacceptable risk of harm to the child if any time between them is not restricted by the presence of an acceptable adult for two reasons:
(a)she asserts, and believes, that the father has sexually abused the child by inappropriate behaviour manifested by an incident in 2011 and, further believes that as a result of the behaviour of the child in January 2014, inappropriate sexual behaviour on the part of the father took place; and, in addition,
(b)she asserts that the father has a problem with alcohol to such an extent that, absent adult supervision of some kind, the child would be at risk of physical harm in the father’s care.
In perhaps an unusual twist, the mother’s belief is not that any sexual abuse would occur for self-gratification purposes but rather, that the conduct is the father’s inappropriate teaching of his son in regard to sexual activity. If accepted, that would still be abuse. The tyranny of distance adds to the complexity in this case. The father lives in Canberra and the mother in far northwest Victoria.
The mother’s proposal is that the child have two consecutive nights with his father per calendar month with the paternal grandmother in substantial attendance. Her view is that this monitoring or supervision should continue until the child attains the age of 10 years. In addition to questions of when the time should be extended beyond two nights, the mother’s proposal was that there should not be any significant change for one year. She also sought orders relating to her entitlement to have access to information about the father’s counselling and she wanted drug screening.
The father’s proposal was that for a period of three months, his time should be under the monitoring of his mother or father but that thereafter, time should be extended methodically leading up to block periods.
The Court had the assistance of an Independent Children’s Lawyer. Her positon was similar to that of the father but with the rider that the paternal grandmother or grandfather be a constant presence for a year. Various other orders were proposed by the Independent Children’s Lawyer about access to the father’s alcohol counselling and the father did not disagree.
After a testing of the evidence, and contemplating it to determine what has happened to this family as well as what is in the best interests of the child, on the balance of probabilities, two findings can be made. They are:
(a)the father did not act with any sexual impropriety relating to the child and there is no such risk to the child; and
(b)the father has an unresolved alcohol use problem which leads to the inescapable conclusion that not only should orders be made that he not drink alcohol immediately before and during his time with the child but at least, for the ensuing year, the presence of the paternal grandmother during father and child contact is warranted.
The reasons for those determinations follow.
In addition, it is also the Court’s responsibility to determine the time to be had by the father with the child having regard to the absence of any agreement as set out above.

Background

The father is a self-employed 33 year old man who works as a carpenter although he is not so qualified. He has lived in places such as E Town and Canberra. In the latter, he lives with his parents.
The mother is currently engaged in caring for the child. She is 35 years of age. She has tertiary qualifications in science. She resides in the far northwest of Victoria.
The parties met in E Town in 2009 where the mother’s father then lived. The mother moved there after her previous relationship ended. Her relationship with the father was tumultuous. It is necessary for the purposes of s 61DA of the Family Law Act 1975 (Cth) (“the Act”) to traverse some of those facts and I do so below.
Into this tumultuous relationship, the child was born in 2011. There is a suggestion, although the evidence does not enable any finding to be made, there may be some hearing difficulties. The child has grommets in his ears for that purpose.
The mother and father separated in September 2011 and the mother took the child to reside with her own father. This was after an incident which I accept formed the foundation for the mother’s concern about the sexual abuse issue. Despite that incident and her fear, reconciliation occurred and the parties remained together until August 2012. At that point, the mother and the child moved to northwest Victoria where she has since remained.
In the period from August 2012 until now, the father has visited the child in the December/January period 2012-2013; and the mother visited the father in April 2013; the father visited the child in the July 2013 period where he drove to Victoria from E Town with the mother’s car and her belongings; and the father went to Victoria over the January 2014 period for ten consecutive days. There was then a long gap (imposed by the mother) until court orders established the current monthly visitation arrangements.
For the purposes of the sexual abuse issue, the Court’s focus is on the September 2011 period when the parties were living together and the January 2014 period when the father went to visit the child in Victoria with his family.
For the purposes of the alcohol issue, it seems the father’s entire history is relevant and will take up much of the time of these reasons.
It is also necessary for me to make some comments and findings about family violence in this case. Whilst both parties, at times, accused each other of violence (both physical and psychological) it is apparent on the unchallenged evidence of the mother that in E Town, the father was removed from the family’s home by police and on one occasion, was restrained from returning there for 72 hours under a violence order. Further, in the Magistrates’ Court in March 2014, an intervention order was made against the father for two years. That order was made by consent of the father but without any admission as to the facts as alleged by the mother. This occurred just after the January 2014 contact period where the mother’s suspicions of the father’s behaviour were heightened. As the evidence showed, no allegations of sexual impropriety appear to have been made to any persons in authority. If they were, the evidence did not disclose them.

The parties

The mother is an intelligent woman and the child is her only child. She appeared nervous and tearful. The father’s counsel in final address acknowledged that by describing her as a nervous and apprehensive person. He acknowledged she was not able to come up with a way that would readily enable the parties to “move forward”. I agree with that perception.
The father is not a sophisticated man. He acknowledged heavy alcohol use including at times to drunkenness. He has used drugs. In respect of marijuana, he described its use as being to assist his anxiety. In 2013 when the mother went to E Town to collect her possessions after the relationship had ended, she visited the father’s residence on two consecutive days. During that time, a “bong” and bowl of marijuana sat on the father’s kitchen table. He told the Court that it belonged not to him but to a friend who had left it there. But importantly, regardless of who owned it, it had been left there by the father well-knowing that the mother was visiting with the child. That reflects poorly on his parenting capacity and responsibility as the toddler was wandering the residence.
Whilst the evidence supports the conclusion that prior to the birth of the child, both mother and father were involved in alcohol and drug usage, there is no doubt that the mother has refrained since taking on the responsibilities of motherhood.
Each of the primary issues of sexual abuse and alcohol abuse was the constant concern of the mother as expressed by her counsel. Despite that concern, little investigation appears to have been undertaken by her. No evidence was called by the mother from any expert about whether the post-January 2014 contact behaviour exhibited by the child could give rise to a concern that he had been inappropriately handled by the father. The mother agreed that she had not seen the father doing anything improper in 2014 but her experience (both sexually and physically) with him heightened her anxiety. Her affidavit evidence made little mention of what really concerned her and that only emerged in cross-examination as the underlying reason for her belief that the child was at risk. She was able to attend doctors during that post-January 2014 period and she was at pains to point out in her affidavit that they had dismissed her fears of any sexual abuse. She did not lead any evidence from the doctors to the contrary.
No interrogation took place of the father and no inquiries appear to have been made by the mother, about his alcohol consumption prior to trial.
In respect of both of the primary issues therefore, the Court has to do the best it can with the limited evidence it has. In final address, counsel for the mother submitted that her client’s concerns should give rise to caution by the Court but little was said that could enable the Court to provide any solution other than long-term monitoring of the father’s contact.

