Offer and Haggerty
[2016] FCCA 129
•28 January 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| OFFER & HAGGERTY | [2016] FCCA 129 |
| Catchwords: FAMILY LAW – Parenting – change in residence application for child to be returned to Mother’s primary care after significant period in Father’s care – very significant geographical distance between residence of each parent – Father unwilling to facilitate contact between child and her Mother – significance of child’s relationship with her younger sister who lives with her Mother – Father’s significant history of use of alcohol and violence which included time in gaol for assault while affected by alcohol – Father’s failure to file material pursuant to Court orders since August 2014 – Father granted leave to file further material and submissions after the trial but nothing filed despite assurances that he would do so. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC(2)(a) & (b), 60CC(3)(a) – (m) |
| In the Marriage of Cullen (1981) 8 Fam LR 35; (1981) FLC ¶91-113 |
| Applicant: | MR OFFER |
| Respondent: | MS HAGGERTY |
| File Number: | CAC 1115 of 2014 |
| Judgment of: | Judge Neville |
| Hearing date: | 28 & 29 July 2015 |
| Date of Last Submission: | 16 September 2015 |
| Delivered at: | Canberra |
| Delivered on: | 28 January 2016 |
REPRESENTATION
| Counsel for the Applicant: | Self represented |
| Solicitor/advocate for the Respondent: | Ms M Burgess |
| Solicitors for the Respondent: | ACT Legal Aid |
| Solicitor/advocate for the Independent Children's Lawyer: | Mr K Robinson |
| Solicitors for the Independent Children's Lawyer: | Robinson + McGuinness |
ORDERS
All previous Orders be discharged.
PARENTAL RESPONSIBILITY:
The parents have equal shared parental responsibility for the child X born (omitted) 2009 (“the child”).
The parents shall keep each other informed of their residential address and telephone numbers at all times.
The parents shall ensure they are each authorised to receive information from the child’s school and any treating medical practitioners.
The Father shall refrain from drinking alcohol to excess at any time the child is in his care.
Each of the parents shall inform the other as soon as practicable of any significant health or educational issue relating to the child.
LIVING ARRANGEMENTS:
The child live with the Mother.
The child is to be returned to the care of the Mother within seven days from the date of these Orders.
The child spend time with the Father as follows:
(a)From the making of these orders to the commencement of the 2016 Term 3 school holidays:
(i)For two periods of seven days commencing on 28 December 2015 and 16 January 2016 during the 2015/16 Christmas school holiday period;
(ii)During the Term 1 and 2 school holiday periods in 2016 for seven days commencing on first Sunday after the conclusion of terms;
(b)From the commencement of the 2016 school holidays
(i)During the terms 1, 2 and 3 school holidays each year commencing on the first Sunday after the conclusion of term and ending on the Tuesday of the second week of the holidays;
(ii)For three weeks during the Christmas school holidays as follows:
(iii)For two weeks commencing on 28 December in 2017 and each second year thereafter;
(iv)For two weeks commencing on the first Sunday after the conclusion of school in 2016 and each second year thereafter;
(v)From 18 to 25 January each year;
(c)From after school on Friday until the commencement of school on Monday (or Tuesday if Monday is a Queensland public holiday) three times each school term, providing the father gives the mother 14 days’ notice of his intention to travel to Queensland for that purpose.
TRAVEL ARRANGEMENTS:
For the purpose of these Orders and unless otherwise agreed in writing (including SMS messages), the parents shall meet at (omitted) for the purposes of school holiday time.
Where possible, changeovers are to be conducted by third parties, to reduce contact between the parents.
TELEPHONE COMMUNICATION:
The parent with the care of the child shall allow and facilitate telephone calls between the child and the other parent each week as follows:
(a)Each Tuesday at 5.30pm, or at a time agreed between the parties, with the father initiating the phone call.
(b)Each Friday at 5.30pm, or at a time agreed between the parties, with the mother initiating he phone call.
INJUNCTION:
The Mother be restrained by injunction from bringing the child into contact with Mr S during any time the child is living with the Mother, including in person, by telephone or other electronic means.
