Nimmo and Bush (No.3)

FEDERAL CIRCUIT COURT OF AUSTRALIA

NIMMO & BUSH (No.3)

[2016] FCCA 3151

Catchwords:
FAMILY LAW – Application seeking transition to father – paramount consideration of the best interests of the child – mandatory considerations –child living with the mother is in best interests of the child – progressing meaningful relationship with the father – opportunity for substantial and significant time by the father with the child – child to remain living with the mother – equal shared parental responsibility of child – parties to consult with each other in genuine effort in best interests of the child – the application for transition is declined – parenting orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 65D, 65DAA, 65DAC, 65DDA, 65F, 65G, 69H

Cases cited:
Standish & Standish [2012] FamCA 443

Applicant:

MR NIMMO

Respondent:

MS BUSH

File Number:

BRC 4853 of 2016

Judgment of:

Judge Street

Hearing date:

15 November 2016

Date of Last Submission:

15 November 2016

Delivered at:

Brisbane

Delivered on:

15 November 2016

REPRESENTATION

Counsel for the Applicant:

Mr Alexander

Solicitors for the Applicant:

Ramsden Lawyers

Counsel for the Respondent:

Mr George

Solicitors for the Respondent:

The Respondent appeared in person.

Fedorov Lawyers

ORDERS

That the application filed by the father on 25 May 2016 be dismissed.
That all previous Orders made by the Court be discharged.
That the mother is released from the undertaking provided to the Court on 26 September 2016.
That the father and the mother have equal shared parental responsibility for the child X born (omitted) 2013 (“the child”). The parties are to consult with each other in a genuine effort to reach decisions in writing which are in the best interest of the child.
That each party is to notify the other, as soon as practicable of any urgent medical issue regarding the child.
(a)the parties are to provide each other with any medical information and consult each other in relation to any required treatments.
That the child live with the mother.
That the child spend time with the father as agreed in writing between the parties and signed by each party, and failing agreement as per the following:
(a)from 9:00am on Saturday to 5:00pm on Sunday in week one (1);
(b)from 2:00pm to 6:00pm on Wednesday in week two (2);
(c)week one of the child’s time with the father is to commence on 19 November 2016.
That once the child attains the age of five (5) the child is to spend time with the father as agreed between the parties in writing and signed by each party, or failing agreement as per the following:
(a)from 5:00pm on Friday to 5:00pm on Sunday in week one (1).
(b)from after school to 7:00pm on Wednesday in week two (2);
That the child is to spend time with the father on Father’s Day as per the following:
(a)from 9:00am to 5:00pm; and
(b)once the child attains the age of five (5), from 9:00am to 7:00pm.
That the child is to spend time with the mother on Mother’s Day and any paragraph within these Orders which is inconsistent with this requirement is suspended.
That the child is to spend time with the father on the father’s birthday from 9:00am to 5:00pm.
That the child spend equal time with the father and the mother on the child’s birthday and Christmas day.
That once the child begins to attend school, the child is to spend time with the father for half of the gazetted school holidays.
That the father is to collect the child from the residence of the maternal grandmother and the commencement of the child’s time with the father and return the child to the residence of the maternal grandmother at the conclusion of the child’s time with the father.
That the mother is to facilitate telephone communication between the child and the father on no less than two (2) occasions per week.
That once the child attains the age of five (5) the parties are to consult each other with a view to reaching a written agreement signed by each party for additional telephone time between the child and the father, whilst the child is in the mother’s care.
That neither party is to denigrate or insult the other party or their family in the presence or hearing of the child and is to use their best endeavours to ensure that others do not denigrate or insult the other party or their family in the hearing or presence of the child.
The parties are to ensure that the other party’s privacy is respected and refrain from questioning the child about the other party;
The parties are not to attempt to undermine the relationship between the child and the other party or party’s partner.

Particulars Under Section 65DA(2) of the Family Law Act 1975

The above parenting orders impose mandatory obligations upon the parents to comply with each order for the benefit of the parenting of the child. Each parent must abide the requirements of each order and a breach of any of the above orders may constitute a contempt giving rise to exposure to imprisonment, sequestration, fine and variation of the above orders which may include loss of access to the child. Attached to this Order is a document, “Parenting Orders – Obligations, consequences and who can help” which further explains the nature of the parenting orders and consequences of contravention and the information provided forms part of the parenting order pursuant to section 65DA(2) of the Act.

IT IS NOTED:
A.Counsel for the Applicant, after delivery of oral reasons and upon pronouncement of the orders of the Court, stated the intention of the Applicant to appeal and when invited to do so declined to make any application for a stay.

IT IS NOTED that publication of this judgment under the pseudonym Nimmo & Bush (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 4853 of 2016

MR NIMMO

Applicant

And

MS BUSH

Respondent

REASONS FOR JUDGMENT

Background

This is an application within the Court’s jurisdiction under s.69H(4) of the Family Law Act 1975 (Cth) (“the Act”). On 25 May 2016 the applicant father filed an application under Part VII of the Act relevantly seeking a change of the circumstances that had existed for almost the last three years in relation to the child born on (omitted) 2013. The application was filed in circumstances where the respondent mother was no longer permitting access and had not since approximately January 2016.
A Notice of Risk was filed in relation to the child on behalf of the applicant on 22 June 2016 and a Notice of Risk was filed by the respondent on 29 June 2016.
The Court has received affidavit evidence from the father, the father’s partner, the mother and the grandmother of the child, being the mother of the respondent. The Court also heard evidence from a consultant who prepared a report dated 11 November 2016 in which relevantly, the consultant recommended a transitioning of the child from the position of living with the mother to living with the father.

