NORTHAM & LOWREY (No.2)

[2020] FCCA 374

FEDERAL CIRCUIT COURT OF AUSTRALIA

NORTHAM & LOWREY (No.2) [2020] FCCA 374

Catchwords:
FAMILY LAW – Parenting – where child with special needs due to autism spectrum disorder – where child lives with mother and spends time with father –where father has history of non-compliance with court orders and refusal to cooperate with mother – mother sought an order for sole parental responsibility in relation to certain matters and shared parental responsibility for all other matters – where vulnerable child requiring supervision and protection – where family violence – where denigration of mother by father – orders for child to live with mother and spend time with father under strict conditions.

Legislation:

Family Law Act 1975 (Cth), ss.4AB(1), 60CC , 60CG, 61DA, 62B, 65DA, 65DAA, 65DAC, 102NA
Domestic and Family Violence Act 2007 (NT)

Applicant: MS NORTHEM

Respondent: MR LOWREY

File Number: DNC 75 of 2015

Judgment of: Judge Young

Hearing date: 31 January 2020

Date of Last Submission: 31 January 2020

Delivered at: Adelaide

Delivered on: 24 February 2020

REPRESENTATION

Counsel for the Applicant: Ms Bowen

Solicitors for the Applicant: Bowen's Lawyers, Barristers & Solicitors

The Respondent: In Person

Counsel for the Independent Children's Lawyer: Mr Stirk

Solicitors for the Independent Children's Lawyer: Povey Stirk Lawyers & Notaries

UPON NOTING

A.The child X born … 2010 (“X” or “the child”) has special needs due to Autism Spectrum Disorder and Global Developmental Delay.

B.X has special needs and there is a need for cooperative parenting between the parents to ensure X:

(a)is provided with a secure, safe and structured environment;

(b)is supervised at all times;

(c)has consistency in her routine;

(d)is supported to manage changes in her routine;

(e)is supported in maintaining her grooming, hygiene and personal care;

(f)is supported in learning and developing to meet all of her developmental milestones to achieve her full potential.

(g)has coordinated parenting and supervision by her parents and adults supporting her.

(h)

THE COURT ORDERS:  

Decisions about X

1. Parental responsibility will be allocated between the parents in the following manner:

   (a)The parents shall have shared parental responsibility for X born … 2010 (“X” or “the child”) in relation to major long term issues about:

   (i)X’s name;

   (ii)Changes to X’s living arrangements that make it significantly more difficult for the child to spend time with a parent; and

   (iii)X’s religious and cultural upbringing.

2. The mother shall have parental responsibility for X in relation to all other major long term issues including:

   (a)X’s education; and

   (b)X’s health and developmental needs;

   on the condition that:

   (i)The mother will contact the father in writing and provide her views about any such issue;

   (ii)The mother shall consult with the father with regard to any such issue;

   (iii)The mother and father will make a genuine effort to come to a joint decision about any such issue; and

   (iv)If no agreement is reached between the parties, then within 14 days the mother shall make the final decision and advise the father in writing of the decision about any such issue.

Living with and spending time with  

1. X shall live with the mother.

2. X shall spend time with the father every second Saturday from 12 noon to 5 pm at a location which is suitable for X’s needs.

3. X shall spend time overnight with the father, subject to the father:

   (a)Obtaining and maintaining secure, stable and suitable accommodation to meet X’s needs (“suitable accommodation”). To that end, the mother shall assist the father in accessing an occupational health and safety specialist to provide advice and assistance to the father to secure the home (by, for example, installing child proof locks on all entrance points into the accommodation as well as external gates and a secure perimeter and pool fencing to prevent X wandering away);

   (b)Enabling the mother (or her nominee) to undertake an inspection of the father’s accommodation and speak to any co-tenants or other occupants, to assess the safety and condition of the father’s accommodation prior to X spend time there;

   (c)Ensuring X has her own room and bed in which to sleep; and

   (d)Subject to the mother being reasonably satisfied that the father has suitable accommodation.

4. Subject to the father complying with order 5 above the child shall spend every second weekend, commencing Saturday 7 March 2020, from Saturday 9 am to Sunday 12 noon with the father.

5. If the father complies with order 6 above for a period of 6 months, and subject to continued compliance with order 5 above, the child is to spend time with the father every second weekend from after school, with the father to collect the child from school, on Friday to Sunday 12 noon (with Sunday changeover at CatholicCare).

