Nagle and Abrahams

FEDERAL CIRCUIT COURT OF AUSTRALIA

NAGLE & ABRAHAMS

[2017] FCCA 1913

Catchwords:
FAMILY LAW – Parenting – Where the mother’s older child from a previous relationship was removed by the Department but where the mother is doing a good job parenting the 4 year old child who is the subject of these proceedings - unresolved concerns about the father’s mental health and parenting capacity – child to live with the mother and spend time with the father only if the mother agrees in writing.

Legislation:

Family Law Act 1975, ss.60CC, 61DA

Mazorski & Albright [2007] FamCA 520

Applicant:

MR NAGLE

Respondent:

MS ABRAHAMS

File Number:

NCC 1154 of 2014

Judgment of:

Judge Terry

Hearing dates:

7 & 8 September & 4 October 2016 and 18

May 2017

Date of Last Submission:

18 May 2017

Delivered at:

Newcastle

Delivered on:

14 June 2017

REPRESENTATION

Appearance for the Applicant:

In Person

Counsel for the Respondent:

Mr Murray

Solicitors for the Respondent:

Coast Law

Solicitor Advocate for the Independent Children’s Lawyer:

Mr Quinn

Solicitor for the Independent Children’s Lawyer:

Intercept Law

ORDERS

The child X born (omitted) 2013 (‘the child’) shall live with the mother.
The mother shall have sole parental responsibility for the child.
The child shall spend time with the father as determined by the mother NOTING THAT the mother’s decision regarding whether the time occurs will be final and the mother may require the time to be supervised.
The father may send letters, cards and gifts to the child three times a year being on about the child’s birthday, on or about Christmas Day and in or around August each year.
The mother is to provide written information about the child to the father three times a year including photographs of the child and once the child commences school, copies of school reports and photographs and other information provided to parents.
Each party shall advise the other in writing within 7 days of a mailing address to which the letters, cards and gifts or the information pursuant to order 5 may be sent and shall advise the other party of any change to those details within 7 days of the change.
The mother is restrained from bringing the child into contact with or allowing the child to communicate with the maternal step-grandfather MR J.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1154 of 2014

MR NAGLE

Applicant

And

MS ABRAHAMS

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
The issue in dispute in this case is parenting arrangements for X aged 4.
In his application filed in 2014 the father sought orders that he have sole parental responsibility for the child and that she live with him and spend time with the mother.
In the family report prepared in March 2015 the family consultant noted that the father was originally proposing supervised time but said that he told her that time did not need to be supervised although he had not given much thought to what would be appropriate.
At the commencement of the hearing the father was asked what his proposal was for the mother to spend time with the child and he reverted to a supervised time proposal, indeed he said that his immediate thought was that the mother should spend the same time with X as she was spending with her son Y who is in care, namely supervised time for two hours six times a year.
The father said that if the court ordered that X live with the mother, he wanted as much time as possible with her but at least shared care week on and week off.
During closing submissions the father focused on what he said were the risks to X of living with the mother and the maternal grandmother. He said that they had a disturbing history of aggression, that the child had come to him with some injuries and that the mother and maternal grandmother caused fights with him at changeovers and had denied him time with X for no valid reason.
The father did not focus on his daughter as such rather he said “why I’m here is the disturbing history of these people”, meaning the mother and the maternal grandmother. He added that “I’m not the first person they have tried to” he said, “deface character”, but I think he meant defame.
The mother’s proposal was that she should have sole parental responsibility and that the child should live with her.
When the hearing commenced the mother’s proposal was that the child should spend time with the father for one overnight each alternate weekend and for one week blocks in the school holidays once she commenced school. As a result of the evidence which emerged at trial however in closing submissions her proposal was that the child should spend no time with the father.
The Independent Children’s Lawyer’s proposal at the end of the trial was also for no time.
In the family report the report writer said that an issue identified by the father was the mother’s long-term parenting capacity and an issue that she identified was the high conflict and poor communication between the parents.
She noted that the father also raised an issue about whether the mother might bring the child into contact with the maternal step-grandfather who has child sex convictions.
There was certainly valid reason early on to be concerned about or at least to take a careful look at the mother’s parenting capacity. Her older child Y was taken into care as a baby, and the father made allegations about her attention to hygiene, alleged physical abuse of the child and deficient day to day care which needed to be investigated.
However as the trial went on the issue of the mother’s capacity to look after the child fell away.
The mother undoubtedly has her problems. On her own report she has ADHD and an intellectual disability and Y was taken into care when he was five months old. However X has never been taken into care and X is now four. She is attending day care three days a week and has been for some time and nothing adverse has been noted at day care. There has never been any Departmental involvement with X and the mother has accepted assistance from services which have offered to help her since X’s birth.
The issue the family consultant identified of the extremely poor and mistrustful relationship between the parents remained an issue however and a new issue emerged once the trial commenced.
The family consultant noted the father’s lack of parenting experience in the report and made some comments about his patronising behaviour to the mother and those issues remained of concern, but the issue which came to the fore as a result of the trial affidavit the father filed and answers he gave during cross-examination was whether there was reason to be concerned about his mental health.