Evidence given by the applicant father

The applicant father gave evidence explaining that he was a cabinet maker and currently works up to 60 hours a week, from approximately 5:00 am to 5:00 pm Monday to Friday and not irregularly, works on Saturday, for approximately four hours from 6:00 am to 10:00 am. In his affidavit, the father gave a history of the relationship with the mother that commenced in late 2011. Separation occurred in or around September 2014. The father commenced a relationship with his current partner who gave evidence in early 2015.
The father made reference to concerns in respect of the mother’s mental health. At the time of separation from the mother, the father accepted that the child should live with the mother because he was working full-time. This is of relevance in relation to the considerations that the Court is required to undertake. That position has not changed, albeit that the father said that arrangements could be made for the child to attend a day care centre as well as for his partner to assist in looking after the child if the child were to live with him.
Whilst the father made reference to concerns about the applicant’s mental health, it is apparent that the father was well aware of the mother’s psychiatric assessment by Dr C prior to the filing of the application in this Court on 25 May 2016. There is no evidence in the present case of any physical violence or physical abuse of the child whilst in the custody and care of the mother.
The evidence of the father included text messages. One of the texts messages was relevantly was sent during the period this year when the father was not obtaining access, in which the father said:-
I will go for complete full custody if you are unwilling to stand by our previous agreement.
The reference to the previous agreement was in substance allegedly one where the mother was to reside with her mother and the child was to remain living with the mother. In evidence given to the Court, the father acknowledged that he was well aware of the mental issues in respect of the mother prior to the making of this application.
The father was not an impressive witness. When asked a question by this Court about whether he had had any conversation with his current partner about whether she should attend on 10 September 2016 he answered in the negative. This was at a point of time when the husband was not paying maintenance and at a point of time when the mother had raised what I find were her genuinely held concerns that the child was at risk and made serious, albeit flawed, accusations against the applicant’s partner. the evidence of the father was that there was no discussion with his current partner about whether or not the current partner should attend on 10 September 2016 I find was not true.
That evidence was contradicted by the evidence of the applicant’s partner who, when pressed by the Court, explained that there was discussion about whether or not she should attend and discussion as to whether that might aggravate the position with the respondent in her attending. I do not accept the father as a witness of truth.
I prefer the evidence of the respondent mother, who I find was a truthful witness, to that of the applicant father in relation to the circumstances that have taken place and in relation to the welfare, safety, development and security of the child.

Incident on 10 September 2016

I prefer that the evidence of the mother, rather than that of the applicant father and his partner, in relation to the nature of the incident that occurred on 10 September 2016. That incident is one in which I find that it was obvious and known to the applicant father that it would be aggravating and provocative for him to attend with his partner in circumstances where he was not paying maintenance, a fact not disclosed to his partner at that time, and in circumstances where albeit misconceived, he was well aware of the serious concerns held by the respondent mother.
That incident is one where it was in retaliation to the conduct of the applicant that contact occurred between the respondent mother and the applicant and the applicant’s partner. This was described by Counsel as an outstanding criminal assault. On the mother’s evidence it was not anything of the sort, but rather a provocative step taken by the applicant in which he invaded the respondent’s personal space and provoked a retaliation by the respondent.
Counsel sought to cross-examine and ask a question as to whether the respondent mother assaulted the applicant’s partner. The Court rejected that question on the grounds that it went to a legal issue in respect of which the respondent, unrepresented, was entitled to the benefit of the privilege against self-incrimination. The evidence does not support any characterisation of criminal conduct in the incident provoked by the respondent on 10 September 2016.
The Court that contact with the respondent and his partner by the applicant occurred because of the significant and known provocation on the part of the respondent father. I find it was up in lights in the communications that the applicant had received from the respondent that the respondent was genuinely concerned about his partner and that her attendance on that occasion was likely to aggravate and provoke a response. The applicant’s conduct by invading the respondent’s personal space caused the contact between the respondent and the applicant and his partner. The respondent’s conduct was reasonable and in self-defence of herself and her child.
Whether the respondent’s concern was well-founded or not, it was something that made the applicant attending with his partner on 10 September 2016, knowing that there has been those communications and concerns expressed, a clearly aggravating and provocative action by the respondent father. However, I regard the incident that occurred, in terms of the father getting “into the facial space”, as described in the witness box, of the mother as an inappropriate invasion of her personal space amounting to threatening conduct by the applicant that was itself arguably an assault on the respondent and of itself, conduct by the applicant likely to promote an exchange by the respondent in self defence.

Psychiatrist Report – Dr C 2 August 2016

Annexed to the father’s affidavit relevantly were a number of reports by Dr C. The first report, dated 2 August 2016, asked a question of the consultant psychiatrist “whether you have any concerns about risk to the child while in the mother’s care.” The response on 2 August 2016 was “At this stage I do not have any concern about risk to her child while he is under her care.”
The report notes that the mother obtained psychotherapy sessions from a particular psychologist. The report refers to the fact that she was seen by a social worker of a particular name who assessed her functioning and level of interaction with the child.
The psychiatrist noted that both the psychologist and the social worker had provided feedback to the psychiatrist. Relevantly, the psychiatrist recorded that the psychologist and the social worker do not have any concerns about risk to her son. The psychiatrist noted that the respondent currently lives with her mother who has been very supportive and that her father recently passed away.
The next question in the report of 2 August 2016 was whether the mother is taking her prescribed medication. The response was:
“Although the mother took her medications, there was a period of time when she did not take her medications due to concerns of the side effects in relation to potential weight gain.”
The next question asked was whether the mother had changed psychiatrists or psychologists and the names of such persons. The psychiatrist responded that he was not aware of any changes to her psychiatrist or psychologist since she had been under his care since 2014. There was a reference to being aware that she had been seen by a Dr L in 2009.
The next question was confirmation of the mother’s compliance with directions for attendance upon the psychiatrist, engaging in treatment and medication regimes in accordance with the directions. The response from the psychiatrist was that the mother has attended her appointments most of the time but there were a few appointments that she has missed.
Materially, the psychiatrist noticed that the mother’s initial psychotic symptoms have improved significantly. The psychiatrist opined:
“Overall, my impression was that she had a significant improvement since I started to see her.”
The psychiatrist made reference to their being elements of depression at times and that there was a period when she felt that some harm may come to the child. The psychiatrist noted that at that time the mother was quite under distress and that her ex-partner was trying to get custody of her son.
It is material in relation to the weight to be given to the consultant’s report, that no detailed analysis at all appears in the consultant’s report in relation to those opinions of the psychiatrist who the consultant accepted was one who had better professional qualifications than the consultant.

