Nield and Silburn
[2017] FCCA 1097
•12 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NIELD & SILBURN | [2017] FCCA 1097 |
| Catchwords: FAMILY LAW – Parenting – child aged 9 – dispute about the time the child should spend with the father – where the child has historically spent a good deal of time with the father and has a good relationship with him but has spent limited time with him since the father was charged with reckless wounding two years ago – where the father has a number of convictions for offences of violence spanning 20 years – where the father seeks an order for time each alternate weekend and for half of the school holidays – where the father says that he is a changed man but where the court cannot place weight on this assertion – where there are other issues of concern about the father’s household – order made for the child to spend unsupervised time with the father each alternate Sunday. |
| Legislation: Family Law Act 1975, ss.60CC, 61DA Cases cited: |
| Applicant: | MR NIELD |
| Respondent: | MS SILBURN |
| File Number: | NCC 3326 of 2011 |
| Judgment of: | Judge Terry |
| Hearing dates: | 29, 30 and 31 March 2017 |
| Date of Last Submission: | 31 March 2017 |
| Delivered at: | Newcastle |
| Delivered on: | 12 April 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mrs Kearney |
| Solicitors for the Applicant: | Craney Family Solicitors |
| Counsel for the Respondent: | Mr Kelly |
| Solicitors for the Respondent: | Hunter Legal and Conveyancing |
| Counsel for the Independent Children’s Lawyer: | Mr Lloyd |
| Solicitors for the Independent Children’s Lawyer: | Jennifer Blundell & Associates |
ORDERS
All existing parenting orders concerning the child X born (omitted) 2008 (“the child”) are discharged.
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:
(a)each alternate Sunday from 10.00am to 5.00pm; and
(b)at such additional or alternate time as may be agreed between the mother and the father NOTING THAT the mother’s decision is final.
If Mother’s Day falls on a day when the child would not otherwise be with the mother the weekends shall be swapped and the child shall spend the Mother’s Day weekend with the mother and the following Sunday with the father.
If Father’s Day falls on a day when the child would not otherwise be with the father the weekends shall be swapped and the child shall spend Father’s Day with the father and the following Sunday with the mother.
Notwithstanding Order 4(a) upon the mother giving the father 28 days notice she may take the child away for 21 days during the Christmas School Holiday period. The father’s time will be suspended during that period and the father shall spend time with the child on two (2) consecutive Sundays upon the child’s return.
The father shall also spend time with the child:
(a)In the 2017 Christmas period from 9.00am until 2.00pm on Christmas Day.
(b)In the 2018 Christmas period from 10.00am until 5.00pm on Christmas Eve.
(c)In the 2019 Christmas period and each alternate year thereafter from 5.00pm on Christmas Eve until 2.00pm on Christmas Day.
(d)In the 2019/2020 Christmas period and each alternate year thereafter from 5.00pm on Christmas Day until 5.00pm on Boxing Day.
Unless otherwise agreed in writing changeover shall occur at Hungry Jacks at (omitted) and the parties agree that they shall not approach each other at the time of changeover.
Each party is restrained and an injunction is granted restraining them from denigrating the other party or permitting any other person to do so in the presence or hearing of the child or on social media including Facebook.
Each party shall be entitled to obtain from the children’s school(s) copies of newsletters, reports, order forms for school photographs and other information normally provided to parents and each party shall be entitled to attend any school events normally attended by parents.
Each party shall promptly notify the other if the child is involved in an accident or medical emergency requiring attendance at hospital or is diagnosed as suffering from a serious illness.
Each party is restrained and an injunction is granted restraining them from physically disciplining the child or from allowing any other person to do so.
The Independent Children’s Lawyer’s application for costs is dismissed
IT IS NOTED that publication of this judgment under the pseudonym Nield & Silburn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 3326 of 2011
| MR NIELD |
Applicant
And
| MS SILBURN |
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.
This matter concerns X, 9, and it began as a contested residence case. However after the mother was cross-examined on the second day of the hearing the father, to use his counsel’s words, conceded residence and conceded parental responsibility and the issue became the time X should spend with the father.
Currently X is spending time with the father from 10.00 am to 4.00 pm each alternate Sunday. The father seeks orders that X spend time with him each alternate weekend from after school on Friday until before school on Monday during school terms and for half of the school holidays.
The mother, with considerable reluctance, proposed that X spend time with the father every third Sunday from 10.00am to 4.00 pm. Her preference would be for the father to fade out of X’s life.
The father has five convictions for offences of violence, the first being for assault in 1997 and the last being for reckless wounding following an incident in October 2014 during which he stabbed the father of the mother’s older children in the shoulder with a hunting knife.
The mother is afraid of the father. She distrusts him and perceives him to be an extremely poor role model for X. There has been some family violence in the father’s relationship with his current wife and the mother is concerned about that and about what might happen in the future. She is also concerned that the father’s 14 year old son A, who lives with the father, poses a risk of harm to X and may expose him to violent video games and model aggressive dysregulated behaviour to him.
X has been diagnosed with ADHD and ODD and the mother considers it vital that he not be exposed to any violent or aggressive behaviour. It was her case that X’s behaviour had deteriorated after he commenced spending unsupervised time with the father in the second half of 2016.
I will have to make findings in due course about whether the mother’s fears are valid or overblown but a concern for the Court which emerged during the hearing was that the father has no respect for the mother as a parent.
The father said that he was in a settled period of his life and that he recognised the error of his ways and would not reoffend. He denied that he or anyone in his household posed a risk of harm to X. He said that X and A had historically had a good relationship and continued to do so and that it was important that X spend a meaningful amount of time in his household.
The evidence
The evidence in the father’s case was given by the father and his wife Ms A and in the mother’s case by herself.