The sexual abuse allegations

In E Town when the child was four months old, the father and the paternal grandfather went to an hotel and consumed alcohol watching a football match. The mother attended at the hotel to collect the father at the conclusion of the football match and on the evidence, I find that he was drunk. In her evidence, she said that the father and the paternal grandfather got into the car. Both denied that was the case. It became irrelevant because it was not the issue in dispute. The mother described driving the father home and at some point, he took the steering wheel and steered the car off the road. An argument then ensued during which the child was taken out of his capsule. When that argument subsided, the parties got back into the car and as the child was crying, the father jumped over into the backseat. The mother said that at some stage, the child stopped crying but then screamed. She said she looked behind her to see what was happening (whilst still driving) and saw the father’s hand inside the child’ nappy with his fingers moving around. That version of events was strongly denied by the father. When she was cross-examined, the mother conceded that the capsule was facing the back of the car and was behind the passenger seat. Her vision must have been limited particularly as she was driving the car but she said she could see the bottom half of the child.
Subsequent to this issue, the parties continued their relationship and the father had unsupervised time with the child. The matter of what occurred that day was not raised again. The mother then spoke of the aftermath in which she was dealing with the drunken father. She spoke to her own father but made no complaint about sexual impropriety. This incident gave rise to a separation of three months. Nothing seems to have been said during the separation about sexual impropriety by the father.
In December 2011, the mother went back to live with the father. She was obtaining assistance from a counsellor. No evidence from that counsellor was called to confirm a complaint by the mother of sexual impropriety.
Over the ensuing year, various incidents occurred at the parties’ home and police intervened. During this period of time the child suffered repeated penis infections on occasions which, on the mother’s evidence, occurred when he had been left alone with the applicant. The evidence supports a conclusion that these infections were not confined to periods of the mother’s absence. The mother approached six or seven doctors but no-one expressed concern. That may be as a result of her own statement [para 45 of her affidavit]:
I was acutely aware of the gravity of the allegation and I was scared to admit to myself or anyone else that [the father] had actually sexually assaulted [the child].

Such was the concern by the medical profession that the penis infections were a problem that the child was circumcised in May 2012. In my view, the inference should be drawn that the doctors saw this as a health issue.
Notwithstanding the father was drunk on the occasion in September 2011, in isolation, I would not find that the child was at risk in the father’s care on the basis of sexual impropriety. The matter was not raised by the mother for a long time. She harboured concerns and yet continued to allow the father not only time with the child but fostered the relationship between she and the father to the point of reconciliation. The parties went to counselling about their relationship. The mother approached doctors because of penis infections which were happening regularly. No other evidence was called that might explain why the mother took the risk that she would now urge the Court not to take.
Despite all of the trauma within the relationship thereafter, no allegations of impropriety of a sexual nature relating to the child were made until the conclusion of a period of contact in January 2014. By this time, the relationship had ended.
Between 5 January 2014 and 15 January 2014, the father and his parents went to northwest Victoria and on a daily basis, the father had contact with the child. The mother facilitated that contact even to the point of taking the child back to her home to give the child a sleep. The parties socialised together including the consumption of a bottle of wine together. They swam in a motel pool and went out on social activities in circumstances where the mother drove the family around. A disputed incident occurred which brought all of that more or less to an end.
The mother’s evidence was that she attended at the hotel where the father was staying only to find that the door was locked and when she knocked, the child was naked and told her, in answer to her question, that he had not been swimming in the hotel pool. The father denied that. The father said that he had put the child in the shower because he had been in the pool and hence the child was naked. He described having taught the child to “shake his willy” as part of what he described as toilet training. Having regard to the father’s background and his lack of sophistication, it was hard to be critical of his attitude.
Although she did not specifically accuse the father of any impropriety, the mother said that her suspicions were aroused because subsequent to that day, she found the child with an erect penis and carrying out actions she described as trying to masturbate. That was the explanation that she gave in the witness box but in her evidence in chief [at 54] she said:
I noticed that [the child] was pulling at his penis repeatedly when I went to change his nappy and hitting at his genital area. I could see that these actions were painful to [the child] but he would continue to do it. [The child} had not previously been interested in touching his penis when I try to change his nappy. [The child] was pulling his skin over the tip of his penis and making his penis erect. He had never done this before. I then made the decision to believe my suspicions and cease time between [the father] and [the child].
The mother then gave a confused version of what followed. None of her concerns were raised with the father. She attended at a domestic violence unit to seek counselling and said she made an allegation that the child had been sexually abused. No evidence was called to corroborate that. She said the counsellor brought in a police officer of the SOCIT unit who took a statement. That statement was not in evidence. All parties agreed to tender [ICL1] the SOCIT report which simply confirmed the following:
[The mother] would like [the existing contact] to continue but the change in the behaviour of the child during the last period of access has caused her some concern. [The mother] is basing this on the fact that when the child was four months old [the father] has masturbated the child in order to soothe him. This incident occurred in Western Australia prior to [the mother] leaving this relationship.
It was not suggested in the mother’s evidence that the 2011 incident was done to soothe the child nor that masturbation was his purpose on the four month old child.
The SOCIT reporter went on to describe the mother’s belief but acknowledged that there were no direct witnesses to any of the incidents. The police were aware of the statement that the father had said that he had been teaching the child to “shake his willy”. The police were aware that the mother had observed the child “masturbating”. The police indicated that there had been “no disclosure” by the child but then added:
[The mother] has concerns that the child may have been sexually abused and appreciates that she may be reading too much into the current behaviour of the child with respect to the most recent access visits he has had with his father.
The father became aware of the allegations only (he said) when he read the mother’s affidavit. He had to obtain an order of the Federal Circuit Court to resume his relationship with the child. For over a year after the January 2014 contact period, the mother refused to allow the father to have any time with the child at all. The father then issued the proceedings and Judge Maguire on 5 March 2015 made an interim order resuming the father’s relationship. The proceedings came back before Judge Maguire on 9 April 2015 at which time, the mother consented to an arrangement for the father to have time with the child. Again however, that was in the presence of his parents.