Psychiatrist Report – Dr C 8 August 2016

There was a further report annexed to the father’s report by Dr C dated 8 August 2016 which asked the question whether the mother is currently prescribed medication and a list of the prescribed medication. The response was that the mother currently monitored without any medication. The next question was in the event that she is not taking her medication, does that impact on her ability to function in the usual course including the parenting of the child.
The response was that:-
The mother’s mental state is currently stable and as mentioned in my previous letter, there is no acute concerns as to her ability to function and her parenting of the child.
In paragraph (c), the question was asked:-
“Is part of her treatment plan attending appointments regularly and if so, how regularly?”
Under which the psychiatrist noted that the mother had regular appointments with the psychiatrist which are every four to six weeks as part of her treatment plan. That report was also not the subject of any reference in relation to the analysis engaged in by the consultant in the opinions expressed by the consultant that proposed that the child should be the subject of a transition to live with the father.

Psychiatrist Report – Dr C 23 September 2016

There was a further report dated 23 September 2016 in the father’s affidavit from Dr C which identified a detailed history following her first attendance in 2014 of reference to a diagnosis of underlying psychotic illness namely Schizophrenia and that that had been more prominent when she had used marijuana in circumstances of alleged previous sexual abuse. That report also was one in which the psychiatrist noted that the mother was not currently on medication. It recorded that the doctor had no concerns in relation to the emotional, physical or sexual abuse of the child from the mother.
There was a reference to the mother having a low grade paranoid feeling at times which appeared not to be affecting her everyday life significantly. The psychiatrist noted that the mother did not manifest any other psychotic symptoms. The psychiatrist noted that the mother is going to be monitored without any medication and that the mother has attended her appointments most of the time and the psychiatrist noted that the overall impression was that the mother had a significant improvement since the psychiatrist first started seeing her.
The psychiatrist also noted that the respondent mother had a supportive mother who appeared to be a very responsible person and noted that the respondent’s current mental state was stable. There is reference to ongoing appointments as part of her treatment plan and the following question was asked:-
“What is the extent to which Ms Bush’s mental affects or impairs her ability to adequately look after and attend to the physical, emotional and psychological needs of her child?”
The psychiatrist responded that he did not have any concern about risk to her child while he is under her care. The psychiatrist noted although she has been under stress recently due to ongoing conflict with her ex-partner and custody issues, her mental state has not deteriorated. The psychiatrist opined that her mental state did not impact on her capacity to adequately look after and care for her child.
The psychiatrist opined that the respondent is not a risk to her child at this stage and identified the basis upon which those opinions were expressed. Materially, that included that the mother had not caused any harm to her child previously. It also included reference to an assessment by a social worker at home who did not raise any concerns about the mother’s capacity to look after her child. It also included a psychologist’s response who did not raise any concerns about the mother’s capacity to look after her child. It also included liaising with the (omitted) Hospital that indicated they did not have any concerns about the ability of the mother to look after her child. It also included that the mother has a reasonable, good therapeutic engagement with the psychiatrist and her mental state is currently stable and she is attending appointments and the psychiatrist expressed confidence that any case of worsening of her mental state can be addressed.

The question in the report was:-
“Whether the recent passing of her father on the 14 July 2016 had any impact on the mental health of the mother. If so, had she been affected in such a way that this has caused you to be concerned about her capacity to adequately care for the child?”
The response was, apart from normal grief reaction, the respondent had managed losing her father recently and that this did not have a significant impact on her mental state.
The third question was it is alleged that the mother had prevented contact from happening between her child and the father on some occasions as she allegedly refused to hand the child over:-
“Do you have any insight from your discussions with the patient as to what might have caused her to behave in such a manner?”
The psychiatrist noted the alleged sexual abuse of the mother in her childhood and that she had recently raised concerns that her child might be abused.
The psychiatrist noted having challenged her about those handover issues and that she had reported she did not feel comfortable about the child being left with his partner. Relevantly, the psychiatrist noted that the respondent said she did not have concerns about the ex-partner’s previous girlfriend. The concerns by implication on a fair reading of the psychiatrist’s report were ones in relation to the applicant’s current partner. The psychiatrist said:-
“As mentioned before, the mother might be overly protective for her son due to the traumatic experience she had had.”
Materially again, this was a report not addressed in any way in the consultant’s report.