A family report was prepared by Ms J, a family consultant, in May 2016. Ms J also prepared a family report in 2012 during an earlier round of proceedings between the parents and an 11F memorandum on 21 May 2015 after conducting a child inclusive child dispute conference.
The 11F Memorandum was referred to during the cross-examination of Ms J. It should have been marked as an exhibit and was not and I am now going to mark it as an exhibit.
All of the witnesses were cross-examined.
I have a number of concerns about the father’s evidence.
The father showed very poor judgment in running a residence case when there were so many historical issues to do with his violence, when X had been in the mother’s care for two and a half years without incident and when X had repeatedly said that he wanted to remain living with his mother. As a result of that and as a result of some other matters, I question the father’s ability to see and accept the reality of situations.
The father insisted to the family report writer in May 2016 that X wanted to live with him and he continued say that at trial despite two separate contrary reports about the child’s views and despite the child saying to him at the family report interviews in May 2016, “Life is pretty fun with Mum”.
The father’s evidence about his violence is of concern. He gave a sanitised version in his affidavit about what happened when Mr G, the father of the mother’s older children, was wounded.
The father denied that in May 2015 the paternal grandfather assaulted the mother, saying that they just bumped heads. The mother’s older children reported it differently and the paternal grandfather was charged with assault arising out of the incident and did not give evidence at the hearing before me.
The father’s description of A compared to the way A presented at both family report interviews suggests that the father’s reports can be very inaccurate. He is not necessarily lying I might add. There just might be an issue with him seeing things the way they are.
I also have some concerns about the evidence of Ms A.
In response to questions from the family consultant, Ms A denied substance abuse, denied having a criminal history and said that she had had no involvement with the Department of Family and Community Services (the Department) in relation to her children.
I cannot comment on whether she has a criminal history - there was no evidence about that before me - but she admitted during the trial that in 2014 she was using ice and it is very unlikely that she has never had any involvement with the Department given the evidence about what happened at the caravan park in June 2014. There is reference in the police report to the police being concerned about her children and it seems to be inevitable that a report would have been made to the Department.
Neither Ms A nor the father revealed anything in their affidavits about past difficulties in their relationship. They revealed nothing about the occasion when the police were called to their home in April 2014. They did not reveal Ms A’s past use of ice. The father did not reveal that X had had difficulties at school in early 2014 or that the Department had been very concerned about his care of A and X in early 2014.
The father provided a sanitised version of events in his trial affidavit. The omissions from his affidavit and the fact that his view of X’s happiness in the mother’s care is at odds with the evidence makes me very wary about accepting other assertions he makes, such that he has turned a corner in regard to aggressive offending, that A’s behaviour is more settled and that Ms A is coping well with the family’s situation and would cope well if X spent extensive time in their home.
There were not the same difficulties with the mother’s evidence. Her evidence was not extensive about some things but she did reveal that there had been recent difficulties with X at school and I do not have the same concerns about there being a disjunct between her evidence and reality.
I can never be sure in a case such as this that everybody is telling me the whole truth. It is common for people to gloss over problems and fail to tell the Court things which do not favour their case and even to deliberately mislead the Court and sometimes to outright lie. I am sure they justify that to themselves on the basis that they are good people and need not tell the Court about something because really it does not matter, so I can never be sure if people are telling me the truth ever. There could be some of that by both parties in this case but overall, I was much more troubled by the father’s evidence than I was by the mother’s.
Background
The mother and father commenced a relationship in 2007 when they were about 26 and 29 and they finally separated either in August 2010 according to the first family report or June 2011 according to the father’s trial affidavit, after a volatile on and off relationship.
The parties have one child, X, who was born on (omitted) 2008.
The mother has two older children, B born on (omitted) 2004, and C born on (omitted) 2005, and the father has an older child A born on (omitted) 2002.
The father said that when the parties separated X was living with him but in December 2011, the mother retained X and the father commenced court proceedings.
Thereafter, X lived with the mother and spent regular time with the father. The parties told the family consultant at the time of preparation of the first family report on 1 February 2012 that X was spending four nights a fortnight with the father according to court orders and more frequently by agreement.
The family report was released in May 2012 and in the report the family consultant expressed concern about the father’s assault convictions which included a conviction for assaulting B in 2008 and a conviction for assaulting A’s stepfather in 2011. She was also concerned about the father’s history of cannabis use and depression.
She noted that the father had the full time care of A who had been diagnosed with Asperger’s and ADHD and was medicated and was having problems at school and socially. The family consultant said that X and A both reported that the father allowed them to play violent games on PlayStation and that A watched a lot of TV.
The mother told the family report writer that she had social phobia and anxiety.
The family consultant expressed concern about A’s presentation but did not make a recommendation one way or the other about parenting arrangements for X and on 4 February 2014, the parties reached agreement and orders were made by consent for X to live with the father and spend time with the mother.
The father was then living at (omitted) and he enrolled X to commence kindergarten at (omitted) Primary School at the start of 2014.
The father had been in a relationship with Ms A, his current wife, from about 2011 or 2012, and for a brief period in the first part of 2014 she and her children lived with him at (omitted).
In April 2014 after an altercation which resulted in the police being called, Ms A and her children moved to a caravan park but the father and Ms A continued their relationship.
In October 2014 while X and A were both inside the house, the father became embroiled in a verbal argument with Mr G, the father of B and C, and when Mr Nield drove to his house he grabbed a hunting knife and stabbed Mr G in the shoulder.
The father disposed of the knife and sheath in bushland but the police were called and he was quickly arrested and refused bail.
Shortly after this X came into the mother’s care. The paternal grandfather tried to forcibly take X from her and I am satisfied, because I accept the mother’s evidence about this which is corroborated by the children, that in the process he assaulted the mother. Nevertheless the mother retained X and X has lived with her ever since.
