O’Laughlin and Akkad and Anor

[2019] FamCA 587

FAMILY COURT OF AUSTRALIA

O’LAUGHLIN & AKKAD AND ANOR [2019] FamCA 587

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – With whom a child communicates – Allegations of violence – Allegations of drug use – Allegations that the child is at risk in the unsupervised care of the mother and father – Orders that child live with the paternal grandmother – Orders that paternal grandmother and mother have equal shared parental responsibility for the child – Order that mother and father spend time with the child – Orders that mother and father communicate with the child – Specific Issues Orders – Injunctions.

Family Law Act 1975 (Cth) s 60CC

J v C in [1969] 1 ALL E.R. at 824
Yamada & Cain [2013] FamCAFC 64

APPLICANT: Ms O’Laughlin

1st RESPONDENT: Mr Akkad

2nd RESPONDENT: Ms Jerez

INDEPENDENT CHILDREN’S LAWYER: John Spence & Associates

FILE NUMBER: SYC 7227 of 2017

DATE DELIVERED: 15 April 2019

PLACE DELIVERED: Hobart

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 14, 15, 16, 17 & 21 January and 22 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gardiner

SOLICITOR FOR THE APPLICANT: Eales & Mackenzie

COUNSEL FOR THE 1ST RESPONDENT: In person

SOLICITOR FOR THE 1ST RESPONDENT:

COUNSEL FOR THE 2ND RESPONDENT: Mr Breeze

SOLICITOR FOR THE 2ND RESPONDENT: Ciagla Legal Solutions & Attorneys

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Maddox

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: John Spence & Associates

Orders

Previous parenting orders

1. All previous parenting orders in relation to B born … 2015 (‘the child’) are discharged.

Parental responsibility

1. As to parental responsibility for the child:-

   (a)Ms O’Laughlin (‘the mother’) and Ms Jerez (‘the paternal grandmother’) shall have equal shared parental responsibility for the child; and

   (b)the paternal grandmother shall keep Mr Akkad (‘the father’) informed as to all aspects of the child’s health, education and the like and shall discuss with him any decisions she might be making, with the mother, in relation to the child, although she is not bound to apply the views of the father.

Residence

1. The child shall live with the paternal grandmother.

Time with the father

1. The child shall spend time with the father as agreed between the father and the paternal grandmother subject to such time:-

   (a)not being during times when the child would otherwise be spending time with the mother; and

   (b)not being overnight or on more than two (2) days per week unless the paternal grandmother is present, and unless the mother has been given at least fourteen (14) days’ notice in writing be electronic means of the additional time and the arrangements that are being put in place for that time.

Time with the mother during 2019

1. From the date of these Orders until 28 January 2020 the child shall spend unsupervised time with the mother as follows:-

   (a)for eight weeks on alternate weekends from 10.00am Friday to 4.00pm Sunday, commencing the second Friday after these orders are made;

   (b)after the eight weeks the alternate weekend shall operate from10.00am Thursday to 4.00pm Monday and shall continue on that basis until 28 January 2020, subject to the following Christmas extensions;

   (c)if the alternate weekend is the weekend before Christmas Day then the time the child spends with the mother shall extend to 4.00pm on 26 December 2019;

   (d)if the alternate weekend is the weekend after Christmas Day then the time the child spends with the mother shall commence at 10.am on 26 December 2019 and conclude on Monday 30 December 2019 at 11noon; and

   (e)changeover shall be at the booking-in desk (start of time) or departure gate (end of time) at Sydney Airport.

Time with the mother from 2020 if she continues to live in Melbourne

1. If the mother remains living in Melbourne the parenting arrangements from the start of term 1 in 2020 shall be as follows:-

   (a)During school term:-

   (i)each alternate weekend from 10.00am Saturday to 4.00pm Sunday; and

   (ii)such alternate weekends to commence the first weekend after the commencement of school term if the child was primarily with the paternal grandmother the last week of the preceding school holiday period or the second week if the child was with substantially with the mother the last week of the preceding school holiday period.

   (b)During the School Holidays - from the commencement of the first term school holidays in 2020:-

   (i)for a period of one week commencing at 5.30pm on the second Saturday (middle weekend) of the term 1, term 2 and term 3 school holidays and concluding at 4:00pm on the last Sunday of the holidays in even numbered years; and

   (ii)from 10.00 am Saturday on the first day of the term 1, term 2 and term 3 school holidays and concluding at 4.00pm on the mid-holiday Saturday in odd numbered years;

   (c)During the Christmas/New Year school holidays as and from the 2020/2021 Christmas/New Year period:-

   (i)in each even numbered year (being the year at the start of the holiday period), from the 10.00am on the first Saturday of the school holiday period until 4.00pm on the mid-point Saturday; and

   (ii)in each odd numbered year from 10.00am on the mid-point Saturday until the last Saturday at 4.00pm.

   (d)Father’s Day/Mother’s Day:-

   (i)if the child is not spending the Mother’s Day weekend with the mother, the mother may elect (by giving at least six (6) weeks’ notice) to swap that weekend to either the weekend before or the weekend after, such election to be in writing (including by email or text message);

   (ii)in the event that the child is to spend Father’s Day with the mother, the paternal grandmother may elect to exchange that weekend for a weekend before or the weekend after, upon the paternal grandmother giving six (6) weeks’ notice to the mother in writing (including by email or text message).

   (e)Easter:-

   (i)if Easter falls within a mid-term school holiday then the child will live with or spend time with the mother or paternal grandmother with whom she would otherwise be living or spending time in accordance with these Orders; and

   (ii)if Easter does not fall within a mid-term school holiday period then the child will live with or spend time with the mother or paternal grandmother with whom she would otherwise be living or spending time in accordance with these Orders with such time to commence 4.00pm on the Thursday preceding Good Friday and conclude at 5.30pm on the Tuesday following Easter Monday.

   (f)Changeover to be at the booking-in desk (start of time) or departure gate (end of time) at Sydney Airport.

   (g)The mother is permitted to take the child to Melbourne during these times set out above.  The costs of such airfares to be at the mother’s expense. 

Time with the mother from 2020 if she chooses to live in Sydney

1. If the mother is living in Sydney the child shall live with the mother from the start of term 1 in 2020 as follows:-

   (a)During school term:-

   (i)each alternate weekend from Thursday after school or at 4.00pm on a non-school day to Sunday at 5:30pm; and

   (ii)such alternate weekends to commence the first weekend after the commencement of school term if the child was primarily with the paternal grandmother the last week of the preceding school holiday period or the second week if the child was with substantially with the mother the last week of the preceding school holiday period.

   (b)During the School Holidays from the commencement of the school holiday period at the end of the first term in 2020:-

   (i)for a period of one week commencing at 5.30pm on the second Saturday of the term 1, term 2 and term 3 school holidays and concluding at 5:30pm on the last Sunday of the holidays in even numbered years; and

   (ii)from after school on the last day of school of the term 1, term 2 and term 3 school holidays and concluding at 5:30pm on the mid-holiday Saturday in odd numbered years;

   (c)During the Christmas/New Year school holidays from the 2020/2021 Christmas/New Year period;

   (i)in each even numbered year (being the year at the start of the holiday period), from the conclusion of school (or 4.00pm) on the last day of the school term until 10.00am on the mid-point Saturday, and

   (ii)in each odd numbered year from 10.00am on the mid-point Saturday until the last Saturday at 5:30pm of the Christmas/New Year school holidays;

   (d)Father’s Day/Mother’s Day

   (i)if the child is not spending the Mother’s Day weekend with the mother, the mother may elect (by giving at least six (6) weeks’ notice) to swap that weekend to either the weekend before or the weekend after, such election to be in writing (including by email or text message); and

   (ii)in the event that the child is to spend Father’s Day with the mother, the paternal grandmother may elect to exchange that weekend for a weekend before or the weekend after, upon the paternal grandmother giving six (6) weeks’ notice to the mother in writing (including by email or text message).

   (e)Easter

   (i)if Easter falls within a mid-term school holiday then the child will live with or spend time with the mother or paternal grandmother with whom she would otherwise be living or spending time in accordance with these Orders; and

   (ii)if Easter does not fall within a mid-term school holiday period then the child will live with or spend time with the mother or paternal grandmother with whom she would otherwise be living or spending time in accordance with these Orders with such time to commence 4.00pm on the Thursday preceding Good Friday and conclude at 5.30pm on the Tuesday following Easter Monday.

   (f)If the time in with the mother commences or ends on a school day, the mother shall collect or return the child from or to school at the commencement or end of the time.

   (g)Unless agreed in writing, all changeovers which do not occur in school shall occur at McDonalds at Suburb O NSW.

2. The time the child spends with the mother and the father may be as otherwise agreed in writing (including by email and text communication) between mother and the paternal grandmother.  

Communication

1. The child shall have telephone communication with the mother or paternal grandmother with whom she is not living or spending time between 6:30pm – 7:30pm each Wednesday and Saturday. 

Changing behaviour program

1. As and from 1 May 2020 the father’s time with the child shall be subject to him enrolling and completing by that date a Men’s Changing Behaviour Program approved by the Independent Children’s Lawyer.

Injunction

1. The father is restrained from approaching within 200 meters of the mother and within 500 metres of McDonalds Suburb O at times of changeover between the mother and the paternal grandmother.

2. Each of the father and mother be and are restrained from consuming prescribed drugs without a prescription or consuming illegal drugs or be affected by illegal drugs or alcohol whilst the child is in their care.

3. Each of the father, paternal grandmother and mother shall be and are restrained from revealing or discussing either parent’s occupation with the child.

4. Each of the father, paternal grandmother and mother shall be and are restrained from abusing, demeaning or belittling the other parties or members of the other parties’ family in the presence or hearing of the child.

5. The mother be and is hereby restrained from bringing the child into contact or communication with Ms E.

Provision of Information

1. The paternal grandmother and mother shall keep each other informed as to their current residential address, email address and telephone numbers.

2. The father and the paternal grandmother shall keep each other informed as to their current residential address, email address and telephone numbers.