Consideration of the consultant as a witness and the consultant’s report

The consultant did not impress me as a witness and was unresponsive in relation to a simple question by the Court as to why she had not set out the explanation she alleged she had given to the respondent at the commencement of the interview in relation to the nature of the interview process and the information to which she would have regard. The response from the consultant was one of attempting to justify the opinions expressed and unresponsive.
The Court raised with the consultant a number of concerns in relation to the consultant’s report. The first was the failure to address the psychiatrist’s expert evidence that was annexed to the affidavit of the respondent. The consultant alleged that the material had been the subject of consideration. The Court does not accept that evidence. There is no consideration expressly identified in the report other than a reference to the subpoenaed records in circumstances where the consultant had acknowledged at the outset the importance of a relevant question for consideration as to the mother’s mental health stability.
In the revised questions intended to be addressed by the consultant, the consultant failed to address the psychiatrist’s expert opinions in relation to the mother’s mental health. I do not regard the explanation by the consultant as to the reason that that expert evidence was not addressed as satisfactory. I draw the inference that the consultant did not take into account the annexures to the father’s affidavit being the psychiatrist’s reports and that this was material information to which the consultant should have had regard.
Also of material concern in relation to the consultant’s report was the evidence accepted by the consultant of the credibility in evidence of the father. For the reasons I have given, I do not find the father to be a credible witness and the consultant acknowledged that her opinions in relation to the appropriateness of transitioning were based on the acceptance of the credit of the father.

Credibility of the applicant father’s evidence

This Court does not accept the credit of the father in relation to his alleged concerns in respect of the child’s welfare, development and safety or in relation to the incidents that he alleges to be of concern.
The delay in the father bringing this application in circumstances where he was well aware of the mental health issues of his former partner does not sit neatly with the asserted genuine concern in relation to her capacity to look after his son. I regard the text messages as telling in relation to the motivation behind the applicant’s application and that this was in response to having been denied access rather than in relation to any genuine concern as to the welfare and safety of the child or the child’s development.
Further, in relation to the incident that occurred on 10 September 2016, the father acknowledged in the witness box that he held no fear in relation to the respondent mother. That absence of fear is consistent with the applicant’s invasion of the respondent’s personal space as an act of provocation together with the attendance of his partner which I find was also known by the applicant to be provocative. More than that, it is one in respect of which the father’s conduct of getting into the face of the mother in the presence also of his current partner in circumstances of the communications that had taken place was unreasonable, unjustifiable, provocative and itself capable of being seen to be an assault upon the respondent.

Further consideration of the consultant’s report

The consultant did not take into account that provocative conduct of the applicant in the opinions expressed in the consultant report. More significantly, the consultant in relation to the recommendation of transition did not address the capacity of the father, given his working hours and that of his partner, to properly look after the welfare and development of the child if living with the father. The mother is currently receiving Centrelink payments and has been living with her mother, albeit previously for almost 12 months the respondent lived on her own with the child.
The failure of the consultant to address the material circumstances that the father identified at the commencement of his separation from his wife, namely his full-time work as to his ability to look after the child is a further material deficiency in the opinions expressed of the consultant. The Court does not accept the consultant’s opinion in the present case as being one which is soundly based or reliable for the reasons expressed.

Evidence given by the applicant’s partner

In relation to the evidence given by the applicant’s partner, her explanation in relation to the communications she had concerning whether she should attend on 10 September 2016 were ones that only came out after being pressed by the Court. It is for that reason that the Court prefers the evidence of the mother to that of the father’s partner in relation to the circumstances that occurred.

Cross-examination of the Respondent

The mother was the subject of cross-examination by Counsel on behalf of the applicant. Prior to the commencement of the cross-examination, the Court had foreshadowed that cross-examination would be limited to half an hour without further leave. The cross-examination exceeded forty-five minutes. The thrust of most of the cross-examination was in essence, to dress rehearse the opinions expressed in the consultant’s report and given the report was in evidence was barely relevant. Little cross examination was directed to test the credibility of the mother. For the reasons given I accept the mother’s credibility and find, unlike the applicant , that the respondent was telling the truth.
The mother frankly acknowledged an incident in relation to unnecessary conduct that she engaged in by mooning the husband. That conduct in the context of the circumstances of this case is de minimis and has no real bearing on the parenting issues in the case, any more than the incident on 10 September 2016, despite the enthusiasm of counsel for the applicant as to the rhetoric of outstanding criminal charges. There is no suggestion that the mooning or incident conduct occurred in the presence of the child. Neither the mooning nor the incident on 10 September 2016 a cause for the Court to have concern in respect to the welfare of the child whilst with the mother. The Court places no weight on the opinions expressed by the consultant, given the failure by the consultant to take into account properly and address the matters I have referred to.
The cross-examination of the respondent included identifying some current medication that she was taking called Latuda, in respect of which the respondent was taking one tablet at night. The respondent was in my opinion, endeavouring to be truthful and candid in her response to the questions being asked, albeit some of the questions had terms or concepts that she found difficult to comprehend.
The respondent mother acknowledged that she had failed to comply with the Court orders which was an extremely serious consideration and one which the Court will take into account in the context of the statutory obligations that it is required to consider. It is apparent from the evidence that although the matter came before the Court on 29 August 2016 and there was a changeover order made in order to ensure access for the father, that did not occur until the matter came back before the Court on 26 September 2016.
On this occasion, the Court made very clear to the mother the importance of adhering to any regime or orders of this Court in respect of parenting. It is apparent that the mother has complied with those parenting orders since that occasion.
A matter of concern that was raised in relation to the mother was her fixation in relation to the applicant’s partner allegedly engaging in criminal conduct. It is apparent that the respondent mother is highly protective of her child and had this issue raised with her by her psychiatrist. It is of materiality that the psychiatrist records that the mother acknowledged that she did not have ongoing concerns in relation to the child’s welfare in respect of the applicant’s partner in the most recent report.
It is also of significance that when given the opportunity to cross-examine the applicant’s partner, the mother desisted from an endeavour to pursue any criminal allegations against the partner of the applicant. It is obviously of considerable importance that the mother is able to assist constructively in relation to the development of the relationship between her child and the child’s father and also to ensure that there is no disparaging or further undermining of the applicant’s partner.