The father pleaded guilty to reckless wounding and was given a 12 month intensive corrective order.
In February 2015 following the criminal matter being finalised, the father filed an application in this court seeking to have X returned to his care.
The mother opposed that application.
In May 2015 a child inclusive child dispute conference was conducted. X was very clear in his view that he did not want to return to live with the father; he said that he hated him.
On 10 July 2015 an order was made for the father to spend supervised time with X for two hours per week at a play centre. That occurred but the father continued to maintain that X should return to live with him and a family report was ordered and was prepared in May 2016.
During the report interviews X was once again very clear about what he wanted and the family report writer recommended that X continue to live with the mother and spend time with the father on alternate weekends and during school holidays.
The father did not accept the recommendation that X live with the mother and the mother did not accept the recommendation about the amount of time X should spend with the father. As a result the matter was listed for trial. It was not reached on the first date at the end of last year but it proceeded to a hearing in March 2017.
The parties’ current circumstances
The father
In the latter half of 2014 Ms A, fell pregnant to the father and their son D was born on (omitted) 2015.
At some point in early 2015 the father and Ms A resumed living together and they have since married.
The father lives in rented accommodation in (omitted) with Ms A, D, Ms A’s two children, E, 8, and F, 5, and A who is now 14.
A attends (omitted) High School in (omitted) and E and F attend (omitted) School.
The father has recently commenced employment as a (occupation omitted) in (omitted). He works day and night shifts in alternating weeks.
The father has an extensive criminal record and it is important that the details of it be recorded in the judgment.
In 1997 he was convicted of cultivating a prohibited plant and fined $750.00 and given a bond. On 3 September 1997 he was charged with common assault and fined $500.00. On 28 May 1998 he was charged with common assault and fined $500.00 and may have been placed on a 12 month bond as well.
On 22 January 2008 the father was convicted of assault occasioning actual bodily harm, which was the assault on B who had a bruise as a result of the assault. He was given an 18 month supervised bond and ordered to do anger management counselling.
On 15 July 2011 the father was charged with common assault and fined $500.00 and on 27 December 2011 he was charged with contravening an apprehended domestic violence order. That charge was dismissed without conviction pursuant to s.10.
On 9 January 2013 the father was convicted of assault occasioning actual bodily harm and destroy and damage property and was fined $750.00.
On 9 October 2014 the father was charged with recklessly wounding Mr G. He was convicted and given a 10 month Intensive Corrective Order which ran from 17 December 2014 to 16 October 2015.
Ms A is 37. In April 2014 after she ceased living with the father she went to live in a caravan park with her two children. There was an incident at the caravan park in June 2014 which was described in considerable detail during the trial and I am not going to distress Ms A by doing that again but it involved her being injected with drugs and raped.
Around this time Ms A was admitted to (omitted) and was diagnosed as suffering from bipolar disorder. She was prescribed medication and it is her case that the diagnosis and medication have made a huge difference to her and have allowed her to live a much more stable life.
Ms A is studying to be a (occupation omitted).
The mother
The mother lives in (omitted) with X, C and B. She has not re-partnered.
X and C attend (omitted) Primary School and B attends the local high school.
The mother works during school hours.
X’s best interests
Any orders I make about X must be orders determined by treating his best interests as the paramount consideration and s.60CC(2) and (3) of the Family Law Act contain the matters to which I must have regard in order to determine his best interests.
The primary considerations in s. 60CC(2) are the benefit to the child of having a meaningful relationship with each of his parents and the need to protect the child from physical or psychological harm as a result of being subjected to or exposed to abuse, neglect, or family violence.
Pursuant to s.60CC (2A) the Court must give greater weight to the need to protect the child than to the benefit to the child of having a meaningful relationship with both of his parents and I have to consider those matters in the context of the issue which is now before the Court in other words, the issue of the amount of time X should spend with X.
X’s relationship with his father will be quite limited if he only spends time with him every second or third Sunday. It can still be meaningful; it can still be significant, valuable and important to the child[1] but it will be at the lowest end of the scale because the father will not be able to do a range of activities with the child and there are a lot of caring tasks he will not be able to do with him or for him.
[1] Mazorski & Albright (2008) 37FamLR 518
The mother, to her credit, readily recognised that the father had things to offer X. She smiled when she said that they were very similar and shared a love of cars and trucks. I do not consider that the mother would undermine X’s relationship with the father if the child lived primarily with her. I consider that in proposing limited time she is genuinely concerned for his safety.
Another aspect of the meaningful relationship consideration is that it is important that X has a meaningful relationship with the mother and I am concerned that X’s relationship with the mother may be undermined if he spends extensive time in the father’s household.
The father was unable to say anything positive about the mother’s parenting during the trial and this was in stark contrast to what happened when the mother was asked this question.
He was unable to say anything positive about the mother’s parenting despite being given two opportunities to do so and despite the fact his son is a healthy, happy child who has repeatedly told others that he loves his mother.
The best the father was able to come up with when I gave him some examples of what might indicate the mother was properly caring for X was that his hair might need cutting. On his second attempt he said:
I do believe she does have qualities, but they’re impaired by her attitude to me.
I do not share the family report writer’s view that the father has the willingness and ability to facilitate and encourage a close and continuing relationship between X and the mother.
He complied with court orders about X spending time with the mother during the short period that X was in his care pursuant to the first set of final orders but he has a very poor attitude to the mother and while he might have complied with the orders about X spending time with the mother he did not tell her about the child’s medical treatment and did not include her as a parent on the child’s enrolment form at (omitted).
Another concerning piece of evidence was the following in the father’s trial affidavit:
I believe Ms Silburn’s decision to keep X is based purely on the money she can get from having him in her care.[2]
[2] Father’s affidavit paragraph
There is absolutely no foundation for such an assertion.