The approach to the determination

Section 140 of the Evidence Act 1995 (Cth) provides that in a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. There is a caution to that statement found in subsection (2) which provides that without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject-matter of the proceeding; and
(c)the gravity of the matters alleged.
The nature of these proceedings is an inquiry into whether certain events occurred which affect the welfare of the child and whether, based on those findings, there is an unacceptable risk of harm to him. There are grave consequences both for the child as well as his parents arising from a finding that something happened which is completely inconsistent with the very nature of a parent and child relationship. A finding of sexual abuse, but also a finding of unacceptable risk, has damaging consequences for a parent but also for a child whose relationship with the affected parent must be limited and monitored. A natural and free relationship is often not thereafter possible.
In Briginshaw and Briginshaw [1938] HCA 34; (1938) 60 CLR 336 which was the forerunner of s 140 of the Evidence Act, the Justices of the High Court of Australia discussed the concept of the distinction between the criminal law standard and the lesser burden in civil cases. They agreed there was a difference because of the words used in the legislation they were contemplating. Those words were: “it shall be the duty of the court to satisfy itself, so far as it reasonably can”. The current standard of “balance of probabilities” can be seen in those words.
Latham CJ said there was no mathematical scale according to which degrees of certainty of intellectual conviction could be computed or valued but there were differences in degree of certainty which were real. The Chief Justice cautioned that:
No court should act upon mere suspicion, surmise or guesswork in any case. In a civil case, fair inference may justify a finding upon the basis of preponderance of probability. The standard of proof required by a cautious and responsible tribunal will naturally vary in accordance with the seriousness or importance of the issue.
Dixon J said:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
…
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.
Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
Rich J said:
The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion.
In M and M [1998] HCA 68; (1998) 166 CLR 69, the High Court of Australia set out the test to be applied. The court said:
19.…In proceedings under Pt VII of the Act in relation to a child, the court is enjoined to "regard the welfare of the child as the paramount consideration" (s.60D)...
In 2006, the relevant provisions of Part VII of the Act were changed such that the reference by their Honours is now contained in s 60CA.
The High Court went on to say:
20.…The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child…
As for the allegations, their Honours said:
21.Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse…
…
23.No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
Turning to the task of the Court, their Honours said:
24.In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare…
In determining what is in a child’s best interest, s 60CA referred to above directs the Court’s attention to s 60CC. The risk of harm referred to has been clearly encapsulated in s 60CC(2)(b) which requires the Court to consider:
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Finding

In my view, none of the evidence supports a conclusion that there is a risk of sexual abuse to the child in the father’s care. The incident in 2011 was the catalyst for the 2014 accusations but as earlier observed, the mother sat on those and called no evidence to indicate that during the period of time up until 2014, she sought help or made complaint about that sort of issue. The 2014 allegations arose as a result of an incident in which the mother thought the worst of the father heightened by the behaviour of the child subsequent to the contact. The mother had doubts herself at that stage and no evidence has been called to indicate that that sort of behaviour by the child was and is consistent with sexual abuse. The penis infections cloud the mystery but ultimately, no medical evidence was produced to indicate that the Court should be so concerned about such a risk.
In my view, there is not anywhere near sufficient evidence applying the tests to which I have just referred such as to make a finding that the child is at risk in the father’s care as a result of sexual impropriety.

Alcohol problems

In the space of 16 years, the father has been caught three times driving a car when he was affected by alcohol. His explanation for two of those was that it was a “mistake” or a “silly decision”. Those mistakes ignore the risk-taking and danger to others because (it would seem) on both occasions, he was not drunk to the point of inebriation. The conclusion must follow that he took a conscious risk rather than made a mistake and it certainly was not silly; it was deliberate. With a history of alcohol use and police intervention, mistakes do not happen. The father has had alcohol counselling and attended a community-run course. His ability to describe in evidence what damage was being done to him and others by his alcohol usage was limited.