Failure by the consultant to take into account the expert’s psychiatric evidence

Counsel for the applicant submitted that the only order capable of being made was one transferring or transitioning the child into a position of living with the father. That was over enthusiastic rhetoric and an overstatement of the evidence and wrongly assumed that the Court was bound to accept the consultant’s evidence which, for the reason I have given, I do not. It is also a partisan submission which fails to take into account the expert psychiatric evidence that was before the Court. The submission of counsel also wrongly assumes that the evidence of the applicant was truthful, an erroneous assumption also made by the consultant. For the reasons given the Court does not accept the applicant as a witness of truth and accepts in terms of credibility the evidence of the respondent including in respect of the circumstances that have taken place insofar as the child is concerned. The preference of the credibility of the father was a matter which the consultant herself acknowledged was the foundation for her opinion. That assumption by the consultant was wrong.
Further the consultant had a limited occasion to make observations and opined in relation to the bonding between the child and the father and the lack of distress on the leaving of the mother. The child calling out in relation to the father on a single occasion in relation to an assessment, does not provide a proper basis for the very significant change to the status quo that has existed for the last three years in relation to considering what is in the best interests of the child.

The object of Part VII in determining relevant parenting orders to be made – s.60B

In relation to determining what parenting orders should be made under Part VII, Division 7 of the Act, the Court must take into account the object of Part VII identified in s.60B of the Act as follows:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
(4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
That object identifies the importance of both parents having a meaningful involvement in the life of the child to the maximum extent consistent with the best interests of the child. It also requires taking into account in respect of the best interests, protecting the child from physical or psychological harm, being subject to or exposed to abuse, neglect or family violence.
The object also includes ensuring that the child receives adequate and proper parenting to help the child achieve the child’s full potential. The object also refers to ensuring that the parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of the child. That object is the subject of the principles explained under s.60B(2) of the Act in respect of the importance of the child’s best interests in having the right to know and be cared for by both parents regardless of whether the parents are married, separated or never married and have never lived together.
Further, the importance in respect of the child’s best interests of having a right to spend time on a regular basis with and communicate on a regular basis with both parents and other people significant to the child’s care, welfare and development which relevantly, in the present case, would include the husband’s partner and the grandmother. The importance in respect of the child’s welfare of the parents jointly sharing duties and responsibilities concerning the care, welfare and development of their child, and the importance of encouraging the parents, in the best interests of the child, to agree about future parenting of the child and the importance, in the best interests of the child, of the child’s right to enjoy the culture of the family of each partner.

Paramount consideration of the best interests of the child – s.60CA

The requirements in respect of that object are expanded on in s.60CA of the Act. Section 60CA of the Act, makes it clear that the Court must regard the best interests of the child as the paramount consideration. It is of particular importance in the present case in relation to that paramount consideration that the child has, for the last three years, been living with the mother, whilst the father has been working full-time and intends to continue to do so. The continuation of the child living with the mother is, the Court finds, in the best interests of the child. The Court has taken into account the whole of the statutory considerations in the scheme under Part VII including Division 6 in determining the best interest of the child and this parenting order application.

Mandatory considerations to take into account when determining the child’s best interests – s.60CC

Primary Considerations – s.60CC(2)

Under s.60CC of the Act, statutory assistance is given to the Court in determining what is in the best interests and it identifies mandatory considerations that the Court must take into account under subsection s.60CC(2) and s.60CC(3) of the Act.

The benefit to the child of having a meaningful relationship with both of the child’s parents

The first mandatory considerations are the primary considerations in respect of the benefit of the child having a meaningful relationship with both of the child’s parents. The Court is of the view that that primary consideration is one that is best advanced by the child continuing to live with the mother with appropriate meaningful opportunity for the father to regularly interact with the child.

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

The next primary consideration is the need to protect the child from physical or psychological harm, from being subject to or exposed to abuse, neglect or family violence. In the present case there is no evidence of any such physical or psychological harm of the child whilst living with the mother. The Court finds this is a primary consideration that again weighs in favour of the child remaining in circumstances where the child lives with the mother.

Additional considerations – s.60CC(3)

There are additional considerations identified in s.60CC(3) of the Act.

Any views expressed by the child – s.60CC(3)(a)

In the present case the child is too young to express any views. For the reasons already given, I do not regard the observations made by the consultant in relation to the child’s bonding with the father as reliable or something the Court should accept in respect of the suggestion of a closer bonding with the father than the mother. For the reasons already given, I do not accept the opinions in the consultant’s report nor do I accept as reliable the consultant’s evidence.

The nature of the relationship of the child with each of the parents/other persons – s.60CC(3)(b)

The next consideration under s.60CC(3)(b) of the Act is the nature of the relationship of the child with each of the child’s parents and other persons. I accept in the present case that the child has developed a real relationship which is meaningful and beneficial in respect of both parents and also importantly, the child’s grandmother and also I accept with the applicant’s partner.

The extent to which each of the child’s parents has taken, or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, spend time with the child and communicate with the child – s.60CC(3)(c)

The next additional consideration under s.60CC(3)(c) of the Act is the extent to of which the child’s parents have taken or failed to take the opportunity to participate in making decisions about long-term issues in relation to the child, and to spend time with the child and to communicate with the child. In this regard it is not to the mother’s credit that she failed to permit the endeavours by the father for what is a fairly substantial period from January almost through to September to have adequate access and interaction with his child.