I am satisfied that the mother has the capacity and the willingness and ability to ensure that X has a meaningful relationship with the father subject to her being satisfied that he is safe and well cared for. I do not consider that the father has that capacity in respect of the mother and as a result I am concerned about making an order that the child spend extensive time with the father.
The second primary consideration is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
There was nothing to suggest that the father would ever deliberately physically harm X but dating back 20 years he has been very reactive and impulsive which has resulted in him committing a number of assaults. The last assault, the wounding of Mr G, occurred while X and A were in the house, so the fact that the father has the immediate care and responsibility for children does not operate as a brake on his behaviour.
The other thing which is gravely concerning in that regard is A’s comments to the family consultant during the second family report interviews. A is the father’s son. He has always lived with the father and in her second report the family consultant said as follows:
A was asked if he is currently enjoying his new home and he said yes because he has a room to himself. He said that when X comes back to live with them then X will share a room with E. A then became angry speaking about the mother in this matter. He said “Ms Silburn’s a big fat liar. I’d like to give her one sucker punch in the face. She took him away when dad was in goal. Me and pop went out there to see Ms Silburn. We had X with us. She took him, I was furious! She lied to the police’s face.”
A said on the day he went with the paternal grandfather to the mother’s home, he became so angry that he went to the paternal grandfather’s car and found a pair of pliers. A reported walking towards the mother and paternal grandfather with the pliers, but the paternal grandfather told him to put them back in the car.[3]
[3] Family Report paragraph 117 & 118
The family consultant also said as follows:
A then said “I just want X back home or I’m gunna take the law into my hands. I’ll be packing mega Nerf guns.” He said that sometimes he becomes so frustrated he wants to “shoot and kill,” but lately he has been attending a youth centre in (omitted) to help him manage those feelings and “it gets my frustration out.” He reported finding the program at the centre very useful and that he has made some friends there as well.[4]
[4] Family Report paragraph 121
The concern raised by all this is that I have a father who has numerous convictions for assault and a father who sometimes reacts impulsively and destructively and then I have a child who has always lived with the father saying these things.
I am very concerned about what X might be exposed to in the father’s home. I do not think that he would harm X but how can I be sure that there will not be another incident in the future where the father gets the wrong end of the stick and impulsively and reactively assaults someone?
The father has been violent to other people besides family members though so I am going to consider this more generally in another section of the judgment.
The mother felt that the father had neglected X’s basic needs when the child lived with him in 2014. She complained about such things as worming, teeth and nutrition.
The evidence about that is too slight to allow me to safely make such a finding. X made a comment to the family consultant in May 2015 about being hungry when with the father and there are a couple of cryptic notes in the GP records but I cannot find on the basis of the evidence that the father neglected X’s basic care in 2014, and he did take X to see a clinical psychologist after he began to have behavioural difficulties at school and that is to his credit.
I have concerns about the father’s care of X as a result of what is in the Department’s notes from early 2014 but I will come back to that when considering the issue of the father’s parenting capacity.
The first of the additional considerations in s. 60CC(3) is any views expressed by the child and any factors such as the child’s maturity or level of understanding which the Court thinks are relevant to the weight it can give to those views.
When the 2012 report was prepared, the family consultant thought that X was too young to express a view but in May 2015 at the child inclusive child dispute conference, when he had been in the mother’s care for six months, he was very clear to say that he did not want to return to live with the father and he did not enjoy it and that the mother took better care of him.
At the family report interviews in May 2016 X again reiterated that he wanted to remain living with his mother. The family consultant said as follows:
X was very forthright in expressing his views. Without being asked, X said he loves living with the mother and does not want to return to live with the father but would like to spend some additional time with him. “Life is much better with mum. Life’s changed, it’s much funner.”
X wanted the Judge to know that he wants to remain living with the mother because she takes better care of him. He would like to spend more time with the father and start to spend time with the extended paternal family.[5]
[5] Family Report paragraphs 71, 79
Some weight should be given to those views because X has consistently expressed a very clear view over a period of time about the outcome he wants.
I must consider the nature of the relationship of the child with each of his parents and any other person including a grandparent or relative of the child.
The father alleged to the family consultant that he was X’s primary attachment figure. There have been periods of time when X has lived primarily with him but the evidence does not support the contention that he is X’s primary attachment figure. In the 2012 report X was said by the family consultant to go equally readily to each parent and he currently strongly wants to be with his mother.
The family consultant observed a positive interaction between X and his mother and maternal siblings at the 2015 report interviews. She said as follows:
In observation between X, the mother and his maternal half-siblings B and C, X was observed to be happy playing Lego and cars on the play mat with the mother. The mother’s friend Mr T was also present, but he remained uninvolved.
B and C interacted with X when invited to. They were happy playing other games, as well as painting and drawing. The atmosphere was very good-humored and X appeared to be enjoying his time with the mother who was sitting on the floor engaged in play. The mother removed her shoes so she could fully participate in activities with X and he had no issue with the mother involving herself in his game.[6]
[6] Family Report paragr5aphs 81 & 82
She also observed a positive interaction between X and the father and paternal relatives and said as follows:
In observation between X and the father, X was observed to run to the father and jump into his arms. The father said “I love you” and returned X's hug with equal vigor. X’s behaviour started to escalate to the point where the father asked X to “slow down.”
X started to ask the father about certain video games, but the father redirected X’s attention to other games in the room. X picked out a pirate game and the father looked at the instructions on how to play. They sat at the table together and the father was happy to follow X’s lead.
The father alleged that A and X were close but this is an example of evidence that I cannot rely on.
The family consultant observed during the 2012 family report interviews that A played on his Xbox and rarely interacted with the other children and A told the family consultant that he wanted X to live with the mother so he could play more games with the father.