The evidence

The father was the only witness in his case. Embedded in his evidence were a couple of witnesses statements or supporting statements from people the father knows but he was the only witness who gave evidence and was cross-examined.
The mother was the only witness in her case.
A family report was prepared by Dr T, a family consultant. It was prepared in March 2015 when X was one year and 11 months old so it was 18 months old when the trial commenced last year and two years old when the trial recently ended.
In September 2016, just before the trial was due to commence, the father filed an application asking the court to adjourn the trial and order an updated family report. I declined to do so because of the age of the proceedings and a question in my mind about what would be gained by ordering an updated report.
Family reports are valuable pieces of evidence in parenting proceedings but they are only one piece of evidence.
In this particular case the father had raised issues about the mother’s parenting capacity but there was other evidence in the case, including evidence from service providers, which could cast light on that and it was likely to be better evidence than any further observation by the family consultant.
The father’s parenting capacity and his mental health were issues in the case as was whether the mother was inappropriately bringing the child into contact with the maternal step-grandfather but these issues could be and were the subject of independent evidence and finally X, even at the age of four, was too young to have a view about parenting matters.
A more recent observation of the child with the mother and father would have been useful especially given that the mother raised an issue in her affidavit about the child’s willingness to spend time with the father but I was concerned about the considerable delay which would result from ordering a further report, which could have been six months to get the report and then a further delay until trial, and I declined on balance to order an updated report.
A piece of evidence which came into existence during the trial was a report from a psychiatrist, Dr R.
The content of the father’s trial affidavit and some of his answers in cross-examination raised considerable concern about his mental health. The Independent Children’s Lawyer was able to obtain funding for the preparation of a psychiatric report but sadly the process went awry.
The Independent Children’s Lawyer sent the psychiatrist the wrong affidavit, a much earlier affidavit of the father’s and not the one filed in September 2016 which had raised concerns for the court, and Dr R’s report was largely based on information provided by the father and the father’s presentation on the day and was not helpful.
After the report was produced and the error discovered, the psychiatrist was approached by the Independent Children’s Lawyer about doing a supplementary report and also about attending for cross-examination. However in a letter dated 26 April 2017, he said that he was taking some unexpected medical leave for at least another eight weeks and would be unavailable for a prolonged period to either do a further report or be cross-examined.
We therefore had to proceed with the evidence in the state that it was. The parents are both in receipt of Centrelink benefits. They had no capacity to pay for a further report by a different psychiatrist

Background

The parties commenced a relationship in (omitted) 2012 when they were 37 and 29 or thereabouts respectively. They never lived together but they conceived a child X and she was born on (omitted) 2013.
The relationship ended in November or December 2013 when X was about eight months old.
The father has no other children but the mother has a son Y who was born on (omitted) 2007. Y was taken into care by the Department of Family & Community Services in February 2008 when he was about five months old and he remains under the long-term care of the Minister.
When the mother fell pregnant with X, she was concerned that the Department might take X and I can understand why she would have been. However around the time of X’s birth, the mother received intensive family support from the Samaritans. The Department did not take X and she has remained in the mother’s care ever since.
The Department were aware of the identity of the father at the time of X’s birth and were aware that he was involved with the mother and the family consultant commented that in the Department’s notes they said that they regarded him as a protective factor.
However the extent of their knowledge of the father is not clear and the father can present as confident and well-spoken. There was no evidence of any in depth examination of him or his circumstances by the Department.
In any event X remained in the mother’s care following her birth and after the parties’ relationship ended when X was around seven months old the mother continued to look after her and continued to receive support from a service.
The mother allowed the father to spend time with X at her home after the final separation but she alleged that he was verbally abusive to her and sometimes affected by alcohol and said that after a few months she told him he was no longer welcome at her home. It appears that she agreed to a few visits elsewhere but that did not work very well either.
The father does not accept that the mother’s complaints about his behaviour are valid but I cannot discount them given the evidence about the ongoing high conflict between the parties which is consistent with what the mother said happened at her home.
Another reason I cannot discount the mother’s complaints is that not long before the trial commenced in September 2016 the father had an issue with his then partner Ms L which led to the police being called. Ms L alleged that the father had pushed her over although the father said that she had slipped on something wet. The police said that when they attended the father was moderately affected by alcohol.
In my view there is likely to be substance in the mother’s claims about what happened when the father came to her home immediately after separation.
As a result of the time ceasing the father filed an application for parenting orders in May 2014 and the orders he sought were that the child live with him and spend supervised time with the mother.
In June 2014 interim orders were made for the father to spend time with the child, who was then only 15 months old, for a limited period mainly at (omitted) Aboriginal Centre.
In October 2014 orders were made for the child to spend time with the father for three and a half hours on three occasions each week and for an overnight to occur each month from January 2015.
An order was also made restraining the parties from allowing the child to come into contact with three named people, one of whom was the maternal step-grandfather Mr J and one of whom was the father’s then and apparently ongoing flatmate Mr T.
In February 2015 orders were made for the father to spend time with X each Wednesday from 12.00pm to 4.00pm, each alternate Sunday from 12.00pm to 4.00pm and in the other week from 12 noon on Sunday to 12 noon on Monday.
Because of concerns about the mother’s parenting capacity, an order was made that she enrol the child in day care or preschool three days a week. The mother complied with that order.
A family report was prepared in March 2015. Following the release of the report and apparently because the parties were legally aided, they were obliged to attend more than one legal aid intervention conference. However the matter did not resolve and eventually it was listed for trial in September 2016.
The father had then very recently separated from his partner Ms L with some police involvement.
The content of the father’s trial affidavit and his answers in cross-examination raised serious concerns about his mental health. The matter was therefore adjourned so that a psychiatrist’s report could be obtained, but as I noted earlier that process went awry and the trial finally concluded in May 2017 with the cross-examination of the family report writer and submissions.
As a result of the concerns which arose about the father’s mental health, an order was made on 8 September 2016 suspending his unsupervised time with X and it was ordered that he spend supervised time with her at the (omitted) Children's Contact Centre.
The parties took part in the intake procedure for the centre but as far as I am aware, time did not commence prior to the hearing resuming in May 2017 and the father has not seen X since September 2016.