3. The mother and the paternal grandmother shall keep each other informed of any significant illness of the child.

4. Each party be authorised to consult any school, pre-school or medical health profession attended by the child.

Airport Watch list and removal of the child from Australia  

1. BY CONSENT:-

   (a)the mother, the father and paternal grandmother and their servants and agents are restrained from taking or sending or attempting to take or send the child from Australia without permission of a court exercising jurisdiction under the Family Law Act 1975;

   (b)the Marshall and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders;

   (c)the solicitor for the paternal grandmother shall immediately notify the Marshal and the Australian Federal Police Family Law Team at Sydney of these orders by telephone and shall as soon as possible provide a copy of these orders to the Marshal, the Australian Federal Police and the State Police; and

   (d)the Court requests that the Australian Federal Police place the child on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these orders.

Generally

1. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

2. All extant applications be dismissed, except any costs applications as between the parties.

3. As to the costs of the Independent Children's Lawyer within 60 days of this order:-

   (a)the mother pay the sum of $6,338.75 to Legal Aid Commission New South Wales being one half of the costs of the Independent Children’s Lawyer; and

   (b)the father pay the sum of $6,338.75 to Legal Aid Commission New South Wales being one half of the costs of the Independent Children’s Lawyer.

4. All Costs applications between the parties, if any, are to be dealt with in accordance with the Family Law Rules 2004 (Cth).

5. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

6. The appointment of the Independent Children’s Lawyer shall conclude six (6) months following the date of this order.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

CORRIGENDUM

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: SYC 7227 of 2017

Ms O’Laughlin

Applicant

And

Mr Akkad

First Respondent

Ms Jerez

Second Respondent

And

Independent Children’s Lawyer

JUDGE:  Benjamin J

DATE OF JUDGMENT:   15 April 2019

WHERE MADE:               Hobart

CORRIGENDUM:             22 August 2019

1. On the 15 April 2019 Reasons for Judgement were delivered and Orders were made, but were not formally taken out.  The parties were invited to make submissions as to the mechanical aspects of the Orders.

2. On 17 April 2019 the solicitors for the mother, Earles & Mackenzie, wrote to the Court seeking clarification of whether the mother’s time as specified in Proposed Order 5, being the 2019 time, is permitted to occur in Melbourne. 

3. The clear intent of that Order was the mother could and as such the Order was perfected without amendment.

I certify that the preceding three (3) paragraphs are a true copy of the Corrigendum of the Reasons for Judgement herein of the Honourable Justice Benjamin.

ASSOCIATE:            

DATED:                   22 August 2019

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: SYC 7227  of 2017

Ms O’Laughlin

Applicant

And

Mr Akkad

Respondent

And

Ms Jerez
Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are complex and difficult proceedings relating to parenting arrangements for a four year old child, B (‘the child’). 

2. The applicant is Ms O’Laughlin (‘the mother’), the child’s mother. The first respondent is Mr Akkad (‘the father’), the child’s father.  The second respondent is Ms Jerez (‘the paternal grandmother’), the child’s paternal grandmother, with whom the child has primarily resided since June 2018.

3. The child lived with her mother and father, she spent significant time with the paternal grandmother from the time of her birth until shortly before her first birthday.  The parties had separated in January 2016 and the child lived primarily with the mother and spent significant time with the paternal grandmother and the father until March 2018, when the mother moved to Melbourne and hid the child from her father and paternal grandmother.   

4. What makes this case difficult revolves around the personalities, nature and circumstances of the mother, father and the paternal grandmother, all of whom wish to be significantly involved in the life of this little girl. 

5. As to the mother, she had a terrible upbringing which involved her being cared for by heroin addicted parents who supported themselves through work in the sex industry. The mother was brought up from the age of about eight years by her paternal grandmother. The mother lived in difficult circumstances; her father died in 2014 and her mother died in 2015.  The mother became involved in the sex industry when she was aged about 16 years. The mother is likely to have regularly used the so called ‘recreational drugs’ in terms of her lifestyle. At times over recent years she has engage in a hedonistic lifestyle. On the evidence, I am satisfied that she left a considerable amount of the parenting of the child to the paternal grandmother.

6. The mother did not and perhaps does not respect the rule of law.  On 20 November 2017 consent orders were made in the Family Court that the child live with the mother and spend time with the paternal grandmother.  The mother was restrained from removing the child from the Sydney metropolitan area.  What is not in issue is that following the making of those orders the mother, in March 2018, relocated the residence of the child to Melbourne in a clear and flagrant contravention of the orders made by this Court.  On 18 May 2018 recovery orders were made to return the child to Sydney.  The mother unsuccessfully sought orders out of the Melbourne Magistrates Court to inhibit the operation of the recovery order.

7. On 1 June 2018 an order was made in this Court confirming the recovery order and the child was soon recovered from the mother and returned to Sydney.  There is some evidence by the paternal grandmother, which I accept, that the child was traumatised by those events over April and May 2018.

8. The mother took considered steps to avoid the recovery and to impede the recovery by the Australian Federal Police who were looking for the child.

9. When the child was recovered in early June 2018 she was placed in the care of the paternal grandmother.

10. The mother, up to the commencement of trial, had only seen the child on limited occasions: three through a professional child contact company and once with the single expert.

1. During the time she lived in Melbourne the mother exposed the child to Ms E, who is a well know confidence trickster who has spent time in prison for her exploits.  The mother, in full knowledge of Ms E’s history, employed her as a nanny to care for the child, often alone.  Given the history of Ms E, this put the child at grave risk of harm.

2. The mother has made serious allegations against the father, some true and others exaggerated.  She is not a reliable witness.

3. The mother is well off financially but this Court has concerns about her capacity to care for the child and meet her emotional and psychological needs, amongst other issues.

4. The mother in many ways enabled the paternal grandmother to care for and at least jointly parent the child.  The mother spent much of her time focusing on her own personal needs and developing her business in the sex industry.  On her evidence she worked and works as an entrepreneur in providing women for sexual services to men, and on the father’s and paternal grandmother’s case she is  engaging in that industry.  Being involved in the sex industry is not in itself a disentitling factor in terms of care of a child, it is the possible exposure of a child to the darker side of that industry that causes concerns.

5. As to the father, he was (and maybe is) a full member of some outlaw groups. Similar to the mother, he had an awful upbringing as a result of a violent and controlling father.  In his family life he, his brother Mr F and his mother were subjected to terrible family violence at the hands of his father.  The paternal grandfather, now lives overseas and is apparently remarried.  He had mental health issues and has abused drugs and alcohol when parenting his two children, the father and his brother Mr F.  When his parents separated, the father was placed in the care of his violent father, either through fear and/or as a cultural outcome.  The father objected and was later returned to his mother’s care.

6. In his final secondary school years the father became involved with members of outlaw groups. He says he enjoyed the camaraderie of those groups. He eventually became a full member of two outlaw groups.  He claims that he left that part of his life some years ago and he is now free of those association.  The father denies any serious involvement in crime and violence.  I do not believe him in respect of this and when he says he is free of the underworld.  His evidence, like that of the mother, is unreliable.  

7. The father wants the child to live with the paternal grandmother, but hopes in the medium term for the child to live with him and his present partner.

8. As to the paternal grandmother, she is now living a settled and constructive life since the end of her marriage to the paternal grandfather.  She has re-partnered and her present partner is the antithesis of her former husband.  He partner works as a professional and clearly devotes himself to the paternal grandmother, her other son Mr F (a disabled adult) and the child.

9. The paternal grandmother has and continues to be a breath of fresh air in the life of the child.  She is protective and loving of the child and is enabling the child to develop in a way that was denied the father and mother.

10. The paternal grandmother has some parenting defects, which concern this Court.

11. One is that she sees the father through rose coloured glasses.  She easily forgives him his behaviour and is open to accepting his assertions as to his present lifestyle and his abandonment of his involvement in crime and violence.  She easily forgives his transgressions. 

12. The paternal grandmother befriended and supported the mother as the father’s partner and then as the mother of her granddaughter. Following the mother’s illegal removal of the child in her move from Sydney to Melbourne in March 2018 the paternal grandmother has developed fear that the child will be removed again and perhaps taken overseas and beyond the reach of orders of this Court.   She is afraid that the mother is not protective of the child. Given the events of last year, those fears are based in fact. However, the paternal grandmother is seemingly not open to the softer approach as that which she applies to the father.

13. The paternal grandmother was hyper sensitive to the mother’s supervised contact with the child and has unilaterally terminated those arrangements for little or no reason.

The parties’ respective positions

1. The mother seeks orders as set out in her Amended Application for Final Orders filed 26 September 2018.  This includes sole parental responsibility, that the child live with her in Melbourne and communicate and spend time with the paternal grandmother each alternate weekend in Sydney, by telephone and as agreed.  She sought no orders in respect of the father’s time with the child.  I took it that her view was that the child spend no time or only supervised time with the father, given her asserted fears of him and her belief that he was deeply involved in violent criminal activities.

2. In her case outline[1], the paternal grandmother sought orders that she and the father have shared parental responsibly of the child and keep the mother informed of their decisions.  The paternal grandmother sought orders that the child live with her and spend time with the father by way of an informal arrangement.  As to the mother’s time with the child, the orders sought by the paternal grandmother were for time determined, essentially, by her or in the absence of agreement for supervised time for six hours each Sunday.  She sought injunctions and other orders as set out in her case outline.

   [1] Exhibit E3.

3. The Independent Children's Lawyer sought orders as set out in the handwritten minute handed up in the final day of hearing. [2]  That provided for orders that the child live with the paternal grandmother, that she and the mother have equal shared parental responsibility for the child.  The Independent Children's Lawyer sought to limit the father’s time with the child and to provide unsupervised time with the mother building up over 2019 and altering when the child commences school in 2020.

   [2] Exhibit E22.

The issues

1. The substantive issues are:-

   a)Whether the child should live primarily with the paternal grandmother in Sydney or with the mother in Melbourne;

   b)Once residence is determined what time should the child spend with the not resident party, including whether the father should spend time and, if so, whether it should be supervised; and

   c)Who should have parental responsibility of the child? 