X told the family consultant in May 2015 that he did not like A who hurt and choked him. He also told her in May 2016 that A had hurt him.
X was happy enough to see A at the May 2016 interviews but I do not consider the evidence supports a finding that the two boys have a close relationship. It may well be a problematic and difficult relationship.
X spoke very fondly to the family consultant about C and the things he did with C in the mother’s home, and I have no reason to suppose he does not have a good relationship with B. He also spoke very positively about his stepbrother E who is close in age to him, and there was no evidence that he had a difficulty with F or with Ms A.
The father alleged that X was close to the paternal grandfather. The paternal grandfather attended the family report interviews in May 2016 and X was happy to see him but I cannot take that any further.
I must consider the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about the child or to spend time with or communicate with the child.
Each parent has always wanted to be part of X’s life. The mother relinquished him to the father in February 2014, in hindsight a poor decision. She said that she did so because she wanted the conflict to end and that she deeply regretted it now and she certainly acted promptly to retain X after the father was arrested in October 2014 and has consistently maintained since then that X should live with her.
I must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child.
The father is assessed to pay child support. There was no suggestion that he did not pay. The mother is however inevitably the child’s primary financial supporter because it is only recently that the father has gone to work and even if he is reassessed based on his income he has two other children, D and A, so the amount the mother receives may not be huge.
I must consider the likely effect of any change in the child’s circumstances including the likely effect on the child of any separation from either of his parents or any other child or person with whom he or she has been living.
This is a central issue in the case.
The father wants more time with X than he is getting at the moment. He said that such a change would be beneficial for X. He would be able to do more things with him and X would have more time with his siblings and would be able to take a more extensive part in the father’s family life.
The mother said that if X spent more time with the father, this could result in his behaviour deteriorating and her counsel submitted that if I ordered extra time it might impact on the mother’s parenting capacity.
In regard to the latter submission, as I observed to the mother’s counsel at the time there is absolutely no evidence that this would be the case. The mother has suffered from anxiety and depression in the past but she has been dealing well with X’s issues since he commenced living with her in late 2014. She has hung in there in the court proceedings. There was no evidence that she would fall apart if it was ordered that X spend more time with the father than he is at the moment.
I also cannot be sure on the state of the evidence that X’s behaviour would deteriorate if more time was ordered and I will come back to that again later.
I must consider the practical difficulty and expense of the child spending time with and communicating with a parent.
That is not a relevant consideration in this case. The parties live at (omitted) and (omitted); they are not a million miles apart. It is a manageable distance in terms of a spend time with order.
I must consider the capacity of each of the child’s parents and any other person to provide for the needs of the child, including his emotional and intellectual needs.
The family consultant expressed a variety of concerns about the father in the first family report.
One of her concerns was that A was playing too much PlayStation and watching too much TV. The father said at trial that he had been making an effort recently to ensure that there was a mix of healthy outdoor activities with the computer game playing. That may be true; I hope it is but the father was not a wholly reliable witness.
There have historically been issues with the father providing appropriate day to day care for A and X.
One of the documents which was tendered was a risk of harm report made to the Department in March 2014. It must have been made by a mandatory reporter because the notifier refers to things that have been happening at the school and the notifier mentions a range of concerns about the father’s care of both A and X.[7]
[7] Exhibit B
This was at a time when Ms A was living with the father at (omitted) and there were clearly some difficulties going on there because the police were called to the property in April and I will refer to that again in a moment, but there are significant concerns expressed in the mandatory report about the father’s care of the children.
There is reference to A being un-medicated and about the father giving a variety of excuses for this including the dog eating A’s medication.
There is a complaint that the phone often goes unanswered when people try to contact the father about A, that A is tired and complains of having to sleep on the lounge due to father’s new girlfriend’s children sleeping in his bed and that A falls asleep in the classroom during lessons.
It is alleged that food does not satisfy appropriate nutrition and that often breakfast is what A can find for himself. The reporter alleges that the father appears dirty and unkempt and on occasions appears to have just awoken no matter what time of day. A’s behaviours are said to be escalating at school.
Concern is expressed about the way the father presents at the school when he is asked to come and deal with issues to do with A and about him becoming angry when an attempt is made to discuss home routines, and there is a complaint that he would not complete an assessment checklist to take to a paediatrician.
There is also an allegation that when the father is called to collect X from school when he misbehaves he arrives late, yells at X, and will often grab him by the collar or the scruff of his neck, cuff him on the back of the head or grab his ear and escort him from the office.
There is considerable concern expressed in this report about the father’s care of the two boys in March 2014.
I cannot lightly disregard this and say, “Well, it is just a report. I cannot place any weight on it” because I also know that around this time there was an altercation between the father and Ms A involving the police at the (omitted) property.
When police arrived Ms A told them that the father had taken and smashed her phone. She also gave a graphic description of a physical assault, including being pulled over by her hair and choked and said that the father had stood on her forehead. The police observed a striated mark on her forehead but no other injuries.
In the witness box Ms A said that she lied to the police about the father assaulting her although she told the truth about him taking and smashing her phone.
Ms A had mental health issues at the time and it is possible that she did tell the police something inaccurate. On the other hand given the father’s assault convictions how can I be sure, because I certainly cannot say that it is not something he is capable of doing.
So there is the report about the children which some-one made to the Department in March 2014 which raises serious concerns about their care. There is this incident in April 2014 where the police were called to the father’s property as a result of a dispute with Ms A, and there is also the fact that at the time Ms A was suffering from untreated mental health issues and was using ice.
I have considerable concern about the father’s care of X at that particular point in his life.