The parties current circumstances

The mother is living with X in a house provided by Aboriginal Housing. She has not re-partnered. X attends day care three days a week and there is nothing in the information provided by day care to suggest that she is anything other than well looked after.
An order was also made in September 2016 permitting the mother to reduce the child’s days at preschool from three to two but I understand that did not in fact happen and the child has continued to attend preschool three days a week.
The mother is in receipt of a Disability Support Pension. She told the family consultant that she had a mild intellectual delay due to lack of oxygen at birth. She said she was loud, used words wrongly and had difficulty reading.
The mother has had the support of various organisations since X was born. The current one is (omitted) Family Services. The mother has been engaged with them since January 2016. She has always been willing to take advice and accept help which is good for X.
The mother sees Y on a few occasions each year supervised by the Department. She told the family consultant in March 2015 that she had been encouraged by the Department to apply to get Y back into her care and the family consultant mentioned in her report that she had checked into that and confirmed that it was correct.
It has not yet happened and whether it is now likely to happen given the information about Y’s bonding with his current carers is unclear to me. However the mother has never lost interest in Y and she continues to see him occasionally supervised.
The maternal grandmother is in a wheelchair due to an accident about 25 years ago. One of the police records was about the maternal grandmother having a feisty conflict with the police when her son was in custody and it was quite amusing; it is amusing to think of somebody in a wheelchair having a stoush with the police
The maternal grandmother attended the family report interviews. I think it is fair to say from the subpoenaed material and from the father’s evidence that she has a fairly forceful personality but she is very supportive of the mother.
At the time of trial the maternal grandmother was living with the maternal step-grandfather. The maternal grandmother was somewhat resistant during the proceedings to reveal details about the stepgrandfather’s convictions and she expressed the view that the child pornography material that he was convicted of possessing may have been a plant. However there is no doubt that he was convicted of possessing child pornography material and the mother said that she would consent to an order that the child not be brought into contact with him and that is entirely appropriate and indeed necessary.
The father lives in (omitted) not far from the mother’s house. Mr T lives with him. Nothing is known about Mr T.
When the father swore his affidavit on 7 September 2016, he said that he was in a relationship with Ms L although they were living separately. During cross-examination it emerged that on 30 August 2016 they had an altercation which resulted in the police being called. The police took out a provisional Apprehended Domestic Violence Order (ADVO) for a month to protect Ms L from the father.
The father is now telling me from the bar table that there is no ADVO currently in existence but the concern was that the father did not reveal the provisional ADVO in his trial affidavit.
The police report of the incident between the father and Ms L suggested that the father was moderately affected by alcohol at the time which resonated for me with some evidence the mother gave.
In any event that seemed, on the father’s evidence at trial, to see the end of his relationship with Ms L.
The father is also on a Disability Support Pension. He said that he had Jaw Wink syndrome but that it was not something which required treatment or impacted on his parenting capacity.
The father said that he had been a volunteer at (omitted) for two and a half years although he told the family consultant that he had no (omitted) qualifications. He provided letters from two people in his material confirming that he did (employment omitted) there at one time, it seems on a fairly limited basis, but there was also some oral evidence from recollection which indicated he may not have worked there since April 2016.

The father had a very difficult upbringing. His mother has very serious mental health issues and the family consultant said as follows:
As a result of her childhood and the trauma she experienced living in institutions; Ms. H reported that she has a complex current mental health presentation. She reported that she is currently diagnosed with Chronic Complex Post Traumatic Stress Disorder (PTSD), Chronic Panic and Anxiety Disorders, Dissociative states and a Sleep Disorder. Ms. H reported that she is currently on Xanax for her mental health issues. Ms. H reported that she is receiving counselling through a counsellor at the Forgotten Australians Counselling Service.
The paternal grandmother acknowledged that she was not always the best parent and disclosed that she had been admitted to a psychiatric institution for suicidal ideation when her two children were aged 3 and 4 years old. Ms H reported that the two children (Mr Nagle and Mr R) were in care for 8 months. Ms H denied any other significant separations during Mr Nagle’s childhood. [1]
[1] Family Report paragraphs 48 & 50
The father’s brother has schizophrenia.
One of my overarching concerns about the father’s proposals, particularly his proposal that X live with him, was that he never at any time provided anything other than very limited information about his own living arrangements. No information was provided about Mr T and no affidavit was filed by him. No information was provided about Ms L. She did not attend the family report interviews.
The father did not put forward any information about what his plans were if the child lived with him in terms of where she would go to school or day care or who would supervise her. His case significantly focused on criticism of the mother rather than in putting forward a positive and transparent case about himself.
I finally want to note here – and I mainly want to put this in the judgment in case there are any future issues and I am not suggesting the father has done this for any nefarious reason – that the father is known as Mr Nagle but he was originally Mr Nagle. Some of his police records are under the name of Mr Nagle; he is named as Mr Nagle in the Ms L incident in September 2016.