The evidence of Dr F about alcohol abuse/use

Dr F is a forensic psychiatrist. He read the affidavit material of the parties that had been filed in the Federal Circuit Court in March 2015 but none of the trial affidavit material. No party suggested his opinion was consequently flawed.
Dr F was apparently engaged at the request of the father’s lawyers to undertake a psychiatric assessment. No psychiatric disorder was found. However, Dr F went on to express serious concern about the father’s alcohol consumption.
Dr F interviewed the father who told him that he consumed alcohol most days whilst working in E Town typically between 2 and 15 beers, but more on weekends where he “lost count”. Notwithstanding that, the father was able to stop drinking for four months in 2013 and saved money but then resumed the drinking pattern such that he was consuming alcohol most days of the week and up to ten beers on weekends.
Dr F said that the father recognised that his drinking pattern was unhealthy but he did not perceive it as a problem. Ironically, in the context of the way the mother put her case, the father was recorded by Dr F as saying:
[The mother] used to label him an alcoholic. He refuted such an assertion; rather he told [the mother] he was a “piss head”.
As for the future, the father told Dr F that he anticipated no difficulty in being able to remain alcohol free for 24 hours in advance of contact with the child nor did he expect difficulty stopping for weeks duration.
Dr F opined:
[The father] ideally needs to reduce his alcohol consumption both for his health, and in the interests of being a competent and sober father for [the child]. He suggested that he would have no problems moderating his alcohol consumption in the event that he was granted contact with [the child], but one can anticipate some difficulties with cravings and possible withdrawal. He proposes to have episodes of extended contact with [the child] for holiday periods. I would advise him to engage in alcohol counselling to facilitate changes to his drinking patterns and improve his capacity to stop drinking when required.
It is difficult to offer an opinion in regards to whether [the father] requires contact with [the child] to be supervised. He is likely to be able to function adequately without supervision, but given the germane alcohol issues, it might be prudent for supervision to be required until there is confidence that his alcohol issues are effectively addressed.
The father proudly indicated that he had as a result of that advice, gone without alcohol for a month. There is no evidence of cravings or withdrawal problems.
In addition to what Dr F said, two other examples will suffice to explain the Court’s concern about simply trusting the father to have unmonitored time with the child.
First, during the tense problems within the relationship in E Town, the father said that, as alcohol consumption had been identified as a problem, he and the mother agreed that if he was going to consume excessive alcohol, he would telephone her and let her know that he was coming home from his drinking venue and that he would sleep on the couch. That agreement fell apart when, on his arrival, the mother had hidden the key. Curiously, the parties litigated over what was said and which part of the house the father had banged on to gain entry. Realistically, the only significance was that he was removed by the police upon the mother’s telephone call. The details of the police intervention were remarkably ignored in the evidence. The “arrangement” between the parties was also the subject of some dispute but there is no doubt that the mother lived in an alcohol-fuelled and aggressive environment. To the extent that the father maintained the mother was a willing participant (and there were a number of incidents where she painted a very confusing picture) I am satisfied that she had a reasonable fear of the father particularly when he had been drinking and her position now, is one of palpable fear of his presence.
The second incident relates to police intervention against the father for possession of alcohol on restricted land associated with an indigenous community. He conceded the police intervention resulting in a fine but explained that it was the doing of his employer. He acknowledged the land was restricted and that he was engaged on a worksite there. His attitude was one of complaisance. That, and all of the other focus of his alcohol use, leads to a conclusion that the Court should be cautious about his time with the child for the very reasons as expressed by Dr F. I accept the father’s evidence and that of his mother, that his consumption has been curtailed. He proudly said that he was now drinking mid-strength beer. He explained his consciousness of work obligations and the need to rise early as to why he thought he had the alcohol under control. He agreed he had consumed a limited number of drinks during the hearing over the evening meal period but then acknowledged he had had a fair bit to drink at his sister’s engagement party.

The evidence of Mr G

In relation to alcohol, Family Consultant Mr G could really only repeat the views of Dr F.

The father’s consumption of alcohol subsequent to March 2015

One thing that must be said about the father and, to his credit, is that as a result of the court order restraining him from drinking alcohol when he had possession of the child, he did not drink. That conclusion was supported by his parents and it was conceded by the mother that at handovers, she had not seen indications of drunkenness. Importantly, she led no evidence that the child said anything consistent with alcohol consumption. No evidence was led by the mother about the hotel bill, grocery bill or restaurant bills as might have been identified in credit cards to show alcohol consumption. The father’s parents were able to say, without serious challenge, what he had been doing.

I find that the father has acted responsibly with the child. It is not this Court’s function to moralise or concern itself with wider social issues about alcohol consumption. The issue is whether or not the Court can be confident that “mistakes” will not recur. Having regard to the history and the limited time that has elapsed since the maturation process of the father began in 2015, I find it is still early days. How long should elapse before that confidence could be comfortably accepted on the balance of probabilities is difficult to say but in my view, it has to be a year. There are years of travel ahead of the child over long distances and possible trips by aeroplane. All of those trips may be problematic if the father consumes alcohol even in small amounts. Thus, the reservation of the Court ought be obvious.
There is no simple answer. The mother’s view was that the father should not only attend counselling but enable her to have access to the counsellor to inquire as to what was going on. The father agreed to an order for a report to be provided at the point at which the unsupervised time begins. The father agreed to an order that the counsellor provide an indication to the mother if the father ceased the treatment or refused to comply with any reasonable direction. The Court cannot assuage the mother’s concerns but based on the evidence of the father, his parents, and Dr F, it is likely that the father will comply with an order that he not consume alcohol at any time that he has the care of the child.
In addition, there was some dispute between the parties as to whether the order should be made precluding consumption of alcohol for 48 hours prior to the commencement of the contact or just 24. The father clearly indicated that he was able to manage 24 hours but in my view, to show how serious the Court is about the issue, 48 hours seems more reasonable. If the father is going to be driving for long periods such as the nine hours between Canberra and far northwest Victoria, he cannot afford to have any effects of alcohol hindering that driving. Twenty four hours may therefore not be sufficient. There was certainly discussion during the hearing about the prospect of the father flying the child backwards and forwards but as the Court will have no control over that situation and nor will the mother, my view is that the Court should take a cautious approach. That cautious approach can see the father’s time build up but with an absolute prohibition on the consumption of alcohol before and during the time with the child. No party suggested the time for absolute prohibition should be limited and I consider the father’s problem is sufficiently serious to leave that to the parties to determine when, if ever, that restriction is removed.

Family violence

The father began his case seeking equal shared parental responsibility. When pressed in cross-examination, it became evident that his concern was more to have information and knowledge of medical issues about the child. He readily conceded that the mother could and would make proper decisions about the child and his welfare. This area of the case has to be seen in the context of two parents who do not communicate. Both indicated that they would like to try and improve that situation but neither had any idea where to start. The father was certainly unable to say how he would go about bridging the communication divide. The mother was palpably unable to see how she could deal with the father. The mother mentioned that she would go to mediation providing she did not have to go into the same room as the father. The father’s evidence was that he offered mediation but did not get a response.
Such was the fear of the father by the mother that she expressed concerns even about him knowing her residential whereabouts including where she would be staying in Adelaide when the child goes to the children’s hospital there for surgery. I accept the mother’s fear; it arises out of the issues that have arisen and to which I now turn.