The father says that things are different now, and things may be different now. He is living in his own accommodation in (omitted) rather than at his father’s property in (omitted). He has a job. Ms A is properly medicated. I accept that things may be different now but when things of that magnitude have occurred in the not very distant past it gives rise to considerable concern.
The father’s violence is also of concern, and it is not all family violence, so I am going to deal with it here in the parenting capacity section.
The father has numerous convictions for assault.
It was his case that he had changed since his stint in jail after the October 2014 incident and the paternal grandparents told the family consultant the same thing; that the father had changed.
The problem is that the father has a very long history of aggressive offending. His first offences were in 1997 and 1998 and it is 20 years since those offences. There was a gap of 10 years before he was convicted of his next offence of assault in 2008 but then there was only three years until the next assault, 18 months to the next one, and 21 months to the next one.
It has been 2½ years since the October 2014 assault but given the father’s history that does not mean a lot. It is clear that with the father time alone does not mean that he has changed.
In addition there are not just the things he has been convicted of. There was a violent incident in April 2014. The father definitely broke Ms A’s phone. Ms A said so and the father said he could not remember what happened, and I cannot rule out the possibility that he also assaulted Ms A.
I cannot rule it out because of his history, because of his unreliability as a witness, and also because he was not particularly frank about the violence he had been convicted of in his trial affidavit.
What the father said about the incident with Mr G in his affidavit was that Mr G came around to his home and:
I had a knife in my hand, and I accidentally cut Mr G on the left shoulder.
The father did not mention that he went to the shed to get the hunting knife before Mr G arrived, so he minimised his role in the incident and he minimised his responsibility for it.
When people do that and when people have a history like the father has of violent offending, it is very difficult to accept their evidence when they say, “Well, that was then and this is now. Two years have passed. Everything has changed.”
B and C talked to Ms J about the father’s aggression during the interviews for the second family report. They were asked if they could remember when the mother and father lived together. They said:
Mr Nield was a cruel, annoying idiot. He used to fight with Mum a lot. He was the angriest person ever. He had Mum pinned up against a wall once.
I accept that the father wants things to be different but he has only very, very recently commenced an anger management course, not long before the trial commenced. He said that he was working with the service that he was seeing on his anxiety. He did not refer as such to working on anger management. He gave excuses for his behaviour. He gave a very sanitised version of what happened with Mr G and I am extremely concerned about the fact that I have the father behaving in that way, being violent, A speaking in a threatening and aggressive way about the mother in May 2016, and the paternal grandfather assaulting the mother to try and get X away from her.
That is the father’s family. This is what is happening in that family, and it is gravely concerning.
The family consultant also considered that it was impossible to be sure things had changed. She said as follows in her report:
It is evident the father has a propensity for violence but it is unclear as to whether he has adequately addressed such behaviour.[8]
[8] May 2016 Family Report paragraph 155
The family consultant said that it was encouraging that the father expressed remorse for his behaviour and heartening that during the period of time he was incarcerated he presented as being a compliant inmate, but she recognised that it was impossible to be sure that things had changed for the father.
I have considerable concern about the father’s history of violence and nobody can say that nothing will ever go wrong again for the father and that he will never commit another violent offence.
Another concern raised about the father was that he had historically used cannabis, but there was no evidence he was doing so at the current time and it was not raised as an issue at trial.
The father has married Ms A and they have a son, D.
If X spends extensive time in that household Ms A will be involved in the care of X as well as the other children. Ms A had a difficult upbringing herself. Life has dealt her a pretty rough hand and I feel considerable sympathy for her but in the not too distant past she was using methamphetamines and she has been diagnosed with bipolar disorder.
There have been no incidents which have brought Ms A to the attention of the police since mid-2014 but it is too soon to be sure that Ms A is never going to become unsettled again or find herself in another difficult period in her life.
Ms A has considerable responsibilities on her shoulders in the father’s household. She has a toddler with the father. She has two older children and the father’s son A, who clearly has behavioural issues, lives in the household.
I have considerable concern about how the father and Ms A would manage the addition of another child into that household who had to be picked up from school, got to school, and managed as part of that mix.
I also have to consider the mother’s capacity to provide for X’s needs.
According to the first family report the mother also had a difficult childhood. She alleged that historically that she was sexually abused by her father. She was in an abusive relationship with Mr G. She told Ms J during the first family report interviews that she suffered from social anxiety and phobia.
However if I look at what the mother offers X and her other children as opposed to what the father offers in his household, I have a situation where the mother does not have any inpatient admissions or severe mental health episodes. There is no evidence that her mental health is likely to deteriorate to the point where she cannot care for the children, the two other children in her household do not have special needs and as Ms J pointed out, there was no evidence of violence in her home.
The father did not allege that X was at any risk in the mother’s home.
The mother has been caring well for X since he came into her care two and a half years ago.
X has been diagnosed with ADHD and there is a reference to him having ODD in the medical records. He has been prescribed Ritalin. However no comprehensive paediatric assessment of X has ever been carried out. He has been treated by a clinical psychologist so it is difficult to be absolutely 100 % certain what is going on with X. He has had certain difficulties since he commenced kindergarten in 2014.
The father took X to see a clinical psychologist and he sought treatment for him which was to his credit. Unfortunately he did not involve the mother in that and after the child came into the mother’s care, she had trouble tracking down the child’s treating doctor and psychologist and that is confirmed in the psychologist’s notes which were tendered.
The psychologist said that he was initially unwilling to talk to the mother after she contacted him because the father was the one who had brought X to see him and that he felt he needed to get the father’s permission to talk to her. Ultimately he found out that the father was in jail and he started to talk to the mother but the father’s failure to involve the mother in the treatment had its ramifications.
Once the mother became aware of who had been treating X she was assiduous in taking X to appointments.