X’s best interests

Any orders I make about X must be orders which are determined by treating her best interests as the paramount consideration and the matters to which I must have regard in order to determine X’s best interests are contained in s. 60CC(2) and (3) of the Family Law Act.
S. 60CC(2) contains the primary considerations, which are the benefit to the child of having a meaningful relationship with both of her parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The additional considerations are matters such as the child’s views, her relationship with the parties, whether there has been any family violence and parenting capacity. Sometimes it is necessary to deal with the additional considerations before proper consideration can be given to the primary considerations. This is such a case and I am going to start with the additional considerations.
The first of the additional considerations is the views of the child and the weight to be given to those views.
There is no independent evidence about X’s views. She was one year 11 months old when the family report was prepared and she is still only just four. She was too young originally to speak to the family consultant and many family consultants would consider her too young now although some might attempt to talk to her depending on her level of speech.
I must consider the nature of the relationship of the child with each of her parents and any other relevant person.
I will start with the mother although she is the respondent.
The father told the family consultant that X had a strong bond with her mother. The family consultant was also of the view that this was the case and that the mother was X’s primary attachment figure.
The family consultant said as follows:
X was initially observed with the mother. X appeared comfortable with the mother and they engaged in play together and clearly enjoyed each other’s company. X was happy and smiling throughout the duration of the observation session. The mother was observed to use child-friendly language during the observation session. At the beginning of the session, X was observed to be drawing on the paper. At times, X began to draw on the table. Each time, the mother responded with a firm “No” and redirected X back to the paper. After X had attempted to draw on the table a few times, the mother was head to say “Mummy will take it off you”, referring to the pencil. The mother was calm during this process with no anger or aggression visible. After the drawing was finished, the mother attempted to get X to write “To Nanny” on the drawing. The mother attempted to encourage the child to write (with the mother’s help) twice but was then able to move from the proposed activity and the mother wrote the information on the paper. X was observed to experience frustration with the mother whilst the mother was encouraging her to “write”.[2]
[2] Family Report paragraph 119
The maternal grandmother also has a good relationship with the child. The family consultant said as follows in her report:
The subject child was observed to have a warm relationship with the maternal grandmother, with the subject child running to the maternal grandmother after the maternal grandmother had been absent for a short period of time.[3]
[3] Family Report paragraph 125
I have no reason to believe that anything has changed in that regard.
The family consultant observed a good relationship between the father and the child at the family report interviews and the mother told the family consultant that the child loved the father and was excited to see him. The family consultant said as follows:
X was observed to run to her father and smile and laugh when she spent time with the father. Initially, the father was very quiet in the observation session. The father was observed to use adult language with the subject child, rather than child-friendly language. It was noted that the subject child “tested” the father by deliberately and proactively pretending to draw on the table. The father simply said “Stop X” and the child stopped immediately. The father and X engaged in enjoyable play time activities and X was observed to bring her father toys to show him. During one play activity, the father asked X what the magic word was and X said “Please”. The father stated to the report-writer, “I taught her that”. There were no observable signs of fear, anxiety or worry in the subject child during the observation session. [4]
[4] Family Report paragraph 123
The mother said that there had been occasions more recently when X was reluctant to go to the father. Normally it would be difficult to place weight on this evidence but given the evidence that emerged in cross-examination and in the father’s affidavit about possible issues with his mental health, I cannot absolutely discount the possibility that there are some issues with the father’s care of the child and I cannot make any positive finding about the current state of the father’s relationship with the child.
The paternal grandmother, who has had a very difficult life and has mental health issues of her own, attended the family report interviews. She was spending some limited time with the child at a play centre at that point but there is nothing in any of the material to inform me about whether contact between the paternal grandmother and the child is continuing. I can see the mother nodding in the back of the court but I cannot take fresh evidence in the course of delivering this decision.
I must consider the extent to which each parent has taken or failed to take the opportunity to spend time with and communicate with the child or participate in making decisions about her.
I cannot fault either parent in that regard so that is not a relevant consideration.
I must consider the financial support of the child.
There was no evidence at trial that there was a child support assessment in place. There may be but if there is I was not told about it.
The mother complained that the father did not always pay his share of the day-care fees which was something they seem to have agreed on at some point but the evidence was too imprecise to allow me to make a finding about that.
X lives primarily with the mother and has not seen the father for well over six months and there is no doubt the mother is the person who is financially supporting the child.
I must consider the likely effect of any change in the child’s circumstances.
This is an important consideration in the case.
The father has never resiled from his case that the child should live with him. This would be a dramatic change for a child who is primarily attached to her mother. It is not a change that the court would consider making unless there were very serious safety issues and there is simply no evidence that there are such issues in this case.
A fall-back position for the father was week-about shared care. There are a couple of problems with that. One is that this also would be a dramatic change for the child especially given that there has been a cessation of time in the last six months. I consider it unlikely that the child would cope with a change from living primarily with her mother.
It is also an outcome which would be unworkable because of the parent’s relationship which I will refer to in more detail later on.
I also could not consider it if the father had parenting capacity issues and in my view he does.
The real issue in the case is not whether there should be a change of residence for the child but the nature and extent of the time the child should spend with the father and by the end of the trial the issue was whether she should resume spending time with him or whether she should not.
The likely effect of that occurring or not occurring as the case may be and the decision I should make about it, I cannot determine until I make findings about the remaining s. 60CC (3) matters and the s. 60CC (2) matters.
The next additional consideration is the practical difficulty and expense of a child spending time with a parent.
That is not a relevant consideration because the parents live very close to each other.
The Independent Children’s Lawyer was concerned about the fact that in the not too distant past the father had moved to an address which is quite close to the mother’s. I can understand why the Independent Children’s Lawyer was concerned about that because of the nature of the parent’s relationship and the concerns the mother had raised in the past about alleged stalking. However I cannot find on the state of the evidence that the father deliberately did this to intimidate the mother. He may genuinely have moved there because that happened to be the housing available for him.
I must consider the capacity of each parent to provide for the needs of the child including her intellectual and emotional needs.