6. For the purpose of the child spending time with father, changeover shall occur, unless it is a school day Friday and the child is spending time with the father pursuant to order 7 above, at CatholicCare subject to CatholicCare being able to accommodate that time, failing which changeover will be at the nearest available time convenient to CatholicCare.

7. If the father withholds the child from the mother in breach of these orders for any substantial period, for example overnight, the child’s time with the father shall revert to the time as provided in order 4 above.

Special occasions

1. The child shall spend time with the father on special occasions as follows if she is not otherwise spending time with the father:

   (a)From 12 noon to 5 pm on Father’s day;

   (b)For no less than 5 hours on Christmas Day and Easter Sunday as agreed between the parties in writing or, failing agreement, from 12 noon to 5 pm; and

   (c)On X’s birthday, if a school day, from after school (with the father to collect the child from school) to 5 pm (with changeover at CatholicCare) and from 12 noon to 5 pm if a non-school day (with changeover at CatholicCare).

2. If the father withholds the child from the mother in breach of these orders for any substantial period, for example overnight, the child’s time with the father shall revert to the time as provided in order 4 above.

Mother’s holidays

1. Should the mother wish to spend block holiday time with X, she shall provide the father with 28 days’ notice and provide make-up time for the time X would have otherwise spent with her father.

Communication

1. X will communicate with the father via FaceTime, Skype or telephone as agreed, but if no agreement, between 5 and 5.30 pm each Monday and Wednesday, with the call to be initiated by the father.

2. X will communicate with the mother via FaceTime, Skype or telephone as agreed, but if no agreement, between 5 and 5.30 pm on Saturday if she is being cared for by her father.

Information

1. Each of the parties shall advise the other and keep the other advised of:

   (a)Their residential address;

   (b)Telephone numbers (including landline and mobile) at which they and the child can be contacted;

   (c)An email address to be used to communicate about the child; and

   (d)Shall notify any changes in such details within 48 hours.

Injunctions

1. That the parents are restrained from and an injunction is granted restraining the parents from:

   (a)Posting any reference to or about these family law proceedings or each other’s parenting on Facebook;

   (b)Denigrating each other or any member of the child’s family or persons of significance within the hearing or presence of the child or allowing others to do so;

   (c)Consuming illicit substances or alcohol to excess, whilst the child is in their respective care, or allowing the child to be around those who may be doing so;

   (d)Smoking or allowing others to smoke in the presence of the child;

   (e)Physically disciplining the child; and

   (f)Leaving the child unsupervised or unattended.

Parental collaboration & coordination

1. The father shall also undertake the following whilst X is in his care:

   (a)Attending properly or prompting X to attend to her own hygiene, grooming and remaining appropriately clothed;

   (b)Ensuring X’s personal physical space and boundaries are safe and respected, having particular regard to her ongoing development; and

   (c)Ensuring X receives balanced, healthy and low sugar meals.

2. Each parent shall inform the other of any specialist parenting programmes or courses they are undertaking which assists them in learning about and managing X’s disability, special needs, behaviour management, education and skills development.

3. Each parent shall liaise with the other about disciplinary or behaviour management issues in order to ensure consistency between household and parenting styles and shall consult with X’s teachers about the best way to do this in the event of differences of opinion.

4. The parents shall exchange emails regularly up-dating the other parent about matters such as:

   (a)Self-management and behaviours:

   (i)Types of behaviour, triggers, calmers & reinforcers, problem solving, supports, emotional health & regulation;

   (b)Physical needs & skills:

   (i)Visual, auditory, gross & fine motor skills, tone & reflexes, coordination & supports;

   (c)Personal care skills:

   (i)Bathing, washing teeth, brushing hair, dressing;

   (d)Meal times, dishes, requirements:

   (i)What types of foods, how to get X to try new things, reinforcing and encouraging her to do so;

   (e)Communication skills:

   (i)Expressive, receptive, social, and supports needed/used.  Sharing of stories, books or films X is using to help her develop her skills;

   (f)Social skills:

   (i)How X interacts with the other parent, other adults or children and sharing any concerns about personal boundaries or behaviours not appropriate in a social setting;

   (g)School & extracurricular events:

   (i)Parent teacher appointments, concerts, recitals, awards ceremonies, graduations or presentations;

   (h)Specialist appointments:

   (i)For example, paediatricians, occupational therapists, speech pathologists and other professionals with whom X engages; and

   (i)X’s special skills:

   (i)For example, (omitted).