The father professed in the witness box to be shocked by evidence that X was currently having behavioural difficulties at school but as I have already mentioned at some length, X had behavioural difficulties at school when he was in the father’s care in early 2014.
I cannot be 100% sure what is going on with X; whether he independently has some difficulties or whether he is reacting to what has happened to him and what he has been exposed to during his life including the behaviour by his parents. I cannot be sure about that because I do not have a comprehensive report but I am satisfied the mother is doing her best to provide for X’s medical and educational needs. She is responsive when contacted by the school. She is taking him to his appointments.
There is evidence that in the latter part of 2016 and early 2017, X began having difficulties at school again after a period in which he did not have those difficulties. The mother’s view is that this was because he had commenced spending more time with the father. I cannot find that though; the evidence just is not sufficient to allow me to find that.
I do not know what is going on with X. It might be the mere fact that he knows, because he would know, that there is a dispute about where he lives is unsettling him, so I just do not know what is going on with him, but I am satisfied the mother is doing a good job looking after him medically and educationally.
I must consider the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents.
The mother has a good attitude to those things. The father’s actions in committing a serious indictable offence while X was in his care and letting his son down in that way demonstrates a poor attitude to the child and the responsibilities of parenthood.
I must consider any family violence involving the child and a member of the child’s family.
I have discussed family violence extensively in the capacity section of the judgment and I chose to do it there because not all the father’s violence has been family violence.
I must consider whether there are any family violence orders and what implications that has for the matter.
There have been numerous ADVOs involving the parties or people connected with them. There have been ADVOs to protect B from the father when he was charged with assaulting her; the mother from the father near the end of the relationship; Ms A from the father for a period of time after the incident in April 2014 according to the police records; the mother from the paternal grandfather after the assault in October 2014; and the mother’s former partner from the father after the wounding incident in October 2014.
The mere fact that those ADVOs have been made does not take me anywhere and the underlying reasons for them I have already discussed.
There do not appear to be any ADVOs currently in place.
I must consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings.
The parties were involved in litigation from early 2012 till early 2014 and have been involved in litigation from February 2015 to date, so in the last five years they have been involved in four years of intensive litigation, which is fairly debilitating and destructive for anyone. I cannot be sure in a case like this that there are never going to be any further proceedings no matter what order I make.
I must consider any other fact or circumstance that the Court thinks is relevant.
The first additional relevant matter is that A has Asperger’s, autism and ADHD and in the first family report the family consultant felt that he did not present within normal parameters. She was also concerned about the father allowing him to play certain violent video games.
I have no independent evidence about how A is travelling at the moment and therefore it is very difficult for me to be sure about how X will be impacted on by A’s behaviour if he spends extensive time in the father’s home.
Another relevant matter is what is going on with the paternal grandfather. He assaulted the mother in late 2014. He denies it. He took X to see the father in jail despite the mother’s objections. He did not give evidence in the proceedings.
X would appear to have a good relationship with the paternal grandfather but I am extremely concerned about his action in assaulting the mother in an attempt to recover X. What was going on in his head? If the father was in jail why should not the child have been with his other parent? I have concerns about the paternal grandfather and as a result, about the impact on X of spending extensive time with the paternal grandfather.
Another concern is the following passage from the second family report:
When X was separating from the father and paternal family he moved around the room hugging everybody, including the stepmother. The paternal grandfather then told X to be good for the mother otherwise he knows what will happen. X looked at him quizzically and the paternal grandfather jokingly said “You’ll get this.” He made a fist and hit it into the palm of his hand a couple of times. Whilst the paternal grandfather was quite clearly joking, he needs to be mindful that due to their young ages and diagnosis that both X and A may take him seriously and may not be able to understand adult humour.[9]
[9] Family Report paragraph 98
That action by the paternal grandfather in a case where I have all these assault allegations and A making threats about harming the mother, causes me grave concern, and the more time X spends with the father, the more he might be exposed to the paternal grandfather.
The final additional issue is that the family consultant recommended an injunction restraining the mother bringing X into contact with the maternal grandfather due to the allegations the mother had historically made that the maternal grandfather had sexually abused her as a child.
The mother’s evidence was that the maternal grandparents lived near her and that she allowed them to see the children and the maternal grandfather was in court for much of the hearing.
No evidence about the allegations of sexual abuse was put before me and I cannot gauge whether the maternal grandfather poses any risk to X. The father has never sought a restraint on the maternal grandfather spending time with X and there is insufficient evidence to allow me to justify me even contemplating making such an order.
I cannot even find there is a risk on the state of the evidence before me and there is no evidence that the mother is not dealing appropriately with the issue of X and her other children spending time with the maternal grandfather.
Parental responsibility
It was ultimately agreed that the mother should have sole parental responsibility for X and in my view that is the only order that I could possibly have made.
The presumption in s. 61DA of the Family Law Act does not apply. Among other things, the mother has a conviction for destroy and damage property arising out of a domestic dispute with the father so there has clearly been family violence in the parties’ relationship.
The parties’ relationship is extremely poor. They do not communicate. The mother is fearful of the father and the only appropriate order is that she has sole parental responsibility. I am happy to make that order because it is clear that the mother is making good decisions about X.
Conclusion
X has lived with the mother for two and a half years. He has repeatedly said that he wants to live with her and he has been observed to have a close relationship with her. He has a good relationship with B and C. There is no family violence in the mother’s home and the mother is taking good physical and medical care of him and there was no evidence that she was suffering from any debilitating mental health issues.
In contrast, the father has numerous convictions for assault and one for reckless wounding, including three assault or assault related convictions in the last four years. There are other incidents of concern in relation to the father including the April 2014 incident involving Ms A. He has only very recently started an anger management course. I could not possibly be satisfied that all risk of the father acting out violently either not in the presence of children or even in the presence of children had passed.