Again I am going to start with the mother even though she is the respondent.
Y was taken into care when he was five months old and that raised a red flag in the family consultant’s mind about the mother’s parenting capacity.
The mother said that Y was taken into care as a result of issues to do with his father and then stuff ups with her approach to the Children’s Court. I cannot be sure that is the whole story. The family consultant considered this issue in detail and said as follows:
The mother is of the belief that FACS removed her oldest child Y due to Y’s natural father being a heavy drug user and domestic violence between the mother and the natural father of Y (Mr. K). Upon further questioning, the mother reported that Y was removed due to the hygiene in the home being poor, violence between the natural parents, FACS thought she would not be able to cope with Y’s medical needs and anger issues of the mother. The mother agreed cheerfully that she had anger issues with people in authority. The mother explained the poor hygiene in the home due to her being unable to perform cleaning tasks for a 6 month period due to having a Caesarean birth with Y.[5]
[5] Family Report paragraph 67
I have also read the report the father tendered during the trial but I cannot make any definitive findings about why Y was taken into care; it was not the subject of a close enquiry at this trial.
The mother has parented X very differently so I do not consider the mere fact that Y was taken into care is relevant. What is relevant – and the family consultant pointed this out – is that the father is quite fixated on the issue of why Y was taken into care and fixated on the idea that the mother should accept responsibility for what happened to Y.
The family consultant was concerned about the father’s fixation with this in March 2015 and the father is still fixated about it. He referred to it repeatedly during the trial. He seemed to consider that the court needed to enquire deeply into it. He referred to it in his closing submissions. Even though Y was taken into care years before the father commenced a relationship with the mother and even though the Department has never been involved with X the father is quite fixated on this idea that the mother needs to admit her responsibility for what happened with Y.
I do not consider that what happened with Y is relevant. X is a different child; she was born later. The mother has been cooperative with all the help that she has been offered since X was born. She has voluntarily done a number of parenting courses.
X has been attending day-care since July 2015 when she was two years and four months old. The day-care centre noted among other things that the mother was easy to communicate with and that X was being properly looked after. The family consultant said as follows:
The mother and subject child were involved with IFS from 9^th April 2013 till 9^th April 2014. No issues of concern relating to the mother’s parenting were identified by the workers during this time period. The notes indicate that changes were made by the mother in relation to the main issues identified at referral.
The mother and subject child were involved with Child and Family Nursing Service between 26/3/13 and 12/4/13. No concerns were documented during these visits.
…………………
X presented in neat and tidy clothes with her hair brushed. [6]
[6] Family Report paragraphs 113, 114, 118
The mother is currently involved with Horizons.
A big issue during the trial was the fact that X had a condition called molluscum contagiosum. It is a skin condition which is common in children according to a tendered document and mostly happens in children aged one to four however it can also affect adults.
I have no reason to believe that the mother has not appropriately dealt with that but I will return to that issue in the context of the father’s view about it and answers he gave about it in cross-examination.
The father continued to allege until the end of the trial, because he referred to it in closing submissions, that the mother had physically harmed the child. He said as follows in his affidavit:
Ms Abrahams and Ms C are violent people generally and literally.[7]
I know this as it is well documented and from expressions from her family members and what I have learnt from face book. Also from X who has told me;
[7] Paragraph 12 of the father’s affidavit.
a) Mummy smashed me in the eye and the side of the face;
b) Mummy holds me up by my wrists whilst hitting me on the back of my legs with her open hand.[8]
I did not see X for twelve days in November 2014 and through my investigations I have been able to work out that X was injured by either Ms C or Ms Abrahams, deliberately, I assume.[9]
They say she fell in the bathroom, but it could be deliberate violence. No medical evidence being shown to me is why I have suspicions.[10]
[8] Paragraph 13 of the father’s affidavit.
[9] Paragraph 16 of the father’s affidavit.
[10] Paragraph 17 of the father’s affidavit.
The father tendered some photographs during final submissions which he said showed concerning injuries.
I observed to the father at the time that I did not consider that the photographs showed concerning injuries, rather they seemed to show normal childhood injuries.
There is nothing in the evidence to suggest to me that the mother has deliberately harmed X.
The father has given contradictory evidence at various times about the mother’s parenting capacity. He told the family consultant that the mother and child had a strong bond and that the mother was looking after the child well at the moment,[11] yet he raised concerns in his trial affidavit about her treatment of the child and in answer to a question in cross-examination he said:
[11] Paragraph 29 of the Family Report.
I know X isn’t safe; it’s well documented.
I do not accept that X is not safe with the mother.
The mother does have her own issues. She candidly admitted that to the family consultant and the family consultant described the mother as “loud and disinhibited but friendly”.
The father has decided that the mother has mental health issues. He said as follows in his affidavit under the heading “Ms Abrahams' Mental Health”:
I have lots of medical research experience –
I pause to add the father indicated in cross-examination that he had been reading or had read “Grey’s Anatomy”.
I did medical research with regard to my mum and her problems. I have a very high IQ; although it’s not quantified many people tell me how bright I am. I have also, through my research, realised how intelligent I am as a (occupation omitted).[12]
[12] Paragraph 25 of the father’s affidavit.
The father went on to say:
I have formed the view that Ms Abrahams suffers from substantial psychological problem involving dissociation. These problems come from Ms C.[13]
She also demonstrates psychotic reactions to the medical questions. Also Ms Abrahams diverts prior to answering. This is part of dissociation and being in denial.[14]
[13] Paragraph 26 of the father’s affidavit.
[14] Paragraph 28 of the father’s affidavit.
These paragraphs feed into concerns about the father’s mental health as much as anything else. I do not accept that there is any evidence that the mother has mental health issues. There is also no evidence that she has problems with drug use or alcohol consumption.
The father is extremely concerned about the maternal step-grandfather who he refers to as a “convicted sex paedophile”. He is right to be concerned about him because on 9 April 2010 he was convicted of disseminating child pornography and producing, disseminating or possessing child pornography and received a 12 months suspended sentence on one charge and a $2000 fine and a bond on the other. Until recently, and I have not formally told otherwise, he was living with the maternal grandmother.
The father is right to be concerned about X being brought into contact with the step-grandfather but the mother’s evidence was that she has not been and I have no reason to disbelieve that.
It went further than that with the father though. He raised a concern that X may have been sexually abused and in his affidavit he said as follows:
I do not know if X has been abused by him. There is one thing that created suspicion with her using a doll to show that she had been touched by a man in the private areas. X insists on creating a bubble situation by using an exercise ball to protect her. This means, in my view, that she has been sexually abused. Also, another thing proving is that she wants her nine bubba toys protected.
I do not know exactly what those last two comments are supposed to mean but there is no evidence that this child has been sexually abused.
In broad general terms I am satisfied that the mother is doing her absolute and utmost best to give her daughter a good upbringing and is looking after her well.