Informing the other parent & authorities

1. Each party shall:

   (a)Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the child and, authorise such treating practitioners to provide the other parent with information that they are lawfully able to provide about the child;

   (b)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child; and

   (c)Inform the other parent as soon as possible of any medical emergency involving the child which requires treatment, with such information to include the name and address of any medical practitioner who provides any diagnosis or treatment to the child, and the parent shall authorise such practitioner to speak directly with the other parent.

2. Upon provision of these orders to the Principal or Coordinator of any educational facilities or third party providing extracurricular activities in which the child is enrolled, the relevant individual or body are hereby authorised by this order to provide the parties with any information about the child’s progress and related activities and supply the parties with copies of photographs, certificates, awards, reports and any other documents relating to the child, at the request and cost of the parent requesting.

3. Upon provision of these orders to all treating medical practitioners and allied health providers of the child, the practitioners or providers are authorised by this order to provide all medical history, information, reports, diagnosis and any other relevant information about the child’s welfare, development and progress, at the request and cost of the parent requesting.

4. That pursuant to section 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A attached hereto, and those particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Northam & Lowrey (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 75 of 2015

MS NORTHEM

Applicant

And

MR LOWREY

Respondent

REASONS FOR JUDGMENT

1. This is a parenting application about X who is 9 years old.  X has been diagnosed with Level 3 Autistic Spectrum Disorder and Global Development Delay.  She is significantly behind in her language development and is not yet numerate or literate.  She has a history of challenging behaviours including biting, kicking, removing her clothes and escaping supervision.  She is a vulnerable child who requires supervision and protection.  She presently attends a special school in Darwin.

2. X lives with her mother and there is an order for her to spend supervised time with her father at CatholicCare children's contact centre following suspension of unsupervised time orders. Those orders were suspended on 10 September 2019 after the father withheld the child from the mother in breach of orders.  The father has refused to attend CatholicCare and consequently the child has not spent time with the father since September 2019.

3. The position of the mother in her outline of case at trial was that the parties should have shared parental responsibility for the child except for “education” and the child’s “health and developmental needs” for which she should have sole parental responsibility. She sought orders that the child spend supervised time with the father, apparently in perpetuity. However, in consecutive paragraphs of her trial affidavit the mother proposed that the child spend time with the father once a month supervised at CatholicCare (paragraph 40) and “on one occasion each month on a weekend at his place of residence provided such residence is suitable to accommodate for her special needs, to safeguard her safety, to provide appropriate food for her, and to ensure a hygienic environment” (paragraph 42).  This inconsistency was not reconciled at trial and, when asked in her oral evidence, the mother made another proposal: that she would supervise the child’s time with the father.

4. The father’s position was unclear from his outline of case document which told me only that parental responsibility, with whom the child is to live and changeover arrangements were “in dispute”.

5. The independent children’s lawyer sought orders for the mother to have sole parental responsibility and for the child to live with the mother. He also sought orders for the child to spend supervised time with the father, apparently permanently, at CatholicCare at “times and dates as directed by that service”. However, at the trial the independent children’s lawyer proposed in oral submissions that the child spend limited unsupervised day time with the father. The reason for the change of position was not entirely clear but possibly acknowledged the difficulties associated with orders for permanent supervision.   

6. The background to the matter is complex.  The mother is 34 years old. X is the eldest of her five children.  The mother has four younger children, from two other relationships, including K who is seven years old and who has lost sight in both eyes due to J Disease.

7. The father is 55 years old. He has three adult biological children from a previous relationship.

8. The parties were in a relationship between 2009 and 2010, resulting in the birth of X.  The parties never lived together.  Between 2010 and 2015, when the mother commenced proceedings, the mother and father appear to have had a reasonably cooperative relationship.  X spent extended periods of time in the care of the father, particularly while the mother travelled to Sydney with K for medical treatment.

9. However, this period of cooperation was punctuated by a number of significant events. In November 2014 X ran away while she was in her father's care.  The police were called by the mother who found the child three hours later about one kilometre from the father's home near a local creek.  The father said the child “escaped” while he was in the shower. A report was made to the child welfare authorities who noted that the living conditions in the father's home were unsatisfactory. They made a finding that the child had been neglected by the father, principally reflecting his failure to adequately supervise the child at the time she ran away. 

10. On two occasions in February 2015, on consecutive days according to the father, the child escaped the father’s supervision.  On one occasion the child ran away while the father was sleeping. On the other occasion the father said he was in the shower and the child managed to get out through a locked door because, unknown to him, the lock was defective.  The facts were a little unclear in evidence but on one of these occasions she was found walking naked in the street near the father's home. On the other of these occasions she was found on the Suburb L foreshore. On this occasion, and perhaps on both occasions, she was found by police and returned to the father.