I accept the mother was under a misguided apprehension and since the occasion before the Court on 26 September 2016 where it was pointed out to her the importance of complying with the Court orders, and the significance of the consequences of failing to comply with those Court orders, the mother has complied with that interim parenting regime.
Further, I take into account the evidence which the mother gave, which I accept demonstrated a real willingness to ensure the continued involvement of the father in the development, welfare and advancement of the child. In that regard the mother did give evidence of an endeavour, albeit unsuccessful, to communicate on the birthday of the father in relation to the child.

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

The next additional consideration pursuant to s.60CC(3)(ca) of the Act is the extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligation to maintain the child. In this regard, there is the failure, which is serious, to which I’ve referred by the mother in the period from January to September. I am confident and find from the evidence given by the mother that that is not something that will re-occur, because the mother now fully understands the gravity of the consequences that would follow if that happened.

The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation – s.60CC(3)(d)

I further take into account the additional consideration pursuant to s.60CC(3)(d) of the Act as to the likely effect of any changes in the child’s circumstances including the likely effect on the child in separation from either of his parents, and from a person with whom the child has been living. In the present case, the application brought by the father would, in my opinion, have a significant impact in relation to a child who has spent its first three years of living with the mother. I find that significant impact is likely to be detrimental to the child if transitioned to the father. I am not satisfied that it would be in the best interests of the child for there to be any transition of the child so as to start living with the father.
The mother’s current circumstances, being on Centrelink payments, is one where she is spending on the evidence I accept, quality time with and constructively interacting with her child emotionally, physically and intellectually. I find that the child has had significant impact from the benefit of living with her mother. I find the child has, in addition to her mother also had a doting grandmother who has assisted her daughter from time to time in relation to the child. That assistance is not one where the Court had earlier made orders that required the mother respondent to live with her mother. Rather, that was a step that she took despite it being one where she had, for 12 months, lived on her own with the child.
I find that the mother took that step consistent with her recognition of ensuring that the best interests of the child were maintained in living with the respondent when at risk of issue with the applicant, even though the respondent mother wanted to advance her own life in relation to living separately from the child’s grandmother. I do not regard the likely effect of the mother being free not to continue to live with the grandmother as having any adverse effect on the future welfare of the child or being contrary to the best interests of the child

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

The Court takes into account, as another additional factor pursuant to s.60CC(3)(e) of the Act, the practical difficulty and expense of the child spending time with and communicating with the parent, and whether that difficulty and expense will substantially affect the child’s rights to maintain personal relations and direct contact with both parents on a regular basis. In this regard, there has been an expense incurred by the father in having to have handovers at an independent third party location.
I am not satisfied on the evidence before me that there is any reason why the handover cannot take place at the grandmother’s premises, regardless of where the mother might be living with the child. The handing over at the grandmother’s premises will patently assist in minimising expense in circumstances where the father should be willing to cooperate in respect of the orders made by the Court.
The observations made by the Court in respect of compliance with its orders by the mother have equal force in relation to the father. The father’s failure to comply with the orders made by the Court are likely to give rise to similar potential consequences as may affect any person who fails to comply with Court orders. Those consequences include not just being dealt with for contempt and potentially being sent to gaol, and include sequestration and loss of rights in terms of access to children. I am also satisfied that steps can be taken to ensure that there is regular telephone contact between the child and the father.

The capacity of each of the child’s parents and any other person including any grandparent to provide for the needs of the child, including emotional and intellectual needs – s.60CC(f)

In relation to the additional consideration under s.60CC(f) of the Act, this concerns the capacity of each of the child’s parents and other persons to provide for the needs of the child, including emotional and intellectual needs. This is an important consideration as this was the area in respect of which the social worker, in the report dated 11 November 2016, was concerned as to the development of the child.
There are clearly different intellectual and emotional awareness’ between the father and the mother. However, I do not regard the mother’s mental illness as one which adversely impacts on the emotional and intellectual needs of the child. The mother has taken and demonstrated, from the psychiatry report, ongoing regimes to ensure her own stability. I do not regard that as a matter that requires the Court’s ongoing intervention by orders, particularly in circumstances where I find the application brought by the father as being consistent with what was said in the text that this was a step taken by the father in retaliation for the applicant being unwilling to abide the previous agreement and to provide access to the father.
I also take into account that the respondent mother is likely to have ongoing input on a voluntary basis from her own mother, the grandmother of the child. In my view, it is not necessary for the Court to make any order requiring ongoing monitoring by the grandmother or input in that regard. I am satisfied that the respondent and when present or visited the grandmother will advance the interests of the child and the needs of the child, emotional and intellectual. I am also satisfied that the father will continue to do so on the opportunities that he is given to further his meaningful relationship with the child.

The maturity, sex, lifestyle and background of the child and of the parents and any other characteristics of the child that the Court considers relevant – s.60CC(3)(g)

I take into account the consideration under s.60CC(3)(g) of the Act being the maturity, sex, lifestyle, background of the child and of the parents and the other characteristics of the child that the Court considers relevant. The young age of the child is of considerable concern in relation to the ongoing position of living with the mother. I do not regard the evidence as establishing any special needs of the child over and above the care that the mother is giving that would warrant some other consideration. I take into account that the child, on the mother’s evidence, is starting to attend day school. The mother is I find a caring doting mother who has been properly looking after her child and has the time and willingness to do so. The applicant father has work hours that do not currently permit the same confidence in advancing the child if a transitioning occurred.