The father has no other children. He has no experience parenting a child day in and day out and there is nothing on the evidence to suggest that he could parent X on a full-time basis.
The evidence about some of the father’s utterances if nothing else raise a considerable concern about whether he could deal rationally with schools and doctors.
The father’s affidavit demonstrated that he had many odd ideas and some paranoia. Paranoia is evident in the paragraph where he talks about X being in hospital for tonsils. It appears from his evidence, although it is hard to be sure, that he was informed about that and told that he could see her in hospital but he said that he was suspicious that the mother was trying to lure him to the hospital and set a trap for him to get him breached. Then he said that X later told him that she wasn’t even sick or at the hospital and he went on to say:

I’m unsure whether Ms Abrahams has contacts in the hospital and was using them to trap me or whether X is wrong and she was really there. One or other is the case.

That demonstrates a concerning level of paranoia.
I mentioned earlier that X had a common childhood skin infection called molluscum contagiosum and the father says this about it in his affidavit:

X has a condition that causes warts to grow on her leg, abdomen, face and elbow. She told us –

I think he must mean him and Ms L
that Ms Abrahams had been keeping chickens in the bathroom and that the chickens had died and that Ms Abrahams had a funeral burying the chickens in the backyard. I believe X contracted molluscum contagiosum from the dead chickens. It just makes sense.[16]
[16] Paragraph 2(g) of the father’s affidavit.