11. Following this the child welfare authorities took a further interest in the matter. The mother, possibly encouraged by the child welfare authorities, made an application for parenting orders, seeking sole parental responsibility and an order that the child live with her.  The father filed a response seeking sole parental responsibility and that the child live with him. In December 2015 orders were made that the child spend supervised time with the father at CatholicCare.  In March 2016 the child went missing at CatholicCare for a few minutes during a supervised visit.  She was apparently in the care of the father at the time but managed to leave the contact centre through a staff door. 

12. In September 2016 orders were made for the child to spend time with the father in a graduated regime.  In May 2017 orders were made that the child spend time overnight with the father once a fortnight if he provided evidence that he had suitable accommodation.  In July 2017 the father withheld the child overnight, claiming he was prevented from returning the child because of car trouble.  At the time the child was meant to be staying with a maternal cousin while the mother took K interstate for medical treatment. Four days later the father again withheld the child overnight claiming he misunderstood the changeover time. In September the child was withheld again by the father for five nights while the mother was in Sydney with K.

13. In September 2017 the child welfare authorities received a notification concerning apparent "sexualised behaviour" displayed by the child upon return from visits with the father.  The matter was investigated and the parents interviewed.  No finding was made.

14. On 19 September 2017 orders were made suspending the child's overnight time with the father.  An order was made that both parties file affidavit material detailing their care arrangements for the child and also that the father provide detailed information about the suitability of his housing arrangements.

15. It should be noted that the mother told the family consultant during the preparation of a family report dated 22 December 2017 that she did not have any concerns that the father may have sexually abused the child.  It should also be noted that during the child welfare investigation it was revealed that the father had been charged with the indecent assault of two female children of his previous partner in 2000. He was acquitted of these charges after a Court trial.  There was no clear evidence about the nature of the allegations against the father.  He claimed that the charges arose out of false claims.  He said the allegations were that he had spanked the children on their bottoms. No more detail was provided. In view of the father's unchallenged evidence of his acquittal and the failure of the mother or the independent children's lawyer to provide further evidence or pursue this matter, I do not propose to give it any further consideration. 

1. The December 2017 a family report recommended that the child live with the mother and spend day time only with the father, unless the father was able to provide appropriate accommodation.  The family consultant took the view that repeated breaches of orders by the father merited an order for sole parental responsibility to the mother.

2. On the 15 February 2018 the matter was listed for trial but was not reached.  On that day the parties negotiated interim orders which provided for the child to spend regular time with the father, including overnight time if he could secure suitable accommodation. In May 2019 the father advised the independent children's lawyer that he was unable to retain his accommodation and was intending to travel interstate for work. The plan to travel interstate for work was apparently abandoned and a short time later the father advised that he had secured other suitable accommodation and proposed to have the child resume overnight time with him. However, a dispute arose about whether that accommodation was suitable.  That dispute was resolved on 26 June 2019 when the father agreed that he no longer resided at the premises that had been previously inspected and approved by the mother.  The father agreed that, in the circumstances, the regime would revert to that provided for under order 12 of 15 February 2018, which provided for the child to spend day time only with the father. 

3. The matter came before me on 26 June 2019 because the father had withheld the child in the following circumstances.  On Thursday 20 June 2019 the parties had arranged for the father to take the child to a concert at her school and she was to be returned that evening. She was not returned. On the Friday the father was advised by the independent children’s lawyer, in the clearest terms, that he was in breach of orders and the child should be returned. The father asserted that he had car troubles and there were various other reasons why the child should not be returned.  He also asserted that he was not in breach of orders because the orders provided for the child to spend overnight time with him on that weekend. 

4. I held an interim hearing on 10 September 2019 where these assertions were tested and the parties cross-examined.  The father asserted that he was not in breach of orders because his accommodation had been previously inspected and approved by the mother and, he argued, the overnight time should be considered to have resumed. It transpired in the hearing that the child and the father did not in fact stay in those premises. The father said the police had been called, for some unexplained reason, by or in relation to the residents at those premises, so the father and the child in fact stayed at a motel on the Friday and Saturday night.  The child was delivered back to the mother on Sunday following that hearing.  I did not accept the father’s claims. I found that he was in breach of orders and his breach was deliberate and without justification.