The issues of violence

As a general proposition, the mother alleged that the father was “often violent” when he had been drinking. The father denied all allegations. The father pointed to the support he provided to the mother during the difficult period subsequent to the birth of the child but also the continued association during the three month separation period in 2011. Whilst the relationship came to an end in 2012, the mother continued her association with the father and in evidence, during the January 2014 visit by the father and his parents, a photograph shows the mother with her arm around the father. That picture does not necessarily accurately portray a variety of incidents which I accept did occur when the father was affected by alcohol and the mother was not. I accept that the father did become angry when he did not get his way.
Without giving any temporal connection, the mother gave evidence that the father upended the dining room table, threw the television set and broke crockery in the house on at least three occasions. All of these were when he had been drinking alcohol.
A significant issue occurred during the pregnancy where the mother said that the father grabbed her and pushed her whilst yelling abuse. Again, he had been drinking. Having regard to the cross-examination of the father about various incidents in which he conceded that he did become angry at times and his heavy drinking, I accept that it is more probable than not that the mother’s version of these events is correct.
An incident occurred after the child was born when the father returned home from playing indoor cricket. The father had “a number of drinks” with his team mates before he returned home. He said that the mother was agitated and aggressive towards him and she started slapping him. He then described his actions of picking her up and placing her on the ground. He told the court that he was able to do that because he had played rugby. He said that the mother then started kicking and punching him and banging his head against the wall and in self-defence he punched her once on the arm and crawled off to the lounge. Obviously intoxicated, he fell asleep and then was awoken by the police who removed him. No evidence was produced from the police to indicate their perception of what they witnessed upon arrival but I accept again, it is more probable than not that the father was aggressive even if the mother somehow taunted him. His description of punching the mother once in the arm as a mechanism of self-defence seems to me implausible having regard to the strength that he had and on his own evidence, his ability as a rugby player. I reject his argument that he struck the mother in self-defence. Whatever the mother did, the father’s actions amounted to an assault.
Another incident occurred in June 2012 when again according to the mother, the father returned home at 10.00pm drunk. On this occasion, she said she endeavoured to stop him going into the child’s room and he bit her on the upper right arm trying to get past her. Again, the police were called and the father was removed. Whilst the father denied the incident, I accept it is more probable than not that he did bite the mother. That was an assault.
The relationship came to an end in August 2012. Again the father had been at the hotel and returned home and as previously mentioned, was banging on the house whether it was the window or the wall does not matter. The mother gave a description of the father’s language which was abusive and derogatory. The police were called and the father was removed. I find it was more probable than not that the mother’s version is the correct one.
Section 4AB of the Act describes family violence as meaning violence, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
Section 4AB(2) gives a variety of examples that might constitute family violence but they are only of assistance if the particular conduct under consideration does not obviously fall within the definition in s 4AB(1).
In my view, the evidence of the incidents just mentioned all fall within the definition of family violence and I am satisfied that notwithstanding the mother’s curious behaviour at times in persisting with the relationship, it has been the father’s conduct that has caused her fear. She retains that fear of the father today.
The mother was cross-examined about that issue and as to why she had continued her association with the father if she was as fearful as she so described. Her response was that:
It’s very complex.
In re-examination, she was asked to explain what she meant. She said that there were so many issues involved in that. She said that it included the father’s treatment of her when the parties were together and the various physical and psychological incidents. Whilst that evidence was generally vague and unhelpful, there was a consistent pattern during this relationship in which a large amount of alcohol was consumed which affected the father following which an argument occurred and, on occasions, the police removed him.
Sadly, the father’s conduct is not confined to situations in which he has consumed alcohol. During the January 2014 contact period of 10 days, an incident occurred at the hotel pool. The father and child were in the pool and the mother was sitting by the side. In a totally inadequate piece of drafting as her evidence in chief [para 53] the mother said:
[The father] visited [northwest Victoria] from 5 January 2014 to 15 January 2014. The applicant’s parents arrived on 5 January 2014 until 11 January 2014. On 9 January 2014 at [the hotel] [the father] said to me, “We don’t fucking want you here, fuck off”. I replied, “I will have to take [the child] with me so I will get [the child]”. The applicant replied “You’re not fucking taking him, he is staying here with me”. The applicant looked at me as though he wanted to kill me.
The reality of what actually occurred and should have been described, only became clear when the father was questioned. A number of days of very happy times had occurred during which the mother was integrally involved but on the morning of 9 January, because the child was tired, the mother did not take him to the father at the designated time they had agreed. When the mother eventually arrived, the child went for a swim in the pool and the conversation occurred as described by the mother. Importantly, this conversation occurred during what should have been a happy occasion where the mother had otherwise been extraordinarily cooperative in making the relationship work. Why the father had to explode as he did, can only be explained by his own view that the mother was somehow trying to limit his contact at a time when he was very keen to spend as much time as he could with the child. The father candidly conceded it should not have occurred but it was clear that his focus was on the incident being caused by the mother rather than his own behaviour.
Again sadly, this particular incident heightened the mother’s fear of being with the father and tends to confirm what she described as the complexity of her relationship with the father to the extent that she was able to deliver the child to the father and participate in activities with the family yet remain fearful of him.
I am satisfied that the father’s conduct at various times throughout the relationship satisfies the definition of family violence in the Act.