The father was challenged in cross-examination about his belief that this had caused the skin infection and he said he believed that was the case because another name for the disease was “bath sores” and he repeated that a couple of times.
He was then asked again about the chickens and he responded:
There could be rabies; there could be anything.
The father just would not let go of the idea about the chickens. In the end when he was challenged about whether they could have caused the skin infection he said it was never confirmed that there wasn’t a connection.
The father insisted the mother had told X to wipe her hands on his towels and put her hands in his mouth so he would catch the infection.
There is no foundation in fact or medical evidence for the assertion about the chickens. The father’s belief about it raises a considerable concern and the fact that he formed the view that the mother told this little child to wipe her hands on his towels and put her hands in his mouth is another example of possible paranoia.
Another concern about the father, which again demonstrates considerable paranoia, is that the father ran a case that the mother and maternal grandmother had made death threats to him and Ms L.
He relied first of all on a Facebook page produced by the maternal grandmother. As soon as I read the words something clicked in my brain and I realised the words were from the song “Hallelujah” and we had a discussion about that during the trial. However the father somehow believed that the words, involving a threat to shoot someone, were directed to him. There was no evidence to confirm that was the case.
The father also saw a picture of an injured dog which had been placed on Facebook and decided that this was a threat to him because he had a dog.
The father was cross-examined about his belief that the mother and maternal grandmother were making death threats and he went further in cross-examination. He told the court that he believed that the mother and maternal grandmother were trying to kill him. When he was asked how, he said “most likely with a shotgun” and he said the maternal grandmother was teaching the mother to use a shotgun. That was followed by some odd comments about the mother using people as hosts.
That evidence by the father raised considerable concern in the mind of the court and in the minds of everyone except the father about the state of his mental health.
The father has never been diagnosed as suffering from any mental health condition. The mother said that she believed he was a narcissist. It is not an incredible assertion given the paragraph I read out about him believing that he has a very high IQ although it is not quantified and etcetera but there is no independent evidence to confirm it. However the evidence of paranoia, the odd beliefs and that paragraph about his medical research experience gave rise to considerable concern in the mind of the court about the father’s mental health.
That was the reason why the psychiatric report was commissioned. However it ultimately came down to the psychiatrist seeing the father and seeing how he presented and spoke. The father’s trial affidavit was unfortunately not sent to the psychiatrist so the report which came back gave the father a clean bill of psychiatric health.
The father made other concerning sweeping statements during the trial for example that the mother was brainwashing the child against society generally. There was also the following in his affidavit which I referred to earlier:
Ms Abrahams implicates friends. They use people as a host to spread the poisonous beliefs and derogatory and delusional belief of reality. My own common sense allows me to see this.[17]
[17] Father’s affidavit paragraph 25
I am concerned about the state of the father’s mental health but I cannot make any definitive findings about it because the psychiatric report went awry.
The family report writer referred to the father’s patronising attitude to the mother and about exchanges in the communication book where the father was attempting to teach the mother things and paragraph (25) of the father’s affidavit sits comfortably with that concern.
I have real concerns about the father’s mental health, about the validity of various conclusions he draws and about what that might mean for X if she spent any significant amount of time with him. It is hard enough as an adult to sit and hear those things and try and make sense of them but it would be significantly confusing for a small child.
Historically the father used cannabis. However he told the family consultant that he had given it up in early 2014 and there was no evidence that he currently used cannabis.
The father said that he only used alcohol socially and I cannot make any findings on the state of the evidence before me that the father has a problem with alcohol.
A final issue in relation to the father which troubled the Independent Children’s Lawyer and the mother’s counsel was that the mother reported that sometime in 2016 X told her that the father “intended to take her far away and kill us.” The mother was concerned and she went to the police.
The child was only three or four when that happened. I cannot be sure that what the child repeated exactly what the father said or that what she told the mother was exactly what the mother reported to the police, not because I think the mother would have misreported it but because of the old “Chinese whispers” thing where somebody says something and the next person says it a little bit differently and things rapidly grow out of proportion or become something different. There is nothing in the evidence available to me to suggest that the father is someone who might harm the child.
Therefore despite the submissions by the Independent Children’s Lawyer and the mother’s counsel I am not satisfied that I can make a finding that the father poses a risk of harm in terms of abducting or killing the child.
I must consider the child’s maturity, sex and background and any matters particular to the child.
X was diagnosed with that skin condition but I have already discussed that at length.
I have to take account of the child’s Aboriginality.
The mother identifies as Aboriginal through the maternal grandmother. It is very important to her and she is very proud of that connection as is the maternal grandmother.
The mother said that Y and X attend NAIDOC functions. X will have plenty of opportunity to do that in the care of the mother. There was no evidence however that the father had a poor belief about Aboriginal people and this case does not turn on the fact that through the mother X is an aboriginal child.
I must consider any family violence.
The mother alleged some stalking and harassment by Ms L. She alleged Ms L had called her a “dead bitch”, tailgated her car and taken photographs of her and the maternal grandmother.
Wherever the truth lies about that however the father’s relationship with Ms L has ended.
The father alleged that the mother had tried to intimidate him and Ms L at changeovers. He said that she came up close and once made a gesture of stabbing him in the kidneys and that she shouted and blocked the door.
The mother said she did not shout as such rather she had ADHD and deafness and spoke loudly.
On any view of the evidence there has been a lot of conflict at changeovers and I will refer to that later on but I cannot make a finding that family violence has occurred between the mother and the father.
The mother and the maternal grandmother have convictions for resisting arrest and offences of that nature but they occurred around the time Y was removed in 2008 and there was a lot of angst and upset at that time.
The father alleged that the mother and maternal grandmother had made threats to kill him. I do not accept that and it is regrettable that the father continues to believe it. When he was cross‑examined about whether he believed that the mother was trying to kill him he said, “Given the chance, yes.” It is an example of an irrational belief. I do not accept that the mother or maternal grandmother have made death threats to the father.
I must consider any family violence orders.
There have been applications between the parties for ADVOs. Those applications went away with undertakings. Ms L had a short lived ADVO against the father but Ms L is no longer involved with the father.
I cannot draw any conclusions from the fact that there have been ADVO applications involving the parents save that they are a symptom of the extremely poor relationship between the parties.
I must consider whether it is preferable to make the order least likely to lead to further proceedings
There is a risk of further proceedings if I order that time between the father and the child resume because of the father’s odd beliefs including his belief that the mother is harming the child and because of concerns about his mental health.
An order for no time might be the order least likely to lead to further proceedings but it does not necessarily mean there will be no further proceedings. The father might gather some further evidence to establish that he is not a risk to the child and then he might bring the matter back to Court.
I must consider any other relevant matter.
A significant relevant matter is that the relationship between the parents is extremely poor. The family consultant identified high conflict and poor communication between the parties as an issue in March 2015 and nothing has changed. Both parties gave evidence about clashes at changeovers inside the police station.
The father is deeply distrustful of the mother and believes she is trying to trap him.
The family consultant noted that the father had misused the communication book to lecture the mother and to try to get her to accept responsibility for Y being taken away from her. She said as follows:
The communication book showed the mother’s attempt to engage with the father around the subject to the child and her needs. The father does respond to the mother but also attempts to “teach her” about her parenting by referencing the mother’s past issues with parenting. This patronising behaviour by the father has a detrimental purpose and could have a negative impact on the child.
The family consultant set out at length the possible detrimental impact on the child of being exposed to parental conflict. She talked about adverse consequences to her emotional and cognitive development and noted that depression, anxiety and temperament problems are not uncommonly seen in children who are exposed to that conflict.
The family consultant was also concerned about the father’s communication style. She referred to his view that he was the more knowledgeable of the two parents and that he told her that he frequently asked the mother a question and then repeated it three times hoping that the mother would provide an answer and that would take responsibility.
The family consultant added:
The father had no awareness of the negativity of his actions and how these actions then interfere with the parents being productive and cooperative parents of the subject child.
I cannot find that one parent is solely responsible for the poor communication between the parents. It might be that the mother sometimes reacts in ways that she should not. However there is clear evidence that the father’s communication style and his belief that he knows more than the mother, that he needs to teach her, is an issue hindering good communication between the parents and there is absolutely no doubt that the parents’ communication is woeful.
I now return to the primary considerations and they are the benefit to the child of having a meaningful relationship with both of her parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
Children normally benefit from having two parents in their lives because parents are different. They have usually had different upbringings and they have different interests and different beliefs. Children often take after one parent in some ways. Sometimes they look like a parent; they have the same colour eyes or the same walk. It is important if possible for children to have a relationship with both of their parents. That is why the benefit to the child of having a meaningful relationship with both of their parents is one of the primary considerations and if it is possible for the Court to make orders to ensure that that situation exists then that is what the Court is inclined to do.
In this particular case however it is open to question whether the father would be able to have a meaningful relationship with the child, that is, a relationship which is significant, valuable and important to her[18] if I made an order that put them back in contact.
[18] Mazorski & Albright [2007] FamCA 520
I am extremely concerned about the numerous very odd things the father said during cross‑examination. I am concerned about his belief, without any foundation, that his child has been physically harmed by the mother and that she has been sexually abused. I am concerned about his odd beliefs about the things like the chickens. I have serious concerns about whether X would in fact benefit from spending regular unsupervised time with the father or whether she would simply become confused.
The other issue is that the father has demonstrated a very superior, teaching attitude toward the mother, an attitude that he knows everything and he is right. He does not come across as a parent who would be able to interact in a meaningful way with the child. The way he has interacted with the mother could end up being the same way that he interacts with X.
One aspect of children having a meaningful relationship with both of their parents is that the Court must to consider the issue of whether one parent is trying to prevent the child having a relationship with the other parent.
It is the father’s case that the mother has done that in relation to him and the family report writer expressed a concern about the mother’s capacity to promote a relationship between the child and the father.
On the state of the evidence, I do not agree with the family consultant that there is reason to be concerned about the mother’s attitude to the child having a relationship with the father.
The father complained that there were occasions when he did not see the child pursuant to the Court orders and was not provided with medical certificates. That may have happened but in the main the mother complied with the orders. She voluntarily arranged for the father to see the child immediately after the parties ended their relationship and she only stopped doing that after the conflict between the parents became unmanageable. After the Court proceedings commenced the mother consented to orders about the father spending time with the child.
There is no evidence of the mother denigrating the father to X. X ran to the father excitedly at the family report interviews and the mother told the family report writer that the child loved her father. That is not the hallmark of a mother wanting for no good reason to prevent a father having a relationship with the child.
At the beginning of the trial the mother was proposing a continuation of time and it was only after the evidence in the father’s affidavit and cross‑examination emerged that the mother took a different position.
In relation to the second primary consideration, I do not accept that the child is at risk of abuse, neglect or family violence in the care of the mother. The father is concerned about the maternal step-grandfather but the mother consents to an order that she not be brought into contact with him and I have no reason to believe that order will not be complied with.
The mother has acted out on occasions, as has the maternal grandmother. However that occurred when Y was taken by the Department and it must have been very distressing to have a five months old child taken by the Department.
I do not accept that the mother or the maternal grandmother have threatened to kill the father and I do not consider that X would be at risk of abuse, neglect or family violence in the mother’s separate care.
The mother has made some allegations about the father’s behaviour but it was mainly in the context of conflict at changeover. I cannot make a finding that it can be characterised as any sort of family violence.
I have concern about the father’s parenting capacity but I cannot make a finding that X would be at risk of being subjected to or exposed to abuse, neglect or family violence in the father’s care.