2. There are factual issues, including:-

   a)The nature of the relationship between the child, her parents and the paternal grandmother;

   b)The nature of the mother’s parenting of the child; 

   c)Whether the relationship between the mother and the father was violent, and in particular the nature and level of violence;

   d)Whether the father is still involved in criminal and/or violent behaviour and if he continues to be involved with criminal associates and crime;  

   e)There were issues raised as to whether the mother worked as a prostitute and left the parenting of the child to the paternal grandmother for significant periods of time which on the mother’s case ranged for a few days per week with a one week holiday to the paternal grandmother and on the father’s case that there were many occasions when the mother left the child with the paternal grandmother for up to ten days.  If established the likelihood that such assignment of priorities would continue and impact on the child;

   f)Whether the mother is working as an escort and, if so, how and if it impacts upon her ability to care for the child or exposes the child to any risks. The same questions arise in terms of the mothers operation of an escort agency business;

   g)The ability of the relevant parties to enable a relationship between the child and the other parties;

   h)The nature and extent of the risk which Ms E poses to the child including the mother’s ability to assess risk;

   i)Whether the mother poses a risk in abducting the child and if so, whether or how that risk and be ameliorated.; and

   j)Whether the paternal grandmother is a mere stalking horse for the father and once the proceedings end the child will be placed into his care. 

3. Unsurprisingly there is an Independent Children’s Lawyer involved.  The paternal grandmother and mother were legally represented and had counsel represent them at the hearing.  The father was unrepresented and acted for himself, although he sought precisely the same orders as that of the paternal grandmother and in many ways his interests were protected from time to time by counsel for the paternal grandmother.

4. The Independent Children’s Lawyer prepared a case outline,[3] the mother’s counsel prepared a case outline,[4] and the paternal grandmother’s counsel prepared a case outline.[5]  These exhibits are not evidence of the facts asserted in them except where they are consistent and I explained that to the father that I would treat consistent facts as agreed.

   [3] Exhibit E1.

   [4] Exhibit E2.

   [5] Exhibit E3.

5. A single expert was appointed and a report was prepared by Dr N dated 15 December 2018.  That report was admitted into evidence.[6] The single expert recommended that the paternal grandmother have parental responsibility for the child and that the child continue to live with her and that any time with the mother ought to be supervised.

   [6] Exhibit E5.

BACKGROUND

1. The paternal grandmother was born in 1970 and is now aged 48; she says that she is in good health.  She has a tertiary qualifications. She has provided childcare for a long time and says that she is accustomed to caring for many children.

2. The paternal grandmother has two children: the father and her younger child, Mr F. Mr F is aged about 25 and has Down Syndrome.  He is cared for by the paternal grandmother.  Mr F works part time, 8 hours per day and four days per week.

3. The paternal grandmother and her partner have no criminal history and their limited interaction with the police arises out of the father’s involvement with criminal groups.  The paternal grandmother and her partner have always been co-operative and constructive in their involvement with police.

4. The mother claimed that Mr F was a possible risk to the child due to her allegations that Mr F had problems with anger and maintaining personal boundaries.

5. I was given evidence by the paternal grandmother, her partner and the father about Mr F. This child was interviewed by the single expert, who opined:-[7]

   [Mr F] presented as very settled and calm throughout. Overall I could not establish anything about his presentation, his disability, or his behaviour which could make him a risk to [the child]. I note that she [the child] is reportedly never left in his sole care.  

   [7] Exhibit E5, single expert report 15 December 2018, paragraphs 104 to 109.

6. A description of Mr F was recorded by the single expert and this included:-

   108.  [The father] also spoke about his view that his brother is very caring towards [the child] and described him as being a "very switched-on kid". He said that Mr F often likes to "keep to himself' and spend his free time listening to music on his head phones. He said that Mr F also enjoys cleaning and will vacuum the house and put the washing machine on. [The paternal grandmother] confirmed that Mr F is extremely helpful around the house and regularly makes her bed and tidies up. She said that he is so keen on tidying up that he will sometimes follow [the child] and put away any toys she leaves out. [The paternal grandmother] said that she is teaching him not to do this because [the child] needs to takes responsibility for her own belongings.

7. Given the evidence about Mr F, I am satisfied that the mother has likely fabricated her evidence about him to assist her in these proceedings. It is significant that she seek no limitation on Mr F’s involvement with the child in the orders she seeks.

8. The paternal grandmother lives with her partner and has done so since 2005. Her partner is a professional who works as a Manager. 

9. The father is aged 30 and says he works part-time in allied health.  He is in good health.  He has been unemployed throughout much of the relationship. He is in receipt of Centrelink benefits and has been for many years.  He says that he is currently in receipt of sole parent benefit, presumably for care of the child.  The father’s family history is as propounded by him is set out in the single expert report.[8]  The father was a member of two outlaw groups, but asserts that at the end of 2015 he had extricated himself from these organisations.  The mother asserts that he heads a crime gang and that he remains a violent and dangerous man.

   [8] Exhibit E7 paragraphs 112 to 117.

10. There is some evidence that the father undertook some labouring work at some stage and he says he is endeavouring to build up an allied health business.  He denies receiving any income from criminal activities.  I do not believe him.

11. The father lives in a de facto relationship with Ms H.  He has known Ms H for many years.  I accept her evidence that she and the father have been in a relationship since about August 2017 and they have lived together since August 2018.  The father endeavoured to hide or downplay that relationship with the single expert.

12. The mother was born in 1990 and is aged 28.  She says she is in good health.  She says her employment is as a Manager of an Escort Agency and that she has run this business since April 2017.  She deposes that she earns about $250,000 per year.  She says that business is operated by telephone and other electronic means.  She denies being involved in the sex industry apart from the provision of services of a large number of sex workers.

13. The mother’s family history, as provided by her, is set out in the single expert report.[9] She has a close relationship with her grandmother, who is now aged seventy nine.  This grandmother provided support for the mother during the course of the hearing.  She denies working in the sex industry after she met the father.  She says she has never exposed the child to any aspect of her work.  I have reservations about the veracity of that evidence.  There is some evidence that the mother has used cocaine and takes drugs, some legally obtained and some illicitly obtained, such as Xanax, Valium and the like.

    [9] Exhibit E5 paragraphs 50 to 54.

14. The mother and father met at a party which was conducted in South East Queensland in January 2012.  The mother moved to Sydney where the father was residing, rented a home unit and they commenced living together in an apartment in the Sydney metropolitan area.  They lived in a number of apartments.  The apartments were rented in the name of the mother.   The father asserts that the mother paid all of the rent and said to him that she received those from the mother’s alleged investment properties in Queensland or, by implication, by the mother working in the sex industry.  The mother said the father paid the rent in cash from the proceeds of crime in his involvement with outlaw groups. 

15. In 2012 the father was charged with possession of steroids.  He pleaded guilty and was given a bond.  In July 2012 the father was charged with fighting at a hotel and received a bond after a guilty plea. 

16. The parties say that they separated in early 2016.  There is no need to make a finding as to the date as it is not relevant to this determination.

17. Following separation there were issues between the parties as to the time that the child spent with the paternal grandmother the father and the mother’s concerns about her beliefs about the father’s asserted anger, criminal connections and violence. 

18. These proceedings were commenced in November 2017 and various consent orders were made leaving the child with the mother but spending time with the paternal grandmother.  As indicated earlier the mother removed the child from Sydney in breach of orders and the child was recovered on 1 June 2018 and has been primarily in the care of the paternal grandmother since that time.

19. Any statement of fact in these proceedings is to be regarded as a finding of fact.

THE LAW IN RELATION TO PARENTING

1. The provisions of the Family Law Act 1975 (Cth) (‘the Act’) that deal with children are set out in Part VII of the Act, in particular s 60B articulates the objects and the principles underlying them 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).

2. A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.

3. If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-

   (a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;

   (b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.

   (c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.   

4. Section 60CA provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the Court must consider the matters set out in s 60CC.

1. In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-

   (1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   (2)The primary considerations 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.

   Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   (3)Additional considerations are:

   (a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)       the nature of the relationship of the child with:

   (i)       each of the child's parents; and

   (ii) other persons (including any grandparent or other relative of the child);

   (c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i) to participate in making decisions about major long-term issues in relation to the child; and

   (ii)       to spend time with the child; and

   (iii)      to communicate with the child;

   (ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)       either of his or her parents; or

   (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e) 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;

   (f)       the capacity of:

   (i)       each of the child's parents; and

   (ii)any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)      if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)any family violence involving the child or a member of the child's family;

   (k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:

   (i)       the nature of the order;

   (ii)      the circumstances in which the order was made;

   (iii)      any evidence admitted in proceedings for the order;

   (iv) any findings made by the court in, or in proceedings for, the order;

   (v)       any other relevant matter;

   (l)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;

   (m)      any other fact or circumstance that the court thinks is relevant.

2. The House of Lords in J v C in [1969] 1 ALL E.R. at page 824 Lord MacDermott said when considering rights of custody and deciding that the welfare of the infant as the first and paramount consideration said the following:-[10]

   3.While there is now no rule of law that the rights and wishes of unimpeachable parents must prevail over considerations, such as rights and wishes, recognised as they are by nature and society, can be capable of ministering to the total welfare of the child in a special way, and must therefore preponderate in many cases.  The parental rights however, remain, qualified and not absolute for the purpose of the investigation, the broad nature of which is still is described in the fourth of the principals enunciated by FitzGibbin, L.J. in re: O’Harra [1900] 2 I.R. at page 240

   4.Some of the authorities convey the impression that the upset caused to a child by change of custody is transient and a matter of small importance.  For all I know that may have been true in some cases containing dicta to that effect.  But I think a growing experience has shown that it is not always so and that serious harm even in young children may, in occasion, be caused by such a change.  I do not suggest that the difficulties of this change can be resolved by purely theoretical considerations, or that they need to be left entirely to expert opinion.  But a child’s future happiness and sense of security are always important factors and the effects of change of custody will often be worthy of the close and anxious attention which they undoubtedly received in this case.

   [10] Page 824.

3. These views were in many ways enshrined in the Act. The question of primacy of parenthood was in recent years discussed by the Full Court in the Yamada & Cain [2013] FamCAFC 64 where the appellant contended that the primary considerations contained in the Act had the intention to give primacy to parenthood in determining the best interests of the child.