The attitude to the child and to the responsibilities of parenthood demonstrated by the parents – s.60CC(3)(i)

The next consideration I take into account under s.60CC(3)(i) of the Act is the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents. In this regard, in the period from January to September, the mother has failed to adequately recognise the importance of the role of the father in relation to the child’s ongoing entitlement to a meaningful relationship with the father and the input from the father. It is part of the responsibility of the mother to ensure that that meaningful relationship with the father continues, prospers, and that the child benefits from the relationship with the father.

Whether any family violence involves the child or a member of the child’s family – s.60CC(3)(j)

In relation to s.60CC(3)(j) of the Act, for the reasons already given, there is not in the present case an issue of family violence involving the child. Whilst there is an incident on 10 September 2016 that was the subject of great excitement and critical focus by Counsel for the applicant, I do not regard that as an incident that has any real weight in relation to the appropriate orders to be made in respect of the child’s best interests. Nor does the incident of mooning the father have any weight.
It is for this Court to determine the best interests of the child, not a State Court or State criminal proceedings. Whether those criminal proceedings are pursued is a matter for the father and his partner to reflect upon in relation to the best interests of the child. The applicant should also take into account in that regard the findings of this Court and the need to put first the best interests of his child. The willingness of the applicant father to pursue and propound criminal proceedings in the circumstances that occurred on10 September 2016 adversely reflects of the father’s sincerity or ability to look after the best interests of the child.

Whether any relevant inferences can be drawn if a family violence order applies – s.60CC(3)(k)

I take into account s.60CC(3)(k) of the Act that there are family violence orders in place from the Local Court in relation to the incident that occurred on 10 September 2016. For reasons already given, I do not regard that incident as one of any real significance in relation to the mother’s fitness in respect of the ongoing care, custody and development of the child. The pursuit of those proceedings does in my view adversely reflect upon the applicant and his partner. I find that the provocation, institution and pursuit of those proceedings smack of being for misconceived strategic reasons in seeking to advance the father’s application in this court.

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

I take into consideration the requirements of s.60CC(3)(l) of the Act, being the need to take into account the making of an order that would at least be likely to lead to the absence of the institution of further proceedings in relation to the child.
In that regard, the Court proposes to make orders to advance the meaningful relationship of the father in relation to the child, and the father’s increasing access, and to facilitate the parties being in a position themselves to advance the welfare of the child by agreement signed in writing to increase the access that the father might have in relation to the child.

Whether there is any other fact or circumstance that the Court thinks is relevant – s.60CC(3)(m)

Section 60CC(3)(m) of the Act refers to whether there is any other fact or circumstance that the Court considers relevant. For the reasons already given, I do regard the text that was sent by the father as to retaliation and the conduct of the father in attending with his partner on 10 September 2016 and entering the respondent’s personal space as knowingly provocative, imprudent and unreasonable. I regard the pursuit of the criminal proceedings as strategic and of adverse reflection upon the applicant’s ability to put the best interests of the child first.

The Court’s power to make a parenting order – s.65D

The Court’s power to make an order in the present case is identified under s.65D of the Act. This gives the Court power to make such parenting order as the Court thinks proper. It is relevant in that regard under section 65D(3)(a) of the Act, that the Court must hear and determine the application as soon as practicable.
It is not irrelevant in the present case that these proceedings have been on foot for some time, and it is unfortunate, albeit I find minor, incident that occurred on 10 September 2016 might have been avoided had the final proceedings been heard and determined earlier.
That incident, also weighed against adjourning the proceedings in circumstances where the mother became unrepresented, given that the matter had been fixed for a final hearing.
It is also important for the Court to take into account s.65DA of the Act which is as follows:-
Parenting orders
(1) This section applies when a court makes a parenting order.
(2) It is the duty of the court to include in the order particulars of:
(a) the obligations that the order creates; and
(b) the consequences that may follow if a person contravenes the order.
(3) If any of the persons to whom the order is directed is not represented by a legal practitioner, it is also the duty of the court to explain to the person, or to each of the persons:
(a) the availability of programs to help people to understand their responsibilities under parenting orders; and
(b) the availability and use of location and recovery orders to ensure that parenting orders are complied with.
(4) The court may cause to be prepared, and given to persons to whom a parenting order is directed, a document setting out particulars of the matters mentioned in paragraphs (3)(a) and (b).
(5) If a person to whom the order is directed is represented by a legal practitioner, the court may request the practitioner:
(a) to assist in explaining to the person the matters mentioned in paragraphs (2)(a) and (b); and
(b) to explain to the person the matters mentioned in paragraphs (3)(a) and (b).
(6) If a request is made by the court to a legal practitioner under paragraph (5)(a) or (b), it is the duty of the practitioner to comply with the request.
(7) Failure to comply with a requirement of, or with a request made under, this section does not affect the validity of a parenting order.
(8) Any matter that is required by this section to be included in a parenting order or any explanation that is required by this section to be given to a person is to be expressed in language that is likely to be readily understood by the person to whom the order is directed or the explanation is given.
The Court will ensure that the particulars referred to are included in the orders that the Court makes identifying the consequences that may follow if a person then contravenes the orders.

General requirements for counselling before parenting order made – s.65F

This is a case where the requirements, as the Court understands it, of s.65F of the Act have been met. In any event, the Court is satisfied that it is in the best interests of the child to make a final parenting order forthwith in light of the fact that the matter was fixed for hearing and, given that there had been served a consultant’s report consistent with the orders earlier made by the Court.