5. I also made orders giving effect to the agreement reflected in the consent orders of 15 February 2018. These provided that in the event of a breach of orders by the father, the child was to spend supervised time with the father at CatholicCare.  Following that order the child has not spent any time with the father because the father has refused to attend CatholicCare. He has offered a variety of reasons, referring to the fact that the child had “escaped” on an earlier occasion at CatholicCare although, it appears, the child was under his supervision.  He also complained that CatholicCare was an institution of the Catholic Church and he objected that the Church had a history of protection of paedophiles.  It is to be noted that no such allegation was made against CatholicCare or its staff. He also complained that the staff were "feminists and women".  In short, the father has offered no justifiable reason for his decision not to permit the child to spend time with him.

6. The author of the family report from September 2016 made these observations of the father:

   During discussion of these issues Mr Lowrey was not only critical of CatholicCare but was also critical of every other agency he dealt with in the course of the current proceedings.  He described the attitude of staff from the Department of Children and Families as “hate based” in their dealings with him.  He viewed the Police and the Courts as also displaying bias against him and referred to unresolved grievances he had with these agencies as a result of work-related matters.  He also expressed critical attitudes towards the NT Department of Housing and the NT Labor Party, also alleging bias and misconduct on the part of both agencies.  The discussion of these issues gave the impression that Mr Lowrey was highly primed to perceive injustice and conspiracy and was willing to challenge authority if he felt his personal needs and contributions had not been acknowledged or acted upon.  

7. Later the report’s author said:

   Mr Lowrey is an intelligent and clever individual who is strongly independent and anti-authoritarian in his attitude towards others.  His physical presentation suggests for example that he gives little thought to how he is perceived by others and that compliance with accepted social norms is not something high on his agenda.  He is also inclined to be somewhat dismissive of the concerns of others and is reluctant to accept what might be deemed valid criticism of his actions as a parent, tending instead to see others as overreacting or as having a biased, negative view against him.  His unwillingness to acknowledge personal responsibility for the occasions on which X has gone missing in his care is an example of this.  The point to be made here is that Mr Lowrey’s idiosyncratic attitudes are matters that strongly influence the dynamics of the parent’s relationship and their capacity to work together in parenting X.  In my opinion Mr Lowrey would do well to acknowledge that the mother has genuine reason for concern about his supervision and care of X (as do others), and that if he is going to be actively involved in the future care of X that he needs to be more vigilant in supervising her and to attend more closely to her physical care.  Failure to do so will most likely have an adverse impact upon the future of his contact with X, and may pose a risk of harm to X, that could invite further intervention by welfare authorities, particularly if she should go missing again or suffer harm whilst in his care. 

8. I accept these observations.  The father’s attitude had changed little or not at all by the time of the trial in February 2020.  For example, the father had again deliberately breached orders by withholding the child. He breached an injunctive order, to which he had consented on 15 February 2018, restraining him from posting reference to the family law proceedings on Facebook.  On 3 December 2019 he posted a message on Facebook as follows:

   I love my X.  I am absolutely horrified at what the imbeciles in the Federal Circuit Court have done to her.  She has been unlawfully isolated from me for nearly 3 months by the hate filled lawyers.  They have been documented as liars, [the independent children’s lawyer] is guilty of perjury and was whining in her letter to the court that it was a mistake and not a lie.  Federal Circuit Court Judge Young had the opportunity to rectify the problem a week ago and yet did absolutely nothing to help X.  I questioned him regarding Mr M, a confirmed rapist with a thing for little boys.  I asked how he knew Mr M but he turned to jelly and could not answer the question or declare his conflict of interest.  The lying lawyers put on a disgusting display trying to avoid taking responsibility for their lies by attacking X.  The whole affair was absolutely disgraceful with the judge even declaring that he considers himself above the laws of the Northern Territory and refusing to look at the evidence I brought along as proof.  I pointed out the corruption I had uncovered in the very same court room, corruption that has remained unresolved for many years.  The system of law in the Northern Territory has failed dismally and there is no one that wants to fix it.  It seems that the easier solution is to change nothing and stick with lies, deceit, corruption and child abuse that goes all the way to the top.  It would be so simple if only I could give up my daughter and leave her to the mercy of these paedophile enablers.  I love you X.  I’m coming for you my sweety.  But first I need to deal with some very evil criminals who think nothing of abusing children in any way necessary to hide their crimes.

9. It should be noted that I do not recall Mr Lowrey making any reference to Mr M in the proceedings beyond a passing reference in an affidavit relied on by Mr Lowrey in the hearing on 10 September 2019. In that affidavit he said that he had been living in the spare room at Mr M’s home and that X enjoyed spending time there.  As far as I am aware, I have not met Mr M and I do not know him. Mr Lowrey did not question me about him nor did Mr Lowrey suggest I had any “conflict of interest” flowing from my (non-existent) knowledge of Mr M.  The remainder of the post speaks for itself. 