The submissions of the parties

The Independent Children’s Lawyer submitted that the father was desirous of having a significant role in the life of the child and that he should have a decision-making role in relation to the issues of health. It was submitted that because of the alcohol issue, the presence of the grandparents for a year was justifiable.
The father’s position was that there was no justification for such a restriction. Counsel pointed to the fact that since the 2015 orders were imposed, the father had complied. He observed that the father was conceding treatment and the provision of a report. Counsel for the father submitted that the child was being deprived of the opportunity to go to Canberra if longer periods of time were not granted. The combination of the time and the concerns about alcohol in this case are real. Counsel for the father did not dispute alcohol was a problem.
Counsel for the mother submitted that her client still had concerns about sexual abuse because “she saw what she saw”. Counsel observed that there were penile infections. However, there is absolutely no evidence that would justify a conclusion that they had anything to do with sexual abuse. As I earlier observed, no such evidence was called by the mother.
Counsel for the mother also submitted that the mother saw the child naked at the father’s hotel in January 2014 and that thereafter, witnessed actions by the child akin to masturbation. Absent some evidence as I have earlier observed, a finding that that was something that the father had taught him or he had seen the father doing, could not be justified.
Counsel submitted that all of this was a source of worry and anxiety for the mother coupled with alcohol. There is no doubt that the mother suffers anxiety. The thought of unsupervised or extended time between the father and the child is a cause of anxiety for the mother. That evidence can be seen in the affidavit of her treating psychologist Ms H who was not required for cross-examination. What Ms H said was that if the father’s time was unsupervised, the mother’s level of anxiety and mental anguish would significantly increase. She then said:
This level of stress may impair her capacity to function to the best of her ability, insofar as reducing her level of concentration and energy, and causing possible low mood, agitation, and sleep disturbance.
Be that as it may, the task of the psychologist will be to deal with the issues that will not go away one way or the other.
Counsel for the mother submitted that there was an unacceptable risk of harm to the child in the father’s care as a result of his dependency on alcohol. She pointed to the diagnosis of Dr F. She observed that the father had denied there were problems and then there were the drink-driving charges.
The mother’s position was that until such time as the problems were addressed, supervision was necessary. I concede that 12 months is an arbitrary date. The mother’s position was that the arbitrary date should be when the child attains the age of 10 years on the assumption that he would then be able to protect himself and recognise the problem.
The father has not only committed himself to addressing the problem with alcohol by attending counselling, he has agreed to provide the mother with information and a monitoring process. That however could be easily manipulated because its success depends entirely upon his accuracy and honesty.
In his evidence, the father indicated that if he drank during a period of time that he had the child, he understood that he would lose his contact. Whilst I therefore understand the fears of the mother, there seems to me to be sufficient incentive for the father to comply and he has shown that he can since April 2015.

How much time can the child be away from the mother?

The mother’s evidence was that she thought that the child could separate from her immediately for two days but beyond that, she had doubts. She pointed to the fact that during the trial, the child was in the care of some friends with whom he regularly played and he was distressed at her absence. Against that, the paternal grandmother told the Court that if the child woke during the night, he was easily settled by either her or by the father. the child has not however had significant periods of time in the father’s care.
Family Consultant G addressed this issue in his February 2016 report which remains unchallenged. He concluded that the significant increase in time proposed by the father was excessive. He described in his September 2015 report that the relationship between the child and his father was “tenuous”. In that report, Mr G said that the relationship needed to progress. All of the evidence points to the fact that the relationship has progressed. Whilst the mother was concerned about post-contact aggressive behaviour by the child which in her evidence, she attributed to the father and his family teaching the child aggression, the evidence does not support a conclusion that the father does not have the necessary parenting skills to care for the child properly. There is no evidence as to the cause of these problems. Mr G witnessed the same sort of aggression by the child whilst in the father’s care. The paternal grandmother had no difficulty in settling the child at night. There may be many explanations for his behaviour including that the father is a rough and tumble sort of parent or alternatively that the child is distressed by missing the presence of his mother. The absence of the evidence does not enable me to make any specific finding on the subject but it does seem to be a basis to slowly advance the periods of time over the ensuing year. The mother needs certainty to enable her to have her anxiety addressed professionally and the father needs some certainty so that he can address the alcohol problem knowing that he cannot drink anything whilst he is responsible for the child even if it is a significant holiday period.
In my view, this is a case where the relationship is sufficiently sound to enable time to be extended progressively and gradually.

The legal issues

Part VII of the Act guides the process in relation to the making of parenting orders.
Section 60B of the Act sets out the objects of Part VII. They are to ensure that the best interests of children are met and hence, the objects act as a guide. The objects are:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60CA requires that in deciding whether to make a particular parenting order in relation to a child, the court must consider the best interests of the child as the paramount consideration.
To determine what is in the best interests of a child, the court is obliged to examine the factors set out in s 60CC.
The power to make a parenting order is found in s 65D and that provides:
In proceedings for a parenting order, the court may, subject to ss 61DA (presumption of equal shared parental responsibility when making parenting orders)…and this Division, make such parenting order as it thinks proper. (my emphasis).
Section 61DA requires the court to apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. The presumption does not apply in circumstances of abuse or family violence and it may be rebutted by evidence that satisfies the court that it would not be in the best interests of a child for the parents to have that responsibility.
Having regard to the findings earlier made, the presumption does not apply here. That does not exclude the prospect that equal sharing of the decision-making process should not still be considered. Both the father and the Independent Children’s Lawyer urged that here. However, that issue should not be determined on the basis of parental desires or rights but upon the likelihood of the success of parties meeting their statutory obligation as set out in s 65DAC of the Act. That provides:
(1)This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2)The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3)The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
On my view of the evidence, the parties could not currently meet those standards even indirectly through electronic communication. That does not mean that the father should be ignored.