4. The Full Court, comprising of Murphy & McMillan JJ discussed the importance of parenthood and the appellant submitted that ‘both the Act and Authority demand that significant weight must be attached to parenthood in making ‘live with’ orders and Her Honour paid no, or insufficient, regard to each’. Their Honours went on to reject that argument. The basis for that rejection was set out from paragraph 19 onwards.

5. The Full Court quite properly acknowledge that the fact of parenthood is centrally important in a decision about a child’s best interest. Further, that the primary considerations under s 60CC of the Act do not apply to non-parents however, the Court did not conclude that this gives primacy to being a parent per say. The Full Court quoted with approval the reasoning in Donnell & Dovey [2010] Fam CAFC 16 and said:-

   25.    In Donnell, the Court went on to say in the paragraph from which the earlier quoted passage emerges (at [101]) and the succeeding paragraph of the judgment:

   However, [the fact that s 60CC(2)(a) makes no reference to non-parents] does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent.  As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight. 

   We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent.  For discussion of the relative importance of the primary considerations in comparison to the additional considerations see Marsden & Winch (No. 3) [2007] FamCA 1364 per Warnick and Thackray JJ at [77] and [78], Champness & Hanson (2009) FLC 93-407 at [101] to [103], Mulvany & Lane per May and Thackray JJ (supra) at [84] and Aldridge & Keaton (supra) at [74] and [75]. 

   (Bold emphasis added).

   26.    Moreover, as was said in Aldridge, above, at [74], in respect of the Primary and Additional Considerations:

   It is clear however from the EM that while the use of the word “primary” is intended to stress the importance of the considerations in s 60CC(2), in a particular case one or more of the considerations in s 60CC(3) may outweigh the primary consideration …

   and more broadly, at [75]:

   While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant …

6. The Full Court in Yamada & Cain (supra) went on to conclude:-

   27.The broad enquiry as to the best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognise that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.

7. I will endeavour to apply the principles of law to the facts.

EVIDENCE

The Independent Children’s Lawyer

1. The Independent Children’s Lawyer relied on the report provided by Dr N dated 15 December 2019, the reports from M Group (the supervisors of the mother’s time with the child) dated the 20 September 2018, 27 September 2018 and 4 April 2018 and various documents tendered as exhibits and referred to during the hearing and during submissions.

The Mother

1. The mother relied upon her Amended Initiating Application, her affidavit filed and sworn 7 December 2018 (‘the mother’s trial affidavit’) and affidavit of Ms G sworn and filed 14 January 2019.

2. The annexures to the mother’s affidavit were tendered in evidence.[11]  Part of that exhibit was referred to as Exhibit M12 which was illegible.[12]  Because of this I invited counsel for the mother to provide the Court with a legible copy.  It was not provided.

   [11] Exhibit E6, (pages 1 to 100.

   [12] Page 40 of 100.

3. The mother’s affidavit provided evidence that her parents had both passed away and that she has a brother who works as a life guard.  There is the paternal grandmother, to whom I referred to earlier in these reasons.

4. In her affidavit the mother acknowledged that she ‘broke’ the orders restraining her from removing the child from the Sydney metropolitan area.

5. The mother provided statements of evidence in relation to the father’s criminal connections.[13]

   [13] Mother’s trial affidavit paragraphs 19 to 36.

6. The mother gave evidence of attending a party from an outlaw group in January 2012.  Her explanation of how she was invited to the party and how she stayed there was inherently implausible.  She said that she only realised it was an outlaw group party when she arrived and she felt intimidated to stay, but then went on and spent three hours having discussions with the father and then forming a relationship with him.

7. The mother gave evidence of her contact with members of the Melbourne underworld. 

8. The mother had a good relationship with the paternal grandmother in 2014 including urging the mother and father not to breach an Apprehended Violence Order.[14]

   [14] Exhibit E7 page 337.

9. The mother gave evidence that on 8 January 2014 she told her doctor that she had been assaulted by her boyfriend, the father.  The doctor saw no significant evidence, however, I take this as corroboration that the father had been violent to the mother. I accept the evidence of the mother that she would have endeavoured to hide any bruising or signs of violence from the father.

10. The mother asserts that no one has the ability to control the father.  That is perhaps the case in respect of both the mother and the father given the electronic messages that passed between them.[15]

    [15] Exhibit E12.

11. The mother gave evidence in relation to her use of cocaine.  She said that the photograph and video[16] and memory stick[17] were just her and her friends clowning about showing a dark sense of humour.  The mother said she had only ever had cocaine once; this admission followed the discovery of evidence of cocaine in a hair follicle test.  She said it was one example and she gave evidence of that both orally and in her affidavit.

    [16] Exhibit 7 page 468.

    [17] Exhibit E7, pages 405 to 406 and stick marked ‘Ms H dancing’.

12. The question of drug abuse was discussed between the mother and the single expert.[18]  The mother’s oral evidence of the use of cocaine is troubling.  There are a number of examples of the mother being involved in the use of drugs.  One example was the text messages between the father and mother, to which the father referred to in his affidavit.[19]  I am satisfied the mother was at that time abusing prescription drugs.  The mother prevaricated and fabricated in her evidence on this issue.

    [18] Single expert report paragraphs 82 to 85.

    [19] Father’s trial affidavit, paragraph 102 referring to annexure T which is part of Exhibit E10, pages 67 to70.

13. The mother said that she uses Xanax, and she said that she had obtained this prescription drug from a friend.

14. The mother was cross-examined in respect of some videos of her snorting ‘white lines’.  She said it was all done in fun and jest, although the mother did concede that she had one involvement with cocaine, which showed up in a hair follicle test.  I do not believe her evidence about the limit of her cocaine use.

15. The mother’s evidence about her drug use was troubling and I am satisfied that she engages in illicit drug use from time to time and that she is not being frank with the Court in relation to that aspect of her life.

16. There was a video shown of the mother tapping the inside of her arm wanting ‘smack’.  I am satisfied that this was likely to have been done in a jocular (black humoured) way.

17. In her evidence the mother said that she wanted the father to see the child, but wanted that to be supervised for the short term until such time as she or the Court was satisfied that his anger was under control.  She believed that the father should undertake an anger management course, have a regular job, there be evidence that he not use steroids and that he undergo ongoing psychological treatment. 

18. The mother made it clear that she believed that the father was violent and that she was fearful of him to the extent that she would not stay overnight in Sydney.

19. The mother denied that she has worked as a sex worker since meeting the father.  There is evidence from the medical records which indicate otherwise and show that the mother is likely to continue to be involved in the sex industry.  There is further evidence that the mother is involved in the sex industry in terms of the substance of the text messages with her friend Ms P.[20]  The mother prevaricated and dissembled in evidence when cross examined on these messages.

    [20] Exhibit E7, Paternal grandmother’s trial affidavit paragraph 301 pages 481 to 488.

20. Given the mother’s false denials, I am unable to make any reasonable assessment as to whether her work or business is unlikely to provide any risk for the child or as to her involvement with criminal elements, such as those made to Australian Federal Police officers when the child was recovered in mid-2018.  I can only infer that Ms P’s evidence would not have assisted the mother.   

21. Since the child has been returned to the paternal grandmother the mother has only seen her on three occasions.  The mother, rightly, complains that the time she spent with the child through the commercial provider has been effectively stopped by the paternal grandmother and the father.

22. I have had regard to the reports from the commercial provider, M Group.[21]  The first of those reports was dated 20 September 2018 and I am satisfied that this contact went well.  I accept the evidence of the reporter that the child engaged with the mother in a positive and warm way.

    [21] Exhibit E6 pages 49 to 61.

23. The second visit was on Thursday 27 September 2018.  During that visit there was an interaction with someone who the mother thought was a friend of the father’s.  I have carefully read that report and noted that this person, whoever he was, was with his children and ‘departed the park within a short period of time’.  The steps taken by the supervisors were thoughtful and appropriate.

24. Again it showed a good relationship between the mother and the child.

25. A letter was then sent to the supervisors on 2 October 2018.  The letter was sent on the instructions of the paternal grandmother and was a brutal verbal attack on the role of the supervisors. 

26. There was the report from M Group of 4 October 2018 to which I had regard[22] which drew a further letter from the solicitors for the paternal grandmother.[23] The paternal grandmother unilaterally withdrew consent for the supervisors.  One of the complaints made by the paternal grandmother was that a report had been made to Child Protection Authorities.  It was totally unsatisfactory behaviour by the paternal grandmother and the consequence was that M Group ceased being the supervisors.  That consequence was unfortunate for the mother and the child. 

    [23] Exhibit E7 page 77, Letter dated 7 November 2018

27. Endeavours were made to put in place other arrangements.  Once was tried for Christmas Eve, however the mother, declined and hung up when those arrangements were discussed on the telephone because she was not permitted to make video recordings of the child.  I accept the mother’s evidence in respect of those events which were, to say the least, unfortunate.

28. There was some criticism of the mother in relation to her interactions with the paternal grandmother where she sought to try and see the child.  I have dealt with the evidence in respect of this elsewhere in these reasons.

29. The mother moved to Melbourne in March 2018 and had a relationship with a man there.  That relationship did not succeed.  I am satisfied that is a significant part of the reason why the mother moved to Melbourne.

30. The mother tried to explain the reasons why she left Sydney and hid the child.  It is clear from her evidence that she went to significant trouble to hide the child from the father, paternal grandmother and the Australian Federal Police. I do not accept her expressions of remorse other than as other than tactical.

31. The mother had formed a friendship at a party with Ms E who had a history of fraud and criminal behaviour.  The mother conceded that Ms E prepared fraudulent documents for the child.  There was an issue as to whether Ms E took the child to Tasmania or not.  It makes little difference.  The mother put her friendship with this person ahead of the need to protect the child.  She employed her as a nanny and then said she just helped her.  I am not confident that the mother was truthful in her evidence as to the significant involvement of this person.  This is troubling in terms of the mother’s recklessness in the care of the child from time to time. 

32. Furthermore, on one occasion when endeavours were being made to recover the child in mid-2018 the mother was abusive to the police, made threats to the police and asserted that the father had been guilty of sexual abuse.  In fairness the mother did not pursue those allegations in court, however they were made and the mother’s explanation was that she was extremely intoxicated.  This was the person who had the full time care of the child.