10. Perhaps more to the point, the Facebook post is a flagrant disregard of court orders.  I asked Mr Lowrey whether he was aware of the order restraining the parties from posting reference to the proceedings on Facebook.  He said that he was aware of the order and he had considered whether he would be in breach of the order by making the post.  He told me he did not consider the post to be in breach of the restraining order.  He did not explain how he reasoned to that conclusion.  He told me that he had no privacy settings on his Facebook account and the comment was, accordingly, published to the world.

11. On 20 September 2019 a protective order under the Domestic and Family Violence Act was made against Mr Lowrey by Judge N in Court O in Darwin.  He was ordered not to intimidate, harass or abuse the mother.  The judge found that there was no history of physical violence between the parties but that during a dispute at changeover of the child on 28 May 2019, the father had said to the mother, “I will show you what domestic abuse is”.  The judge described it as a “sinister threat”.  As this constituted family violence under the definition in the Family Law Act (“the Act”), and a domestic violence order was in effect at the time of trial, Mr Lowrey was prohibited from cross-examining the mother by reason of section 102NA of the Act. Some months before the trial I advised Mr Lowrey of the existence of the Commonwealth scheme for litigants such as himself and recommended that he approach the Legal Aid Commission without delay to apply for assistance. Mr Lowrey did not follow this advice and did not apply for assistance. He appeared at the trial with a person whom he said was a law student. He proposed that this person conduct the cross-examination of the mother. I did not permit that and consequently the mother was not cross-examined by Mr Lowrey, although she was cross-examined by the independent children’s lawyer. Mr Lowrey was unable to undertake any effective cross-examination of the only other witnesses, the two family consultants and a teacher from the child’s school.

12. Mr Lowrey’s attitude to the mother was undisguised.  As an example, he was asked in cross-examination whether the mother had requested him not to give sweets to the child when she was in his care.  He answered, “Yes, I ignore it.”  When further questioned about this, he appeared to acknowledge that an excess of sugary foods may be unhealthy for the child.  I concluded that the father was not indifferent to the question of the child’s diet or health, but that any request of this kind from the mother, even if reasonable, was likely to be met, initially at least, with disdain and rejection from the father.  When pressed about his answer, the father said that “I ceased cooperating in February 2015 with the mother”.  February 2015 was the time of the mother’s application to the court for parenting orders.

13. I make the following findings about the father.  The father is an unreliable witness and historian.  Much, if not all, of his evidence was directed to deflecting responsibility for his own actions and conduct.  He was, however, frank in his disdain for the mother.  The father is resistant to any authority and many of his views seem to have elements of paranoid delusion.  He has an established history of deliberate non-compliance with court orders.  He is likely to be non-compliant with court orders in future.  The father prioritises his own views, wishes and interests over the best interests of the child.  An example of the latter is the father’s refusal to permit the child to spend time with him at CatholicCare since September 2019. I also find that the father has, at times, failed to properly supervise the child and, although the child’s tendency to escape supervision has decreased, this remains a risk. I also find that the father has struggled to find suitable accommodation for himself and the child and this is likely to be a continuing difficulty for him. The father also gave unsatisfactory evidence about his cannabis use while the child was in his care. He did not deny cannabis use and at one point he said that if he intended to consume cannabis while the child was in his care, he ensured that the child was supervised by someone else. Who this supervisor might be or the quality of their supervision was not stated. 

14. In some respects, the most favourable evidence for the father came from the mother. She acknowledged that the child was strongly attached to the father and that the child enjoyed her time with the father. She acknowledged that the father loved the child. She did not accept that the child was at risk of sexual abuse in the father’s care. She was, however, highly critical of the father’s standard of care of the child, particularly his history of inadequate supervision.

15. The family consultant who authored the most recent family report observed that the child was happy and excited to see her father. The father interacted in kindly and energetic fashion with the child and she appeared happy and confident in the presence of her father.

16. I find that the child is strongly attached to the father and they have a positive and beneficial relationship in many respects.

17. I accept the mother is a reliable witness. I accept the entirety of her evidence. She did not appear motivated by hostility or antagonism to the father. On the contrary she seemed forgiving and even indulgent in some respects. The mother’s concerns focussed on the standard of care offered by the father, which I find are well-founded. She is also concerned with ensuring that the father complies with orders of the court.