Section 61DA does not provide any presumption about the amount of time that a child should spend with a parent. That issue is dealt with in s 65DAA. That is not relevant here because the sort of orders contemplated by s 65DAA are not pursued by either party.
Any order however must have the best interests of the children as the paramount consideration. Section 60CC(2) and (3) provide the guidance. In respect of those considerations, I make the following findings:
·There is clearly a benefit to the child in having a meaningful relationship with both parents and it currently exists. The evidence of the mother’s psychologist about anxiety is accepted but I do not conclude that her relationship will be any less meaningful nor that her capacity to care for the child will diminish as a result of an extension of time including time unsupervised with the father. The mother’s evidence is accepted that she wants the father to have a relationship with the child but in a safe environment and the safeguards that I propose at the commencement of these reasons, in my view, enable a meaningful relationship between the child and the father but without there being an unacceptable risk;
·There is no question in this case that the need to protect the child overrides, and must be given greater weight than, his right to having a meaningful relationship with his father. Common sense dictates that such a relationship cannot exist if the child is harmed. I have taken into account and reiterate that there is a risk to the child in the care of the father if he was to consume alcohol but in my view, the risk is not unacceptable;
·Any views held by the child about what relationship he should have with the father can have no weight in regard to his age;
·The relationship between the mother and the child is unchallenged. The father, albeit I have strongly criticised him for his drunkenness and behaviour, respected the mother as a competent parent and the absence of personal contact as a result of what the parties have arranged between themselves including under court orders, enables the close relationship between the mother and the child not to be prejudiced;
·The evidence does not support a conclusion in relation to the maternal grandmother and other members of that family. The relationship between the father and the paternal grandmother appears sound and I have confidence on the evidence set out above that the grandmother would not put the child at risk if the father endeavoured to consume alcohol or behave inappropriately with the child in his care;
·Whilst the mother ceased the contact for 14 months as between the father and the child, he took no action during that period of time and the evidence does not support a conclusion that the mother was acting inappropriately having regard to the advice she received from the relevant domestic violence and welfare authorities. It is most unfortunate that the delay in instituting proceedings gave rise to the concern expressed by Mr G that the relationship between the father and the child was tenuous. The father has taken significant steps for which he is to be commended in constantly attending the monthly visits and apart from the unexplained reactions of the child at the conclusion of those periods, all of the evidence points to the fact that there is a strong and developing relationship between father and child;
·All of the evidence supports the conclusion that the father is communicating with the child by telephone albeit under some difficulty because of the child’s speech but again, both parents are to be commended for those efforts;
·The evidence of the father’s child support commitment indicates that it is being fulfilled and the mother made no complaint about that issue;
·I have already expressed concerns about the likely effect of changes in the child’ life by separation from his mother (and there is no evidence to indicate that he is distressed by the absence of his father) but in my view, a further consistent and persistent contact regime and telephone communication should overcome those potential separation anxieties. To the extent that they do not, I would expect the paternal grandmother to assist in arranging for assistance from the mother or indeed, a return of the child to the mother;
·There are significant practical difficulties and expense associated with the orders that I have proposed to make. Both parties are aware of the tyranny of distance and its consequential cost. Both parties indicated a desire to cooperate with respect to that. There is a significant driving period involved and the father expressed in evidence a plan which I think is sensible for part of the trip to be undertaken by air when he has the child in his care to reduce the burden. Nothing was put to the father by counsel for the Independent Children’s Lawyer or the mother to indicate opposition to that concept. I find in those circumstances that the parties have addressed the practical difficulties and they will be overcome by cooperation;
·The father did not dispute the capacity of the mother to provide for the emotional and intellectual needs as well as the physical needs of the child. The mother’s only concern about the father seems to be his rough handling and inappropriate encouragement but those issues were such that on the evidence, I could not find any criticism should be levelled at the father or his family. As I observed in discussion, the child will have two different lifestyles which may all make up part of the rich tapestry of life until such time as his parents are able to sit down and work out a combined strategy. The parties are a long way from that at this stage;
·The court is obliged to contemplate the last point in respect of not just the maturity, sex, lifestyle and background of the child but also the parents, and having regard to the limited education of the father and the tertiary education of the mother, common sense dictates that absent some discussion about a joint approach to parenting, there will be parallel parenting. Nothing in the evidence indicated that the father would prejudice the psychological or physical health of the child (save for the issue of alcohol consumption which I accept the father is addressing);
·The attitude of the parents to not only the child but also the responsibilities of parenthood have to be seen through the prism of their respective circumstances of various times since the birth of the child. As can be seen from the reasons above, the early months of the child were traumatic at various times but the father was also supportive of the mother at others during what were difficult times when hospital visits for the child were required. There can be no doubt from community standards that drug usage, excessive consumption of alcohol and family violence are all indicia of irresponsible parenting. The separation of the parents should have seen an end of that and the intervention order referred to in the reasons is simply a recognition of concern by the law that intervention is needed in the lives of the parties and in particular that of the father but against that, the incident in the swimming pool at the hotel in January 2014 is of concern and because it occurred at all, let alone in the presence of the child, it is an indication of irresponsible parenting. Nothing in the evidence indicates a repetition of that event and one would hope that that continues.;
·I do not intend to repeat the findings in relation to family violence or indeed the fact that an order has been made notwithstanding the provisions of s 60CC(3)(k) had not been complied with. The evidence about how that intervention order came about were sketchy particularly as it would seem that it was sought in the context of the mother’s concern about sexual activity rather than threats of violence. Practitioners should carefully look at the requirements of s 60CC(3)(k) in drafting evidentiary matters; and
·I have no doubt in this case, notwithstanding the age of the child, that final orders should be made rather than a testing of the relationship as suggested by Mr G and proposed by the mother, through interim orders. The father has shown a period of stability supported by his mother as well as a willingness to provide information to the mother to show that he is serious about overcoming what I consider to be a serious alcohol problem.
In my view, this is a case in which final orders should be made looking to the foreseeable future with a hope that in the end, the parties can reach agreement to vary times to suit the child as well as themselves having regard to what will be an apparent ongoing tyranny of distance.