1. The mother was cross-examined by the Independent Children’s Lawyer in relation to her income.  She said she ran an escort business which operated from 9.00am until 9.30pm or 10.00pm each night, generally via text messages.  The mother said that she did not work in the sex industry apart from organising about four hundred women in that industry.  She said she now employs four to six administrative staff.

2. Given my views about the mother’s evidence and her carelessness for the truth I do not know what to make of this evidence.  The mother earns about $250,000 per year.  She lives in a modern well-furnished rental apartment.

3. In terms of the time that the mother suggests that the child have with the paternal grandmother, she suggests that she comes up to Sydney once per month for the weekend, with the child and then return later.

4. In terms of the mother’s honesty she lied to the Australian Federal Police about the child’s whereabouts.  The mother’s evidence was deeply troubling.  She seemed to give evidence to support her case and was not bothered from time to time about aspects of truth.  She did that in terms of putting off the Australian Federal Police and deflecting them.  She did this in terms of her work in the sex trade and in terms of her use of recreational drugs.

5. I am satisfied that she understates her involvement in the business and overstates her involvement in the care of the child during the time that she was living in Sydney.

6. The mother has little regard for the father.

7. The mother’s evidence was littered with fabrication, exaggeration and rhetoric.  I have treated her evidence as generally unreliable.

Ms G

1. Ms G provided evidence in terms of her affidavit sworn 12 January 2019 and filed 14 January 2019.  Ms G runs a business and provided services to the mother between June 2015 and March 2018.

2. She attended the mother’s home on a weekly basis over the whole of that period and so probably saw her on well over 200 occasions. These appointments were usually at night when the child was asleep.  She provided evidence of the mother expressing concerns about the child’s safety whilst in the care of the paternal grandmother. There was some evidence that the child called the paternal grandmother ‘mummy’, although given that she is the mother of the father that is not unexpected and I accept the evidence of the paternal grandmother and the father that the child normally calls the paternal grandmother by her first name.

3. Ms G was able to look at the home of the mother and have some limited observations of the mother’s parenting of the child.  Her evidence was positive.  Ms G said she was not a friend of the mother’s. 

4. I have accepted the evidence of Ms G as being frank and reliable.  She was not shaken in cross-examination.  She seemed straight forward and was impressive.

5. This is evidence that the mother kept a reasonable state of cleanliness in the home over that period of almost three years, was focused on the child and when the child was distressed on a few occasions she appropriately dealt with the child.

Mr J

1. Mr J is the partner of the paternal grandmother.  They met in 2004 and he migrated to Australia in 2005.  The paternal grandmother and he have lived together since that time.  They are a family caring for each other and the paternal grandmother’s elder son Mr F.  At times the father has lived there and in recent years the child has lived there for significant times. 

2. He is a professional in full time employment and supports the paternal grandmother and her family.  He gave evidence in relation to the amount of time the child spent with the paternal grandmother and I generally accept his evidence.  On his account the child spent time with the paternal grandmother: on two or three nights a week from shortly after separation until August 2016; three to four nights a week from August 2016 to April 2017; and five to six nights a week from April 2017 to November.  This was the time when the mother complained about the child not being returned.  The child was not returned and orders were made to slowly reintroduce the child to the primary care of the mother.

3. Mr J said there were times when the child did not see the mother for some time, up to ten days or so.  He gave evidence as to the significant parenting role taken on by the paternal grandmother.

4. There was evidence of the mother being abusive to him Mr J.  Given the evidence of abuse passing between the parties that is not unsurprising and was likely to have occurred.  This witness gave evidence that there was no cutting of the child’s eyelashes and it would devastate him that such an assertion has been made.

5. Some of his affidavit was submissions and I have had no regard to that.  He talked about the impact on the child when she returned.  Mr J acknowledged that the child’s mother is important and supports the child seeing the mother.

6. He seemed a direct and straight forward witness.  He is supportive of the paternal grandmother and his evidence is coloured by that relationship.  However, I treat his evidence as being substantially reliable.

The father

1. The father provided evidence in terms of his affidavit sworn and filed 19 December 2018.  The father, and indeed the paternal grandmother, had the advantage of filing their affidavits sometime after the mother had filed hers.  I had given some weight to that delay as it allowed some forensic advantage for them.

2. Exhibited to the father’s affidavit were a series of documents which were tendered in evidence.[24]  I have had regard to those documents. 

   [24] Exhibit E10

3. The father gave his background and I have also read that in conjunction with the evidence of the single expert.

4. The father gave evidence about the photographs produced by the mother.[25]  These photographs allegedly showed the father consorting with criminals in recent times.  His answers to questions in this regard were at times glib and dismissive.  When asked about the criminal record of some of the people there it was met on at least one occasion with “I don’t know” or a concession that one of those people were imprisoned in Brisbane.  Given the lack of frankness on the part of the father, I do not know what to make of those photographs except to say that they are unlikely to be as innocuous as the father asserted.  The photographs go more to the question of the father’s credit and in failing to adequately answer the question I infer that truthful answers would not have assisted the father.  

   [25] Exhibit E6, exhibits to mother’s affidavit pages 10 to 17 (the original exhibit is a paginated copy made by me).

5. There is no doubt the father was engaged in violent activities when he was a member of the groups.  The father said he never saw violence, including violence against women, whilst a member of the criminal groups.  I do not believe him and I say such an assertion is inherently implausible.

6. The father said that he saw no signs of intimidation against women whilst he was a member of the groups.  I find that that assertion by him was also inherently implausible.  His action with regard to the events in January 2014 were violence and intimidation against a woman and an onlooker, which the father endeavoured to conceal. 

7. The father said that he had never taken steroids and that the material he took was not for body building.  The father was convicted on two occasions on possession of steroids.  I accept the evidence of the mother that from time to time the father suffered from rage as a result of his steroid use. 

8. In respect of his relationship with his present girlfriend, Ms H, he said that they had broken up at the time of the report but they had then recommenced their relationship.  He said the relationship with Ms H was one of a friend he had known for many years and that it had its highs and lows.  I am satisfied on hearing his evidence that he embellished or fabricated that evidence about the relationship, particularly in terms of his expression of the nature of it to the single expert.[26]

   [26] Single expert report paragraph 10, page 7.

9. The father lives with Ms H and the property is rented in her name and he says he contributes nothing to it.  I do not believe him.  Ms H does not have the resources to live at that level and support the father.

10. I am concerned about the father’s assertions that he has not been engaged in criminal activity and is not earning income from criminal activity.  The father lives a financially strong lifestyle and earns limited money from his work in allied health, in which he engages, two days a week for up to two hours a day, plus Centrelink benefits.

11. The father said he has done some part time cash labouring work also.

12. The father was given a certificate under s 128 of the Evidence Act 1995 (Cth) in relation to this evidence but still chose to provide little or no information.

13. The father is deriving income from unknown sources and chooses not disclose those sources to the Court.  His evidence about his limited earnings is fabricated. I infer that any such disclosure would not assist him in these proceedings.

14. In paragraph 11 of the father’s affidavit he says he found out at the time that the mother was an escort and was hired to be at the party where they met.  He said that the mother used to go out a lot, three or four nights per week, and come back early in the morning and that when he asked where she had been she said she was staying at friends.  He then went on to say that he now believes that she was involved in the escort business.  The father said he was naive about the mother.  That is hardly likely.  He knew the business of the mother and understood the nature of it.

15. Paradoxically the father says at paragraph 116 of his affidavit he says he was prepared to put up with the mother being involved in the sex industry.  This cannot sit comfortably with his other evidence. It is indicative that the father says what he considers people will believe and is not constrained by notions of truth.

16. The father says that he did not use cocaine, denied the use of steroids and said that he occasionally used cannabis. 

17. A hair follicle test conducted on the father in August 2018 provided evidence that he had high levels of Oxycodone.  The father confirmed that he had a toothache and had used this drug for pain relief.  He did not obtain a prescription for this drug, he said he acquired it from an acquaintance in the Ryde area and he said that it was given to him.  He was pressed to provide the name of the person but could only remember his first name.  This is indicative of the father being untruthful and being involved in the illegal trade of at least prescription drugs.  The same hair follicle test founds levels of Cannabinoids which were consistent with the regular use of cannabis, rather than the occasional use of cannabis.  It adversely impacts on my assessment of the father’s credit. 

18. As to the allegations of violence, on 7 December 2012, which was prior to the birth of the child, the police came to the home where the father and mother were living and the police said that they observed the mother shaking and in tears, the father said ‘everyone has domestics, we argue and it’s personal’.

19. There is another incident of violence toward the mother and intimidation of a member of the public on 7 January 2014 which I have described elsewhere.  The police prepared a fact sheet on the basis of their investigation.[27]  Later as to this event the father said to police ‘it’s nothing, it’s just domestic violence’.[28]

    [27] Exhibit E6, electronically numbered pages 27 to 2.7.

    [28] Ibid see page 28.

20. The father admitted using offensive names to the mother including ‘slut’. His abusive tone is consistent through the emails and text messages, including those as recent as December 2018.[29]

    [29] Exhibit E12.

21. The father’s concerns about the mother were her drug use, her involvement with the sex industry and hygiene issues.  I am satisfied that they are, to a large extent, manufactured to assist his case.

22. What do I then make of the father’s evidence?

23. He is not a reliable witness.  He will say what needs to be said to achieve the ending that he desires.  I have treated his evidence as wholly self-serving and unreliable.

24. However, I accept a few things.  First, that the father loves the child and wants to have a relationship with her and that the child is not, at this stage, at risk of physical harm from him, although she is at risk in terms of his language, abuse and his attitude to women in particular.

25. What is troubling in this case is that the father gave evidence that he hopes his relationship with Ms H is successful and that they have a family and that he sees that in the near future the child will live with him.

26. I raised with the father the question as to whether the application by the paternal mother was as a stalking horse for the father.  Given the evidence of the paternal grandmother and her partner, and including her evidence of her interactions with the police and her requirement that the father move out in August 2018 following a drug test, I am satisfied that the paternal grandmother tries to protect the child from the father and that she is not at present a stalking horse for the father. The paternal grandmother says that she is quite strict with him, but in many ways is forgiving of the father but is not forgiving of the mother.