18. There was no evidence that the child was not well-cared for by the mother. The father tried to raise late allegations that the child had been physically abused by the mother, but there was no evidence to support such a claim and I reject it. The mother and her other children occupy a three bedroom home. There was no criticism of the standard of her housing. The evidence from the child’s special school teacher was that there were no concerns about the standard of the mother’s care and the child was doing well at school.

19. The agreed position of the parties is that the child has a good relationship with her father and enjoys his company. I am satisfied that, if the child’s other interests are protected, it is in her interests to have a relationship with her father. However, the challenge in this case stems from the father’s consistent record of non-compliance with orders, his disdain for and denigration of the mother, his refusal to parent cooperatively with the mother, concerns about his supervision and care of the child, and his inability to secure suitable accommodation for the child to spend overnight or extended time with him. The father’s non-compliance and lack of cooperation have the tendency to undermine the mother’s parenting capacity, particularly given her responsibility for four other children, including one who has suffered from a form of cancer and is now blind. There were some indications that the mother has suffered from anxiety and depression at times. If so, the father’s conduct may well exacerbate any such condition and otherwise make her position as primary carer for the child more difficult. The concerns about the standard of care and supervision by the father are also serious.

20. Ultimately, I have concluded that great weight needs to be given to supporting and protecting the mother’s position as the primary carer for the child. Regrettably, she needs to be protected from the conduct of the father, which has the tendency to undermine that position and her parenting capacity.    

21. In reaching a decision about a parenting matter a court must follow the legislative pathway in Part VII of the Act.

22. In determining what is in the best interests of a child the court must consider the matters in subsections (2) and (3) of section 60CC of the Act.

23. Turning to subsection 60CC(2), the primary considerations in determining the best interests of the children are:

    (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

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

    When applying section 60CC(2) factors, the court is to give greater weight to the consideration set out in (2)(b).

24. I am satisfied that there is benefit to the child in having a meaningful relationship with the father. However, I am satisfied that it is necessary to give greater weight to the factors in (2)(b), in particular the need to protect the child from neglect occurring through inadequate supervision in the father’s care, and to protect the child from psychological harm flowing from the father’s general hostility to the mother and unwillingness to comply with court orders. 

25. I will now turn to the additional considerations in subsection 60CC(3).

26. In relation to (a), the children’s views, X has not expressed views.

27. In relation to (b), the nature of the relationship of the child with her parents and any other persons, it is not in question that X is attached to both parents and enjoys the company of each.

28. In relation to (c), the extent to which each of the parents has taken, or failed to take, the opportunity to participate in decision-making about major long-term issues for the children and spending time with and communicating with the children, both parents have been involved in decision making about the child. The father takes an interest in the child’s schooling and discusses the child’s progress with her teachers, as does the mother. However, I am satisfied that the father’s entrenched hostility to the mother means that cooperative parenting is impossible.

29. In relation to maintenance of the children under part (ca), there was little or no evidence about this but as the father said he was receiving Centrelink benefits his financial support is likely to be minimal. 

30. In relation to (d), the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents or any other child or other person with whom they have been living, no substantial change in her circumstances is contemplated.

31. In relation to (e), the practical difficulty and expense of the children spending time with and communicating with a parent, and whether that will substantially affect the children’s right to maintain personal relations and direct contact with both parents, the parents live relatively close to each other and there is no practical difficulty in the child spending time with the father. The difficulty relates to the father’s history of withholding the child and other non-compliance with orders. In my view it is necessary that changeovers take place in a secure environment at set times. I consider it is necessary that changeovers take place at CatholicCare, which is about midway between the residences of the parties. The father objected to CatholicCare and proposed changeovers at the Suburb P police station. Given the history of conflict at changeover, the existing domestic violence order, and the need for set times I propose to order that changeover happen at CatholicCare.

1. In relation to overnight time with the father, the father does not currently have suitable accommodation. If the father is able to secure appropriate accommodation, and it is inspected and approved by the mother, I am satisfied it is in the child’s best interests to spend overnight time with the father. If he gives some practical indication over a trial period that he will comply with court orders, I propose to extend that time.

2. In relation to (f), the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs, I accept that both parents love the child and want the best for her. I am satisfied the mother can adequately care for the child. However, in my view the evidence shows that the father is not always able to put the interests of the child before his own wishes and desires. His refusal to attend CatholicCare to permit the child to spend supervised time with him is not reasonable or justified. The child is the loser.