Parental Responsibility

Pursuant to s.61DA of the Family Law Act I must apply a presumption that the parents should have equal shared parental responsibility for the child absent of finding that one of the parents has committed acts of family violence or abused the child.
However neither parent in this case wanted equal shared parental responsibility, they both wanted sole and while the presumption applies I could not possibly consider making an order for equal shared parental responsibility even if one of the parents had asked for it.
The parents have no capacity to productively communicate. The father has very odd ideas and an inflated view of his own capacity to make the right decisions about the child. The content of his affidavit raises concerns that he might make judgments based on irrelevant or even irrational considerations. There have been ADVO proceedings between the parties. They have not even been able to manage changeovers inside a police station peaceably. It is clear enough, and the mother’s counsel said this during submissions and I agree with it, that the father has no respect for the mother and will not let go of the past.
The only appropriate order is an order that the mother have sole parental responsibility for the child. She liaises appropriately with support people. She accepted a recommendation that X attend day care. She is making good decisions for the child. The child is developing well and I intend to order that the mother has sole parental responsibility for her.

The recommendations in the Family Report

The family consultant unsurprisingly recommended that X live with the mother. There is no any other outcome which could be considered. However she went on to say as follows:
The child has spent three overnights with the father in the past three months. She was observed to have a positive secondary attachment to the father and it would be beneficial for her to nurture this secondary attachment. Unless there is an immediate and significant risk of harm to the subject child in the care of the mother, the child should live with the mother.

The family consultant noted that the father had minimal parenting skills and had not spent regular and consistent time with the child but she recommended that the child’s time with the father increase and her eventual recommendation was that:
…the time with the father gradually increase to spending regular and substantial time with the subject child.[19]
[19] Paragraph 152 of the Family Report.
She did not go into anything more precise.
However embedded within the report are concerns about the father in terms of his parenting capacity and his attitude to the mother as demonstrated by some of the things in the communication book and before the family consultant went into the witness box she was asked to read the father’s September 2016 affidavit. She said that having read that she did not adhere to the recommendations in the report.
The family consultant had identified that the father had grandiose views and had engaged in domineering behaviour and she said that if that was still the case two years after she prepared her report then nothing was going to change in the future.

Conclusion

These matters are never easy. In a perfect world further information would have been available in this case; an updated family report perhaps but at least a balanced psychiatric assessment of the father. However partly due to resources and partly due to things going awry, these are not available and the parties are legally aided and they cannot pay for their own reports.
I must do what I can with the evidence that I have, and what I have is this.
The father raised concerns about the mother’s care of the child but the independent evidence, sourced partly by the Independent Children’s Lawyer, suggested that the mother’s care of the child was not an issue. The mother has had difficulties in her life. She has had some personal difficulties which she freely acknowledges. She was in a violent relationship with her previous partner. Her older child is in the long‑term care of the Minister and her financial circumstances are poor.
However the mother does not use drugs or alcohol. There is no evidence that she has mental health issues. She has accepted support since prior to X’s birth. She adhered to the order that the child attend day care three days a week even when it was financially difficult for her to do so. She has always cooperated in Court proceedings. She has attended every Court event. She has attended Legal Aid mediations.
The day care reports about the child are positive. There is no sign of the child being neglected and I am satisfied the mother has appropriately attended to the child’s medical needs.
Finally, X is primarily attached to the mother and she is still only four years old. There is no evidence that the mother has deliberately placed the child at risk with the maternal step-grandfather and the Department has never seen the need to step in in respect of this child.
I could not possibly consider making an order significantly altering the child’s living arrangements. It would be extremely distressing for the child and she would not understand why it was being done.
In addition, I have considerable concern about the father’s capacity to care for the child. He has never been the primary carer of any child. He has very odd ideas. He clashes with the mother. He had a clash with his recent girlfriend. His odd ideas might well mean that he would not be able to interact in a meaningful way with schools or support services.
I could not possibly consider changing the child’s residence. There is no reason for it and it would have an adverse impact on the child.
I also could not possibly consider an order for shared care given the relationship between the parents. For a shared care arrangement to work people have to get on really well. They have to respect each other. These parents have no capacity at all to do that. The only order I could possibly make is that the child lives with the mother.
The difficult issue in the case is the child’s time with the father.
The father has not spent time with the child for about six months. At the beginning of the trial the mother was willing to consent to orders that he spend some limited periods of time with her but she now seeks a no time order and I have to seriously consider whether I should make an order that the child resumes spending unsupervised time with the father.
The father provided limited information about himself and his living circumstances. He has a poor and negative attitude to the mother. He believes she is trying to kill him, he has no respect of her as a parent and he has very odd ideas about how she might be caring for the child. I am concerned about the impact on the child of spending regular time with the father.
On top of that the father has extremely odd ideas generally and I am concerned about how the child is going to process the things he says if she spends regular time with him. It is hard enough as an adult sitting here listening to those odd ideas about hosts and people trying to kill the father and people trying to trap him. I do not know how a four year old child can be expected to process that kind of talk and those kinds of beliefs. It could cause considerable difficulty for her.
The only thing I could possibly consider doing, because it is a sad thing for a child to have no contact at all with a parent, is to make an order for supervised time, but there is no indication that would work in this case.
Organisations like Relationships Australia which run reasonably priced contact centres do not provide supervision once final orders are made. The father is in receipt of a Disability Support Pension. He is not someone who can pay for the services of Rekonnect or Big Brown House so a private supervisor is not available in this case.
In any event it is well accepted that orders for long‑term supervision are frequently unsuccessful and break down. Children get sick of going to a supervised location or supervisors become unavailable. Often the court only orders supervised time if there is some light at the end of the tunnel and it is likely to be able to order unsupervised time in the future.
I cannot think of a way in which I can make orders for the child to safely spend time with the father. She is four years old. Given the father’s odd ideas she is likely to struggle to process the things he says and the way he behaves. His attitude to the mother is exceptionally poor which will cause difficulties for the child. I could not consider ordering anything other than supervised time and there is simply no viable option for long‑term supervision.
Sometimes if there are family members around an order can be made for a family member to supervise the time but in this case I do not have that option. The father’s brother is schizophrenic and his mother suffers from serious mental health issues. There is just no option that I can consider in terms of allowing this child to spend some time with the father.
However I am not entirely comfortable with the idea of making a no time order and I intend to make an order which does not entirely cut the father out of X’s life.
I am going to order that the mother provide the father with some information about the child three times a year which is to include some photographs of the child and once the child commences school, copies of school reports and perhaps some drawings; that kind of thing.
I am going to order that the child shall spend time with the father as determined by the mother, noting that the mother’s decision is final and the mother may require the time to be supervised. That allows a bit of flexibility, a bit of leeway if the mother becomes satisfied at some point that some short periods of time can meaningfully occur. It does not entirely cut the father out of the child’s life.

I certify that the preceding two hundred and thirty two (232) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 15 August 2017

[15] Paragraph 4 of the father’s affidavit.

[2017] FCCA 1913

14 June 2017

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