27. The paternal grandmother said she would consent to orders limiting the time that the father spent with the child. 

28. The father said that supervision of the mother’s time needed to be in place until the paternal grandmother decides that it is not necessary.  Given the evidence of the paternal grandmother I think that is unlikely she will ever conclude that supervision should cease. 

29. In evidence the father said[30] that he completed the ‘Kids in Focus’ course and he said that he wanted to mediate a result.  However, reading his recent emails[31] it seems more likely that his behaviour is more in the form of intimidation and bullying.  He said things such as:-

    You lil snake you got a nerve contacting me after u say I’ve sexually abused my daughter. Go die you diseased snake

    U should of thought bout that before you moved to Melbourne to try and break up another family. Yea that’s right [xxx’s] family the bloke you moved to Melbourne for. Get your karma now bitch go die. [The child] is happy healthy and beautiful WITHOUT U

    [30] Paragraph 51 of father’s affidavit filed 19 December 2018.

    [31] Exhibit E12.

30. I have read the whole of the text exchange and neither parent can regard it as ‘child focused’.  It was just awful communication between these parents which must predicate against any notion of the mother and father being able to jointly exercise parental responsibility.  This bearing in mind that this was exchanged in the weeks before the final hearing and when the parties must or should have known that their parenting behaviour would be under the microscope. 

31. The father acknowledged that supervision between the child and the mother over the long term would be damaging of their relationship. 

32. During the course of the hearing it was an agreed fact that the father has been receiving parenting allowance and other Centrelink benefits for himself and the child totalling approximately $1,000 per fortnight since about January 2018.  He ought not to have been receiving the care allowance for the child as she was cared for by the mother on a full time basis essentially from March to 1 June 2018 and by the paternal grandmother from that time.  The father’s bank records were tendered by the Independent Children’s Lawyer.[32]

    [32] Exhibit E17

33. The father was an unimpressive witness.  He was not contained by notions of truth and his evidence is unreliable and at times fanciful and fabricated.

Ms H

1. Ms H is the father’s present partner and she gave evidence in terms of her affidavit filed 19 December 2018.  In her affidavit Ms H said that she had known the father since about 2010, but was not aware that he was involved in the outlaw group.  When she became aware that he joined the group she remained friends with him, but said she was shocked and disappointed and did not pursue a relationship with him.

2. After the father left the groups Ms H said that she continued their friendship and then in August 2017 they became partners and began living together in August 2018.  She gives evidence of the nature of the relationship between the father and the child and the recovery of the child.

3. Ms H says that the father lives with her at her flat.  She pays the rent of about $555 per week and car repayments on her 4WD of about $325 per week.  Ms H earns between $1,000 and $1,500 per week.  She says she receives no funding from the father.  On her evidence out of her income she is left with either $120 per week or $620 per week to run her car, maintain the property, feed herself and the like.  I do not believe her evidence in this respect.

4. She sees little fault in the father and says that he has only ever smoked cannabis on one occasion.

5. Her explanation about the on and off relationship with the father is inconsistent with paragraph 11 of her affidavit.[33]  It appears to be a revision to fit in with the father’s evidence.

   [33] Filed 19 December 2018.

6. I treat her as being strongly aligned to the father and her evidence is troubling and unreliable.  She had seen the December 2018 text messages between the father and the mother and seemed not concerned by them.

Paternal grandmother

1. The paternal grandmother relied upon her voluminous affidavit filed

   
   

   20 December 2018[34] together with the exhibits to her affidavit[35] which contained some 488 pages.

   [34] Some 68 pages.

   [35] Exhibit E7.

2. The background of the paternal grandmother was set out in her affidavit and also in the history provided to the single expert.[36]

   [36] Exhibit E5, family history of paternal grandmother paragraphs 24 to 37.

3. The paternal grandmother lives in a home with her partner, to whom I have referred positively elsewhere, and her son Mr F, whom I accept works hard and assists his mother greatly in terms of housekeeping and the like.

4. The mother had made some criticism of Mr F. She says:-[37]

   [Mr F] has Down’s Syndrome.  He is very aggressive.  He is employed at the moment but has, in the past, had difficulties maintaining his supported employment positions because of aggressive and violent behaviour.  He has lost supported employment in the past for this reason.

   [37] Mother’s trial affidavit paragraph 5.

5. Apart for the mother’s general statements and conclusions there are no clear or objective facts or detail of the alleged aggression.  The evidence from the paternal grandmother, her partner and the father, supported by the single expert, is contrary to the mother’s general assertions set out in her statement to the single expert.

6. I accept the evidence of the paternal grandmother that the relationship between Mr F and the child is positive.

7. The paternal grandmother was cross-examined by counsel for the mother and was very argumentative in relation to that interaction.  She was defensive of herself, the father and the child.

8. She did concede a number of things, those being first that the child should be on an Airport Watch List Order, as did the mother, and that the child should go to a Catholic school near where she lived.  At this stage subject to the child’s development they are looking at her commencing school in 2020.

9. The paternal grandmother says that she interacted with police officers once the father became involved with the groups and at one stage provided assistance to the police to contact the father.

10. The paternal grandmother was not aware of the father’s involvement in drug use.  She said that when she found out in August 2018 she asked the father to leave her home and insisted that he not be involved in drugs in the home.  I have concerns about this evidence given the police removal of steroid type drugs from the mother’s home prior to the birth of the child.

11. The paternal grandmother does not see the father as part of a criminal culture, she sees him as being rehabilitated.  She looks for the good in the father and, sadly, she looks for bad in the mother.

1. On the evidence before me I am satisfied that it is unlikely that the child’s eyelashes were cut.

2. It is of concern that the child is being used by one or other of the parents as a tool to undermine the other parent.

3. As I said earlier, there was exhibited text messages between the mother and the father.[45]  These need to be seen in context as they arose at the time when the mother was being denied contact with the child and where the paternal grandmother and the father were effectively excluding the child from the mother’s life.  It is a paradox that the same people complain that the mother hid the child from them from between March and June 2018, which she did, and yet they see nothing in terms of their cessation of time between the mother and child from October/November 2018 until mid-January 2019.

   [45] Exhibit E12.

4. The father’s assertion that he has ‘seen the light’ following separation and the birth of the child is effectively laid waste to by these emails.

5. As to the mother’s fear I accept that the mother became fearful of the father.  There is some exaggeration of that fear, but the evidence of Ms G is indicative of the fear and given the background of the father, his violence throughout the relationship including violence or text messages to the mother shortly before the hearing, she had much to be worried about.

6. The father intimidated the mother on a number of occasions and I am satisfied that that intimidation occurred.

7. It is hard to make findings as to what happened between the father and the mother.  The mother exaggerates and at times fabricates.  The father understates the level of his violence.

8. I am satisfied that the father has a history of violence with an outlaw group.  I am satisfied that the father has from time to time inflicted physical violence on the mother, although given the state of the evidence I am unable to express the degree of that physical violence.

9. I am unable to make a finding as to the allegations of sexual violence.  The mother made it clear through her counsel that she does not believe the child is at risk of sexual harm in the unsupervised care of the father.  She is more concerned about his violence and his anger, particularly if he uses steroids. 

10. I considered all of the various submissions of the events of many years commencing 2012, well before the child was born, and onwards.  I am satisfied that the father has the propensity for violence and has little respect for women apart from his mother and his present partner.

11. There is no evidence that the mother has exposed the child to any elements of her work in managing an escort business or at a time when she was involved in the escort business, but given my assessment of her evidence, I just do not know. I am not convinced this is a case about ‘moral compass’.  In any event the father can hardly claim to be a leader in areas of ‘moral compass’.

12. The single expert was quite concerned about the engagement, as a party, in the life of the child.  Given the history of Ms E, that was a valid concern.  However, I am concerned that the single expert focused on this as a single significant issue.  It was significant, but it must be seen in the context of the other evidence.

13. I accept the evidence of the single expert that the mother likely manufactured the claims of abuse to the child as a way of supporting their case.  Given my views of the mother’s evidence, I have little trouble in coming to this finding.

14. Similarly I am satisfied that the father will say whatever he thinks is necessary to achieve the end that he seeks.

15. Overall I have been careful about the evidence of the single expert with the comments made above.  I am satisfied, however, that her recommendations in relation to residence are sound.  I have some concern in relation to her recommendations with regard to parental responsibility. 

16. The mother asserts that she fled Sydney in March 2018 through fear of the father.  I accept that the mother is fearful of the father and, given his history, there is a basis upon which she is entitled to be fearful.  However the mother did not leave Sydney after separation in 2016 nor did she leave Sydney in 2017.  The mother consented to orders that she remain in Sydney.

17. When the mother moved to Melbourne she formed a relationship with a man; that relationship did not work out.   The mother also developed her business in Melbourne, although there is some evidence from the mother’s witness Ms G that she was running the business in Sydney before she left.

18. The mother was represented.  No particular events occurred in March of 2018 apart from the alleged cutting of the child’s eyelashes.  The mother had the option of adducing photographs of those eyelashes and did not do so.  That could have been a forensic decision by the mother through her legal representatives or a variety of other reasons. 

19. In any event the evidence was available but was not used and I must assume that it could not have assisted the mother’s case.  The mother did not allow the child communication with the paternal grandmother, with whom the child has a close relationship. 

20. I am not satisfied that the primary reason the mother left Sydney was out of fear of the father.  I am satisfied that the mother left Sydney because she did not feel bound by the Court orders.

21. During the course of her evidence the mother apologised and said that she acknowledged how wrong it was for her to leave.  I watched her body language when giving those apologies and watched her expressions.  My sense was that they were not real apologies, but more to satisfy her perceived view of what the Court expected.

22. I have concerns that the mother will struggle to comply with orders if they do not meet her expectations.

23. The mother gave evidence that she thought on a visit supervised by M Group that she was stalked by a man wearing sunglasses.[46]

    [46] Mother’s trial affidavit paragraph 7.

24. However, the report of M Group was of a man with his family who left shortly afterward.  There is no evidence that this man was stalking the mother and given that he was there with his children it is far more likely that he was simply another person attending the park with his children.

25. The mother has either been hypersensitive or has concocted the story to support her contentions of fears.

26. The child has a close relationship with each of the parties and was likely attached to both the mother and the paternal grandmother.