Special conditions for making parenting order about whom a child lives with – s.65G

The Court also takes into the account of requirements of s.65G of the Act which relevantly is as follows:-
Special conditions for making parenting order about whom a child lives with or the allocation of parental responsibility by consent in favour of non-parent
(1) This section applies if:
(a) a court proposes to make a parenting order that deals with whom a child is to live with; and
(b) under the order, the child would not live with a parent, grandparent or other relative of the child; and
(c) the court proposes to make that order with the consent of all the parties to the proceedings.
(1A) This section also applies if:
(a) a court proposes to make a parenting order that deals with the allocation of parental responsibility for a child; and
(b) under the order, no parent, grandparent or other relative of the child would be allocated parental responsibility for the child; and
(c) the court proposes to make that order with the consent of all the parties to the proceedings.
(2) The court must not make the proposed order unless:
(a) the parties to the proceedings have attended a conference with a family consultant to discuss the matter to be determined by the proposed order; or
(b) the court is satisfied that there are circumstances that make it appropriate to make the proposed order even though the conditions in paragraph (a) are not satisfied.
I am satisfied that in the present circumstances that there has been the necessary conference with a family consultant. Further, I am satisfied insofar as it be the case that such has not taken place, ~~but~~ the circumstances of the present case make it appropriate to make the proposed final orders.

Consideration of the child spending equal time or substantial and significant time with each parent in certain circumstances – s.65DAA

I take into account the requirements of s.65DAA of the Act in respect of the importance of the child’s parents having equal shared parental responsibility for the child. In this regard, there is common ground between the parties in the competing applications that have been filed, and the Court proposes to make an order that the parties equally share parental responsibility in relation to the child born (omitted) 2013.

Consideration of s.65DAA(1)

The Court has taken into account consideration of the child spending equal time with each of the parents and whether that is reasonably practicable, given the young age of the child. Given the young age of the child, the circumstances remain one in which the child living with the mother is I find, in the best interests of the child.
The Court also takes into account the importance of taking into consideration an order that it provides for the child to spend equal time with each of the parents. For the reasons given, it is one where the Court is satisfied that the best interests of the child remain with the child living with the mother, and for a progressive meaningful relationship with the father in the interaction with the child as proposed to be made in the orders of this Court.

Consideration of s.65DAA(2)

The Court takes into account the mandatory considerations under s.65DAA(2) of the Act, in the circumstances of the present case. These include consideration pursuant to s.65DAA(2)(c) of the Act whether the child spending substantial and significant amount of time with each of the parents would be in the child’s best interest. A further consideration pursuant to s.65DAA(2)(d) of the Act is whether the child spending substantial and significant time with each parent is reasonably practical and if it is, pursuant to s.65DAA(2)(e) of the Act consider making an order to provide or include provision for an order for the child to spend substantial and significant time with each of the parents.
The Court proposes to make orders that will include an opportunity for substantial and significant time by the father with the child, even though the child is living with the mother.

Consideration of s.65DAA(3)

The Court takes into account in relation to s.65DAA(2) of the Act, the considerations identified in s.65DAA(3) of the Act and will make orders in relation to the days and holidays for that substantial and significant time in respect of the father. The Court will make orders to allow the father to be involved in the child’s daily routine and the occasions and events that are of particular significance.
The Court also takes into account the need for the child as identified in s.65DAA(3)(c) of the Act to spend time with the parents to be involved in the occasions and events that are of special significance to that particular parent.

Consideration of s.65DAA(5)

The Court has taken into account the consideration of the factors identified in s.65DAA(5) of the Act as to whether it is reasonably practical for the child to spend equal time or substantial and significant time with each of the child’s parents, and has regard to the mandatory factors referred to. The Court notes on the evidence that the parents live relatively close to each other or to the grandmother’s house.
The Court takes into account the parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each parent by facilitating an increasing regime by the parents under a written signed agreement by both parties, as well as the orders proposed by the Court.
The Court also takes into account the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in making arrangement proposed by the Court. It is of significance in that regard, that the parties have been able to adhere to an arrangement since September, albeit the Court accepts that has been involving an independent third party.
The Court is confident having seen both the mother and the father in the witness box, that both will cooperate with each other in ensuring that the parenting order made by the Court is implemented without friction or further conflict between either parent, any other person and a parent or the child. The Court is also confident that the parents will progress a plan in relation to telephone contact between the child and in particular, the father.

Consideration of the impact that the proposed order will have on the child – s.65DDA(5)(d)

The Court takes into account under s.65DDA(5)(d) of the Act, the impact that the proposed order will have on the child. That impact is one where there is a preservation of the child living with the mother that the Court is imposing, albeit not requiring the mother to live with the grandmother.
The Court has identified the other matters above that it considers relevant in relation to it being reasonably practicable for the child to spend substantial and quality and significant time with the father as formulated in the orders by the Court.
So far as the requirement to have regard to any parenting plan, it is apparent on the evidence before the Court that the original plan between both parents was that the child would live with the mother because the father was working full-time. The proposed orders by the Court are consistent with that original plan and also ones which the Court is satisfied are in the best interests of the child. The Court also takes into account the orders that had earlier been made by the Family Court of Australia.

Effect of a parenting order that provides for shared parental responsibility – s.65DAC

The Court also takes into account the considerations under s.65DAC of the Act which relevantly provides as follows:-
Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
In the present case, the shared parental responsibility is one in respect of which the Court proposes to make orders dealing with the importance of major long-term decisions or issues being dealt with jointly. The parties are to consult with each other in relation to those long-term issues and make a genuine effort to resolve those issues in relation to the long-term issues.
The Court has also taken into account the discussion of the factors to which the Court has referred in Standish & Standish [2012] FamCA 443 and the submissions made on behalf of the applicant.

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Judge Street.

Date: 9 December 2016

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Nimmo and Bush (No.3) [2016] FCCA 3151

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Standish and Standish [2012] FamCA 443

[2016] FCCA 3151

15 November 2016

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