A lives in the father’s home and he has long had problems with ADHD and autism. Not long after the father wounded Mr G with a knife in October 2014 while A was in the house and was arrested and taken away, A grabbed a pair of pliers to assist his paternal grandfather who was trying to take X from the mother. That ought to cause people to stop and think about the impact of their behaviour on children. A also uttered threats about the mother in May 2016.
I wish Ms A nothing but good for the future but she has a troubled background. She has used drugs. She has bipolar disorder. I hope from the bottom of my heart that things go well for her but there is a risk that she might struggle to cope or that there might be problems in her household if another child with troubling behaviours is added to that household.
I could not possibly even remotely have considered making an order that X live with the father when I compare the two situations that are offered. X’s views and the fact that he has been settled in her mother’s care for two and a half years alone would have determined the matter and the fact that father has all those difficulties makes the outcome beyond argument.
In the end the father conceded residence though and the issue I have to decide is the time X should spend with the father.
The father sought an extension of time to whole weekends each alternate weekend and for half of the school holidays.
X would benefit from this in that the father could engage him in additional activities such as (hobby omitted). He could spend more time with his brothers D and A. He could spend more time with E who he enjoys spending time with.
He could be engaged in a better range of activities and he could have some downtime. Children do not need to be revved up all the time and doing activities. They need some downtime where they just lie on the lounge or in front of the TV or do nothing much at all.
The father could then be engaged in some more routine activities with him – bedtime and breakfast routines. He could have meaningful interaction with his paternal grandparents.
The other positive about it is that X relates very well to the father. In some ways they are peas in a pod with their love of cars and they interacted well at the family report interviews. All those things suggest that more rather than less time with the father is to be preferred.
Also the family consultant recommended alternate weekends from Friday to Sunday and additional time during the school holidays although she did not say how much time she thought that should be, and she made that recommendation despite recognising that there was no independent evidence that the father had changed and also recognising that X with his difficulties had a need for routine and firm boundaries and discipline.
In making that recommendation however, what the family consultant did was to prioritise the importance of X spending extended time with the father and the paternal grandparents and A and D given their long history of involvement in his life over other considerations.
The Independent Children’s Lawyer supported the father’s proposal for alternate weekends from Friday to Monday, and for half of the 1, 2 and 3 school holidays and week‑about at Christmas. I am not however persuaded that this would be in X’s best interests, and a number of factors suggest that less rather than more time is appropriate.
First, the father finds it impossible to recognise that the mother has positive qualities as a parent. He sought a live with order right up until the end of the mother giving evidence despite there being nothing to suggest that X was not being well cared for and despite X’s clearly expressed views.
The way A spoke and behaved at the family report interviews is in my view likely to reflect the paternal family’s views of the mother. There is a risk of X’s relationship with the mother being undermined in the father’s household and that indicates that less rather than more time in the father’s household would be preferable.
Second, I have considerable concern about the father’s propensity for violence. X has his own issues –ADHD and ODD – and he has had issues with violence and dysregulated behaviour since he started kindergarten, and it is hard to believe that that is simply something genetic and not something that is coming from what he has observed. The father did not let the children being present deter him from being involved in violence in April 2014 or when Mr G was wounded in October 2014.
There is a risk that something untoward and violent could happen while X is with the father.
Given the history of the father’s involvement with X and X’s attachment to the father and their shared interests, it is important that X continues to have a relationship with the father but the father’s propensity for violence means that time should be shorter rather than longer, because if something goes wrong the mother will hear about it sooner rather than later and can do something about it very quickly.
Third, I have a concern that things could unravel in the father’s household if an additional child with challenging behaviours is added to the household, and shorter rather than longer periods of time make it less likely that X’s presence in the household cannot be managed.
X has had problems at school since he started kindergarten and he still has them. He is well cared for in the mother’s household where there is no violence. I cannot find in the absence of evidence that the time he is currently spending with the father is causing him problems but I am certainly not prepared to take the risk with this vulnerable child of him spending extended time in the father’s household when the father has only recently begun an anger management course and has a history of committing acts of violence at intervals dating back 20 years.
The father’s marriage to Ms A seems stable but she has had problems of her own. There is in my view an unacceptable risk that if too much pressure is put on this household the wheels could fall off.
I do not share the family report writer’s view that the paternal grandfather is a positive factor. He has assaulted the mother, he was not frank about it to the family consultant and he made that concerning punching gesture to X.
I am therefore not going to make the orders proposed by the father.
The mother wanted me to cut the time back so that X only spent time with the father every third Sunday. I am not going to do that either. We have something that X is now used to and it would be better if things remained as they are so that there is not another change introduced for him.
I am going to order that the time continue as it is at the moment. In addition however, because I suspect that now the mother has enough strength to deal with it and not to give in to something that would not be in X’s best interests, I am going to make an order that the child can spend additional time with the father if the mother agrees to it but that her decision about whether it occurs will be final.
The mother has to stay strong if I make that order and not put her son at risk but it does give an option for some additional time to occur if some time passes and the mother forms the view that it would be good if there was some extra time.
It also gives the mother the option, if she chooses to do it, to allow the child to spend time with the father on some special occasions. There might be a car show or the V8 supercars for example but it will be her decision.
I cannot necessarily keep this matter out of court forever. If a few years pass and the father feels that he can demonstrate that things have changed permanently for the better for him but the mother will not agree to any different time the father might decide to make another application. I cannot stop that happening but at present I do not consider that it would be in X’s best interests for me to extend the existing time. I am not going to cut it back but I do not consider that it would be in X’s best interests to extend it.
I certify that the preceding two hundred and twenty two (222) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 25 May 2017
Key Legal Topics
Areas of Law
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Family Law
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Injunction
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