27. Notwithstanding the evidence of Ms G, I have concerns about the mother’s parenting of the child particularity in term of her work, given her lack of candour about it, the relationship and trust of the child with Ms G, the mother’s use of drugs, her failure to comply with court orders, her observed alcohol intoxication and abuse of police during attempts to recover the child in 2018[47] and her at times hedonistic lifestyle.   

    [47] Exhibit E18, page 194, notes from Australian Federal Police.

28. As to the relationship between the mother and the father and violence, I have already addresses that issue.

29. I have likewise addressed the issue in terms of the mother’s work in the sex industry.

30. I have found that the father is still likely involved in criminal and/or violent behaviour and is involved with criminal associates and crime.  

31. While the mother and the paternal grandmother were the primary carer of the child, I am satisfied that the mother regularly left the parenting of the child to the paternal grandmother for significant periods of time as was asserted by the paternal grandmother.  I prefer the evidence of the paternal grandmother to that of the mother on this point.  Despite her evidence to the contrary, I am not convinced that the mother will prioritise the needs of the child over her work and social life.

32. It is clear that the mother is working as an escort in addition to her escort agency management. I am unsure as to how this has impacted or is likely to impact on the mother’s care of the child. The mother was untruthful in her evidence in this area and I have inferred that such evidence would not have assisted her in this respect.

33. The mother and father are unable or unwilling to sensibly manage the relationship between the child and each other.  The mother’s move to Melbourne excluding the father and paternal grandmother form the child’s life, followed by the unilateral termination of the child’s supervised time with the mother in December 2018 are but some examples of poor parenting by all parties.  I am satisfied that the mother and paternal grandmother, despite their differences, are likely to be able to work co-operatively given their past approach in this regard. 

34. Ms E poses a risk to the child.  This includes the mother’s inability to assess the risk that Ms E poses to the child.  This risk was outlined in the single expert report.

35. The mother poses some risk in taking the child outside of Australia.  That risk is ameliorated by the Airport Watch List Orders, the impact of the last recovery and the exclusion of Ms E from the child’s life.  

36. As I indicated earlier, I do not find that the paternal grandmother is a mere stalking horse for the father in terms of residence of the child. I will in any event make orders restricting such contact as submitted by the Independent Children's Lawyer.

Conclusions

1. So what do I make of all of this?

2. First, given the allegations and findings of violence the statutory presumption of equal share parental responsibility between the father and the mother does not apply. Given the evidence it could not apply and none of the parties sought such an order.

The s 60CC Factors

1. I have had regard to the factors outlined in s 60CC factors of the Act in the light of the facts and findings in respect of each of the determinations made by me as to the various parenting outcomes.

Section 60CC(2)(a) the benefit of the children having a meaningful relationship with both of the child’s parents;

1. The child has a close relationship with both parents.  I am troubled about the risks to the child in the care of the father, however I have addressed that in the following factors and elsewhere in these reasons.  The child loves the father and the evidence of the single expert is that the father is child focused and that the child was comfortable and engaged with him.  Given such evidence I am satisfied that there is a benefit in the child having an ongoing relationship with the father.

2. I reject the submission of the mother that the father has had little or no interest in the child.

3. As to the mother, the evidence of the single expert was problematic for the mother.  However, given the circumstances at the time, of the limited and supervised time the child had had with the mother and the traumatic events surrounding the child’s removal to Melbourne and recovery, that perspective was not unexpected.

4. I am satisfied that there is a benefit in the child having an ongoing relationship with the mother.  Counsel for the mother submitted that the relationship between the child and the mother was excellent.  Of that I am not so sure.

Section 60CC(2)(b) the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence;

1. The father presents as a risk to the child given his involvement in crime, his criminal activities, his criminal associates, his use of drugs (including steroids, cannabis and illegally obtained) and violence.

2. The question for this Court must be how and if that risk can be ameliorated. I am assisted by the evidence of the single expert as to how the child is treated by her father.

3. The other considerations are, the limitation of the nature and extent of the time the father spends with the child.  I will put in place injunctions, and I expect that the father will comply with those.  I will also order the father to undertake and complete a ‘Men’s Changing Behaviour’ program.  The mother will be more involved with the care of the child with the parental responsibility and time orders I will make. 

4. These will offer a greater level of protection for the child.

5. I have accepted that the mother was the victim of family violence, but I am not able to determine the extent of it, given the earlier comments I have made about the reliability of the parties evidence.  The orders I will make will require the father to keep away from the mother, especially at changeover times. 

6. I had considered supervised time between the father and the child, however in view of the nature of the orders, the comments by the single expert and the protective nature of the paternal grandmother (despite her ‘rosy’ views of the father) that such protection is not, at this stage, necessary. I am satisfied that the paternal grandmother will remove the child from the father’s care if she feels the child is unsafe.

7. As to the mother, the child needs to be protected from Ms E, and I will make orders to that effect. This risk was outlined in the single expert report.

8. As I said earlier, the mother poses some risk in  removing the child from Australia.  I am satisfied that such risk is ameliorated by the Airport Watch List Orders combined with the impact on the mother of the recovery order.

9. I have put in place injunctions as to use of drugs and the like and the need to moderate behaviour about the other party in the presence or hearing of the child. I considered the therapy recommended by the single expert, but given the mother’s present medical involvement that is in my view unnecessary.

10. As to the paternal grandmother, having to work with the mother and share parental responsibility will offer some protection in terms of the paternal grandmother’s gentle view of the father.      

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

1. The child’s age and maturity are such that her views are not a relevant factor.

   Section 60CC(3)(b) the nature of the relationship of the child with:

   (i)each of the child’s parents; and

   (ii) other persons (including any grandparent or other relative of the child);

2. I have discussed this throughout these reasons. At present the paternal grandmother is the primary person in the child’s life and seems settled in the home of the paternal grandmother, her partner and Mr F.  The child has a close relationship with the father and his partner.

3. The mother’s relationship with the child has been damaged since the recovery in June 2018, this has been further impacted by the supervised time and cessation of supervised time since June 2019.

4. The mother contends that she has an appropriate and loving relationship with the child and in part relies upon the supervision reports. I  accept that submission, although it needs to be put in perspective in terms of the comments made by the single expert.

Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long-term issues in relation to the child; and

(ii)to spend time with the child; and

(iii) to communicate with the child;

1. The paternal grandmother has, in my view, taken every opportunity to participate in making decisions about major long-term issues, spending time and communicating with the child.

2. The mother has participated in this regard, but at times has put her needs ahead of those of the child.

3. I reject the mother’s submission that the father had little to do with the child.

Section 60CC(3)(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

1. The father leaves the financial support of the child to either the mother or the paternal grandmother.

2. The mother has fulfilled her obligations to maintain the child.

Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. This is a concern.  The child’s relationship with the mother has likely diminished since the recovery of the child in June 2018.

2. If the orders sought by the mother are made then the strong and important relationship between the child and the paternal grandmother will likely diminish. I am not convinced by the mother’s evidence that she will wholeheartedly support that relationship.  The child’s relationship with the father, given the orders sought by the mother, will also likely diminish or disappear. 

3. If the orders are made as sought by the Independent Children's Lawyer all three significant relationships are likely to be able to continue and develop.

Section 60CC(3)(e) 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;

1. The mother has the income to enable the geographic difficulties arising from the distance travelling between Melbourne and Sydney to be minimised.  It will still be a burden on the child with extensive travel.  As I indicated earlier I am not convinced that the mother will encourage the relationship between the child and the paternal side of her family.

Section 60CC(3)(f) the capacity of:

(i)each of the child's parents; and

(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

1. I am satisfied that the paternal grandmother has the capacity to meet and provide for the needs the child, including her emotional and intellectual needs. This is subject to the concerns to which I referred to earlier in these reasons.

2. I am not convinced that the father can meet the day to day needs of the child, including her emotional and intellectual needs. This concern is to some degree reduced by the involvement of the paternal grandmother, her partner, Mr F and the father’s present partner.

3. As to the mother, I note the evidence of the single expert.  I have some concerns about the mother’s ability to provide for the needs of the child, including emotional and intellectual needs.  In that regard I note the removal of the child from Sydney, the mother’s at times past history of a hedonistic lifestyle, her drug use and her infoldment with Ms E.  I reiterate the comments I made about her work, not as moral judgment, but in regards to her dishonesty about it and the risk to which the child may be exposed.

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

1. Counsel for the mother submitted that the mother’s work had little bearing on this decision.  I have made comment about this earlier and in general I agree with that submission.  This is not a court of morals and the nature of the mother’s work is not in itself a disentitling factor.  What is problematic is the mother’s failure to provide truthful, cogent and reliable evidence about her work and any impact it may have on the mother’s ability to parent the child.

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)the likely impact any proposed parenting order under this Part will have on that right;

1. This was not the subject of any submissions or evidence.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

1. The mother has demonstrated a poor attitude to the responsibilities of parenthood and I reiterate the comments I have made earlier.

2. I make similar comment in respect of the father.  

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;

1. The issue of family violence has been front and centre and I have had significant regard to it.

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:

(i)the nature of the order;

(ii)the circumstances in which the order was made;

(iii)any evidence admitted in proceedings for the order;

(iv)any findings made by the court in, or in proceedings for, the order;

(v)any other relevant matter;

1. I have had regard to the family violence orders made in this respect of the mother and father.

Section 60CC(3)(l) 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;

1. Unfortunately, whatever order is made, given the circumstances of this child, it is likely one way or another that this is not the last time the circumstances of this very young child will need to be considered by a court.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant;

1. I have considered all of the relevant facts and circumstances individually and collectively.

2. Had this been a contest between the mother and father, the child would have been placed in the primary care of the mother and the child’s time with the father would have been subject to the overseeing of it by the paternal grandmother.  But it is not that simple, and the mother’s parenting and flagrant disregard of Court orders and concerns about her care of the child have led to a different result. 

Conclusion

1. This is a difficult matter.  Given all of the evidence, including that of the single expert, the mother may not be a candidate for primary care of the child.  I accept the evidence of the paternal grandmother that the child was significantly in her care until the orders were made in late 2017 that the child move towards residing with the mother.