3. In relation to (g) the maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child the court thinks are relevant, there is nothing requiring further consideration.

4. In relation to (h), the child is not an Aboriginal or Torres Strait Islander child.

5. In relation to (i), the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents, both parents love the child. The mother has steadfastly pursued the child’s best interests, including encouraging the child’s relationship with her father. The deficiencies in the father’s attitude to the child and the responsibilities of parenthood have been described above.

6. In relation to (j), any family violence involving the child or a member of the child’s family, there is no evidence of physical violence. The father has denigrated and insulted the mother and threatened her on one occasion at least. I accept that the father’s conduct, as described by Judge N in Court O, constituted family violence as defined in s. 4AB(1) of the Act.

7. In relation to (k), there is a current family violence order, extending to March 2020, that the father not harass, intimidate or abuse the mother. The facts on which the order was made have been outlined above. I infer from the making of that order that some measures are required to protect the mother at changeover and to shield the child from conflict. I propose to make orders that changeovers take place at CatholicCare, a children’s contact centre.

8. In relation to (m), any other fact or circumstance that the court thinks is relevant, some notifications have been made to the Northern Territory child welfare authorities as referred to above, but there was no other evidence on this issue.

9. Section 60CG requires the court to ensure that any order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence. The proposed orders will be consistent with the family violence order.

10. Given the finding of family violence the presumption of equal shared parental responsibility under section 61DA does not apply. 

11. The mother sought an order for sole parental responsibility in relation to health and education and shared parental responsibility in relation to other matters. Her trial affidavit did not explain why she sought such an order other than to say the father sometimes spoke to her in an abusive and denigrating way about the standard of her care of the child, including criticism of her attention to the child’s hygiene, such as cleaning teeth. In my view her evidence on this issue was unsatisfactory and lacking in detail. However, I am satisfied that the father is generally, or whenever he is inclined, uncooperative with the mother. He said as much in cross-examination, saying that he ceased cooperating with her in 2015 and also that he is inclined to ignore the mother’s requests, such as her perfectly reasonable request not the give the child sugary foods. In my view, this difficult and disdainful attitude is likely to make any attempt at consultation or joint decision making (as would be required by s. 65DAC of the Act) about such matters as the child’s health and education difficult, a waste of time. I am satisfied that the mother should have sole parental responsibility in relation to these matters, subject to an obligation to keep the father informed.

12. As I do not propose to make an order for shared parental responsibility it is not necessary to consider whether the child spending equal time or substantial and significant time with the father would be in the best interests of the child. Nevertheless, it is appropriate to address the criteria in s. 65DAA. I am satisfied that it is not in the best interests of the child and that it is not reasonably practicable that she spend equal time or substantial and significant time with the father. I am satisfied that the father does not have the capacity to implement such an arrangement because of his history of repeated breach of court orders, which I am satisfied is likely to continue into the future, and his inability to provide suitable accommodation. The father said that he was receiving Centrelink payments and would be able to find suitable accommodation in the future but in the absence of concrete evidence I am not prepared to accept that is the case.  I am also satisfied that the current and future capacity of the parents to communicate and resolve difficulties that might arise in implementing such arrangements is very limited. I am satisfied that any such arrangement is likely to lead to conflict and further breaches of orders by the father. I am satisfied that it is in the best interests of the child that her mother, her primary carer, is protected as much as possible from the effects of that.

13. Nevertheless, I am satisfied that, subject to these matters, it is in the child’s best interests that she have a meaningful relationship with her father. If possible she should regularly spend time with her father in a safe environment. I consider that every two weeks is appropriate. If the father is able to demonstrate a willingness to comply with orders and he has suitable and secure accommodation, including a separate room and bed for the child, I consider that the child should spend one overnight a fortnight with the father, extending to two nights if he demonstrates that he is willing and able to comply with orders. The mother should have the opportunity to inspect and approve any such accommodation. In general terms the orders I propose are similar to the orders consented to by the parties on 15 February 2018. If the father has suitable accommodation, as described, I propose to make orders that the child spend time with him from 9 am on Saturday to 5 pm on Sunday in alternate weeks, increasing to two nights after six months. Changeover will be at CatholicCare at these times or as near to these times as can be accommodated by CatholicCare. If the father is unable to provide suitable accommodation then the child is to spend time with him from noon to 5 pm on Saturday in alternate weeks. If the father is unable to provide suitable accommodation it appears the time will need to be spent in a public place and some limitation on the number of hours is necessary having regard to the child’s age and characteristics.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  24 February 2020