Issues pursued by the mother

The grandfather

The paternal grandfather was a witness in the proceedings and was cross-examined. He does not enjoy a good relationship with the mother. He was named as one of the two people involved in the substantial attendance upon the father and the child by the orders of Judge Maguire in the Federal Circuit Court in April 2015. In the monthly visits that have occurred since that time, there have been three occasions when the paternal grandmother has been unable to attend and the paternal grandfather substituted. There is little doubt that the grandfather has a good relationship with the child. That can be seen from the photographs that were tendered in evidence. The paternal grandmother indicated that if problems occurred during the night when the child was sleeping alongside of her or indeed during the day, the child went to either her or the father rather than the grandfather. That is not to say that the grandfather does not enjoy a good relationship with the child.
Having regard to the palpably poor relationship between the mother and the paternal grandfather which he conceded, and the criticisms of the mother in her affidavit, I do not consider it is appropriate that he be in a position of responsibility such that communication would have to take place with the mother because that might cause conflict and take away the obvious benefit for the child.
It will be apparent from what has been set out above that I reject the mother’s application set out in [8] of her outline. She sought (ironically) that both parties be restrained from denigrating, abusing or insulting the other. That order was not supported by either the Independent Children’s Lawyer or the father. In my view, there are jurisdictional issues associated with that order having regard to the extant intervention order. The more recent evidence since January 2014 has indicated that there are no indicators of denigration, abuse or insult. There was certainly evidence that the father had reacted to a comment made by the child in which the father said that the mother was a liar. The father candidly acknowledged that and immediately indicated that he regretted having said it. In my view, with the existence of the intervention order, there is no basis for that sort of order.
The mother also sought an order that the father undergo supervised urine drug screen for alcohol and illicit drugs within 24 hours of a written request by the mother or her solicitor. Having regard to the way in which the mother’s case had been prepared, I have little confidence that such a request would be appropriately made. It is hard to see the connection between that and the father’s time particularly, as was discussed, it is a well-known fact of which I can take judicial notice, that alcohol only remains in the blood stream for a very short space of time. This is not a case in which illicit drugs seem to pervade the parties’ relationship any longer. That order is not appropriate in the circumstances.
The mother also sought an order that (ironically) both parties undertake an anger management course. It is not clear why she would seek an order that she attend anger management. Whilst there were certainly allegations from an earlier part of the relationship, there has been no suggestion of any such conduct on the mother’s part of recent times. As the father indicated that he would attend any course requested, it is hard to know what benefit he would gain from it unless he understood the significance of the impact of anger on the child. Anger is a natural emotion but its manifestation is the problem for children who witness such conflict. If the reasons set out above do not explain the court’s concerns about conflict and inappropriate behaviour, it is hard to see how an anger management course is going to provide any assistance to the father let alone the mother.
The mother also sought that the father attend (and again she be ordered to attend as well), an “effective parenting program”. The father has already attended that program and seemed to indicate that there was little he gained from it. I am not sure what it is proposed by the mother that she would gain from such a course. Presumably, she can do that if she so wishes. The proposed orders in relation to anger management, denigration and attending a parenting program all have a flavour of mutual need. It is not clear why that is so in this case and the evidence certainly does not support such orders being made here.
The mother also sought an order that the father undergo drug and alcohol counselling as recommended by Dr F. I have made provision for those orders on the basis of the counselling arrangement that the father is currently undergoing. Whilst the mother did not have access to that information and was not told about it, that is as much about forensic examination and preparation of this case as anything else. In my view, the orders I have provided cover the counselling issue adequately.
The next order that the mother sought was that after the receipt of an assessment by Dr F, the parties attend mediation. I have already dealt with that issue as well. That is an inappropriate order (leaving aside the question of jurisdiction to make such an order) in circumstances where there are clear fear issues of the mother and no indication as to how it would work as contemplated.
The mother then sought an order that the child have ongoing counselling with a clinical psychologist organised by the mother. I do not understand why that order would be necessary in circumstances where the child has not even commenced kindergarten at the moment. Just what he would understand as being carried out remains a mystery.
That finally leaves the question of an order for decision-making or shared parental responsibility. As earlier indicated, the presumption does not apply.
The father wants to have an involvement but more for information and decision-making purposes.
Section 64B(2)(c) provides the power to the court to make an order relating to the allocation of parental responsibility in circumstances where the other provisions of the Act do not logically follow. Whatever the parties desire, any such order must be in the best interests of the child. I consider that the father is sufficiently interested to have that important role and despite her reticence in having communication with the father, the mother consistently said that she wanted him to have a relationship with the child but in a protected environment. I have interpreted her statement to mean that for the child, she values having a responsible input of the father into significant decisions.
Section 4 of the Act provides some assistance. It defines the sort of decisions that would normally require joint parental involvement and effort. It says:
major long-term issues in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)      the child's education (both current and future); and
(b)      the child's religious and cultural upbringing; and
(c)      the child's health; and
(d)      the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
(a) and (c) are the only likely decisions in the life of the child to arise in the foreseeable future and both are significant. With the tenuous nature of the parental relationship, I find there is little prospect at the moment of those decisions being made efficaciously. At a time where the health of the child is a problem, delay and argument is not in his best interests. The mother needs to make those decisions as she will carry the responsibility to implement them quickly. The father needs to be consulted but I have no doubt the mother would not prejudice the health of the child. For that reason, I have drafted the order at the commencement of these reasons.
Education is a different matter. The parties are a long distance apart and the interest of the father is obvious but the mother again will carry the responsibility for implementing things. I think the best solution is that like the health matters, she should consult but ultimately decide.
The other major decisions are less likely to regularly arise but there is no reason why they should not be done jointly through written communication.
There are obviously other decisions of a less significance that fall under the description of parenting responsibility. That has been defined in s 61B to mean:
...all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Both parents want the best for the child and absent the concerns I have expressed about the father’s behaviour, I have no doubt he wants the best for the child. I think those decisions should be made through email communication.

Conclusion

In my view, the orders set out at the commencement of these reasons are in the best interests of the child.

I certify that the preceding One Hundred and Twenty Three (123) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 11 March 2016.

Associate:

Date: 11 March 2016

[2016] FamCA 150

11 March 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Remedies

Procedural Fairness