2. The mother did not take that opportunity that was offered to her, instead she undermined the role of the paternal grandmother and hid the child in Melbourne for a number of months.

3. I have heard the mother’s evidence and find that it is unlikely that the mother will encourage a relationship between the child and the paternal grandmother.  It is further unlikely that the mother will facilitate a relationship between the child and the father.

4. The paternal grandmother gave evidence about her care of the child.  There is no doubt she cares well for the child and that the child’s needs are met.  The child is loved in the paternal grandmother’s home with her husband, Mr F and, from time to time the father.

5. There are two significant problems in the child remaining in the paternal grandmother’s care.  The first of these is that the paternal grandmother has little respect or regard for the mother.  When being cross-examined by the mother’s counsel the paternal grandmother made it abundantly clear that she treated the child as her own and that the mother’s behaviour was such that the child was ‘at risk’ in the care of the mother. 

6. There was little from that evidence which gave any comfort that her attitude would change.  The paternal grandmother was forgiving of the behaviours of the father, including it would seem his association with outlaw groups.  She included her lack of inquisitiveness as to how the father funded his life.

7. The paternal grandmother’s easy acceptance that the father was no longer involved in violence, drugs, or intimidation gives rise to concerns as to the extent of her protectiveness towards the child insofar as the father was concerned.  This was despite evidence that the father had been involved in obtaining drugs which would otherwise only be available on prescription through illicit sources, that the father is likely to have been a regular user of cannabis, that there is corroborated evidence of violence against the mother and that his explanations of his involvement in the groups are frankly inherently implausible. 

8. The paternal grandmother effectively stopped the supervised contact between the mother and the child arranged through a reputable commercial children’s contact service.  This was done unilaterally in circumstances were an application could and should have been made to the Court.

9. Efforts were made to switch the blame to the mother.  The mother ought to have taken the time with the child on Christmas Eve, but did not do so.  However, it is clear that the paternal grandmother struggles to promote the relationship.

10. Second, it is likely that the paternal grandmother will eventually conclude that the father is safe for the child.  Given her ‘tin ear’ in relation to complaints about him and her blindness to his faults, that is likely to occur.

11. This will be particularly the case if the father’s current relationship works out and more grandchildren come into the world.  The paternal grandmother has made no enquiries as to the way the father funds his lifestyle which is more likely than not from the proceeds of crime.

12. As a consequence in the interregnum between the January hearings and the final day on 22 March 2019 the Court put in place arrangements for the child to spend supervised time with the mother and further recommended that some steps be taken for the mother and paternal grandmother to see whether they could at some levels resume the relationship they had in 2016 to enable this child to have some chance of a childhood and some chance of knowing those who love her.

13. The paternal grandmother was asked whether she would consent to orders restricting the time that the child spent with the father. She said she would do so. I intend to make orders restraining the paternal grandmother from allowing the father to have any significant time with the child without the consent of the mother or an order of a court exercising jurisdiction under the Act.

14. All of the parties agreed that there ought to be an order that the child remain on the Airport Watch List until she attains the age of 18 years.  I will make that order by consent.

15. I raised the question about obtaining a passport for the child.  Neither the mother nor paternal grandmother thought that was a good idea and believed that ought to be left to the circumstances, if and when they arise in the future.  I adopted that approach.

Residence

1. One of the issues in this case is the ability of the mother to parent the child.  I have spoken earlier in relation to her unwillingness to promote a relationship between the child and the father.  At some levels this is justified, but what is unjustified is her unwillingness to foster the relationship between the child and the paternal grandmother who has, to all intents and purposes, been the main attachment figure throughout the child’s life.

2. There is no doubt that the child has a close relationship with the paternal grandmother and that she is meeting the child’s physical and emotional needs, except as to her interaction with the mother.[48]

   [48] Single expert report paragraph 178.

3. I accept that the mother has a good relationship with the child.  This is evidenced by the single expert in her report and in the three reports from M Group.  However, the single expert had concerns about the mother’s ability to care for the child[49].  Some of those issues are also set out earlier in the report under the heading ‘concerns about [the mother’s] care of the child’.

   [49] Single expert report paragraph 170.

4. I accept that the mother’s employment and involvement of Ms E, including, the enlisting her or using her to avoid the recovery of the child, is troubling.  I accept the evidence of Mr E that the mother would often go out and would be in company with other women.  The views of the paternal grandmother and the father are, in my view, exaggerated.  However, it is clear that the mother devoted her time to either her social life or business and not to the child.

5. Further, the mother seems intent on manufacturing claims against the father and the paternal grandmother.  The mother’s close examination of the child and complaints to the Child Contact Services is one example, the mother’s allegations about the father being sexually inappropriate with the child (albeit made when the mother was drunk) are likewise troubling.

6. As I said earlier, the criticisms of the mother in relation to the allegations that the violence which she claims or the sexual abuse which she claims ought to be discounted.  I am able to find that the mother was the subject of physical, emotional and verbal violence from the father. I am unable to make a positive or negative finding as to the allegations of sexual abuse.

7. What is clear, however, is that the mother will not support a relationship between the child and the father.  More importantly, I believe that she will struggle with supporting the child’s relationship with the paternal grandmother, Mr F and the paternal grandmother’s partner.

8. In relation to residence, I am not satisfied that the mother’s lifestyle in Melbourne is as she asserted.  I am satisfied that she is likely to have glossed over any unsavoury or dangerous elements in relation to her life in Melbourne and glossed over the danger that Ms E had presented to the child. 

9. The mother’s approach in removing the child from New South Wales in breach of the court orders and then engaging in subterfuge and the like and plain fabrication to prevent the return of the child is deeply troubling.

10. Further, I am satisfied that the paternal grandmother provided a stable household for the child.

11. Given all of the matters set out above I am satisfied that there ought to be an order that the child live with the paternal grandmother, but that the child should have regular unsupervised time with the mother.  If the mother decides to live in Sydney then she should have significant and substantial time with the child.  I considered equal time but that would seem to be more about the parents than the child, given her present circumstances. 

12. However, significant and substantial time should apply and I intend to make that order if the mother choses to live in Sydney.  Otherwise geography interferes and the child could only spend each alternate weekend with the mother.

Parental Responsibility

1. Given the mother’s history of non-compliance of court orders and her endeavours to hide the child from the Australian Federal Police in May and June of 2018, together with the mother’s abduction of the child from Sydney, there is a real concern about the mother having sole parental responsibility.

2. The father cannot have parental responsibility.  He is associated with outlaw groups, even though he says he is not so now.  I am not convinced.  He has a history of violence, intimidation and fabrication of evidence.  It would be impossible for these parents to operate in the sense of equal shared parental responsibility.

3. The paternal grandmother has been a significant carer, if not the primary carer, of the child until May 2018 and then the primary carer from June 2018.

4. She sees little wrong with the father and is susceptible to his fabrications about what he does, his violence and the like.  The father was brought up in a violent household with the paternal grandmother and I suspect there is some limitation of their acceptance of what is family violence and how to manage it.

5. I am satisfied that there ought to be equal shared parental responsibility between the mother and the paternal grandmother.  The effect of this will be that each will monitor the other and provide a better level of safety and care for the child. 

6. I am satisfied that the mother and paternal grandmother can work together given the orders I will make.

Time with the father

1. For the reasons set out above the father may spend whatever time with the child in the presence of the paternal grandmother, or her husband, as is permitted by the paternal grandmother. I was concerned during the course of the trial that the paternal grandmother may have been a ‘stalking horse’ for the father.  I am satisfied that that is not the case.

2. The paternal grandmother has been a significant, if not primary carer for the child throughout her life.  However, given the concerns I have outlined above I am not satisfied it is in the child’s best interests to spend significant and substantial time with the father, except on the limited occasions during the day and at times when he is with either the paternal grandmother or her husband.

3. This clearly cannot continue many years into the future, and provided that the father’s association with criminal elements and propensity towards violence changes or is significantly ameliorated, then the orders suggested by the Independent Children’s Lawyer makes sense.

4. In addition, the father indicated that he would undertake some sort of counselling and I intend to make an order that he attend a ‘Men’s Changing Behaviour’ program within twelve months.

5. In the meantime the father will spend time with the child at the paternal grandmother’s home or in his own home on the limited occasions provided in the orders.  In due course the paternal grandmother can write to the mother and tell her what additional time the father is spending and then the mother and paternal grandmother can discuss the benefit of that.  If need this can be with the help of counselling or a Family Relationships Centre).  This will provide protection for the child, but enable her close relationship with the father to continue and also to develop a relationship with the father’s present partner.

Broad scope of spend time with orders

1. This case was conducted on the basis that the mother lives in Melbourne and that she is afraid to live in Sydney. I have some doubts as to whether the mother’s fears of harm by the father are exaggerated or not. Given the father’s background the fears may well be real and may have some substance.

2. However, the mother lived in Sydney for years after separation and consented on more than one occasion to orders requiring her to live in Sydney. He evidence is that her business does not need her to be based in Melbourne and can be operated and managed from anywhere with electronic connectivity.

3. Given those circumstances I have structured the orders so that if the mother’s fears are a forensic device for the purpose of this hearing, it is open for her to return to Sydney and spend significant and substantial time with the child

Costs of the Independent Children's Lawyer.

1. Legal Aid New South Wales incurred expenses of the Independent Children’s Lawyer totalling $13,667.50. 

2. The mother conceded that given her income it was appropriate for her to pay one third, with the other two thirds as between the father and the paternal grandmother.

3. Given the income of the mother I am satisfied that she should pay one half of that cost.

4. Given the circumstances of the paternal grandmother in taking responsibility for the child and having the responsibility for the child it would seem unjust to impose upon her another expense.

5. It was not clear to me as to the father’s sources of income.  He has a lifestyle well beyond the income that to which he deposes.  I have grave doubts about the veracity of his evidence and his disclosure as to income.  There is no reason why the father cannot find sufficient monies to meet half the costs of the Independent Children’s Lawyer and I propose to so order.

6. Given all of the circumstances, I will make the orders as set out earlier in these reasons.

I certify that the preceding three hundred and fifty five (355) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 15 April 2019.

Associate:     

Date:  15 April 2019