ADDITIONAL ORDERS:
Both parents are restrained from saying unkind or unpleasant things about the other parent to the child, in their presence, or allowing any other person to do so.
Both parents are restrained from discussing these Court proceedings with the child, or doing so in their presence, or allowing any other person to do so.
Both parents must complete a post-separation parenting course, within twelve months from the date of these Orders, and must provide evidence of completing this course to the Independent Children’s Lawyer as soon as it is available.
Both parents must complete a course that addresses alcohol and substance abuse and the impacts such behaviour may have on parenting, within twelve months from the date of these Orders, and must provide evidence of completing this course to the Independent Children’s Lawyer as soon as it is available.
Pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
Pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.
IT IS NOTED that publication of this judgment under the pseudonym Offer & Haggerty is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 1115 of 2014
| MR OFFER |
Applicant
And
| MS HAGGERTY |
Respondent
REASONS FOR JUDGMENT
Introduction
This parenting matter concerns 6 year old X, who had formerly lived with her Mother in Queensland, but in more recent times has lived with her Father in country New South Wales. The primary issue is whether X should return to live with her Mother (and younger sister, Y) and spend time with her Father, or continue to live with her Father and spend such time as she is able with her Mother.
In my view, the evidence points clearly to X returning to live with her Mother. Such a course is patently in X’s best interests.
At par.64 of the Family Report (Exhibit A), the family consultant, Ms D, stated:
X’s (age 6) distressed behaviour at the Court, indicated a child who is emotionally fragile. Mr Offer appeared uncertain how to respond when X became upset. Ms Haggerty took the initiative in attempting to console X. X is a young child who is caught at the centre of a dispute that she is finding bewildering and emotionally challenging, as she is involved in a situation that she is too young to comprehend, and does not have the emotional capacity to regulate her feelings as seen in her upset at the Court when faced with an unusual situation.
Later in the Report, Ms D recommended that X return to live with her Mother in Queensland, and spend regular time with her Father, who continues to live in the country New South Wales town of (omitted).
The experienced Independent Children’s Lawyer (“the ICL”) submitted that it was likewise in X’s best interests that she return to live with her Mother in Queensland.
For the reasons that follow, I accept the recommendations of the family consultant, and the submissions of the ICL, and make orders as proposed by the ICL (which mirror, to some degree, those sought by the Mother).
I should note at the outset that the matter – both at trial and subsequently – was somewhat more difficult not only because the Father’s legal representation ceased in June 2015 (which is not a criticism) but more particularly because (a) the Father filed no material in support of his Initiating Application beyond what had been filed in August 2014, and (b) even after being granted a further extension of time to file written submissions (which the Father had promised at the end of the trial to do) he failed to do so. Accordingly, and giving every allowance for the Father conducting his own case, the Court had precious little evidence from him, and ultimately no submissions at all.
I should also note that once the Father turned up at the hearing rather late – having had car problems on his journey to Canberra – he sought an adjournment. He said that he had been seeking alternative legal representation but without success. I pointed out to him that the matter was fixed for trial in February 2015, and it was now July. The Mother had flown down from Queensland for the trial. Both the Mother and the ICL opposed the Father’s oral application for an adjournment.
In the result, I dismissed the oral application for an adjournment of the trial but gave the Father the opportunity to file any updating material after the trial concluded. He did not do so; he has not done so.
In the course of the preliminary discussion with the Father at the outset of the trial I pointed out to him the difficulties he had caused for himself and for everyone else involved in the litigation by not having filed anything in support of his Application. Fairly, he readily acknowledged this.[1] To make matters worse, very unfortunately the Father also brought no papers with him to the trial – such as his own documents filed, the family report. The ICL kindly provided the Father with his spare copy of the family report.
[1] See Transcript (28th & 29th July 2015) p.11. Hereafter all such references will be simply “T” followed by the page number.
The ICL set out in his submissions (filed 16th September 2015) a brief procedural background, and more significantly the range of issues to be determined (with which I agree):
1) The hearing commenced midway through the first day after the Father was delayed due to vehicle difficulties. At the conclusion of the second day of hearing, there was insufficient time for the parties to make oral submissions and Directions were made for the filing of written submissions by each of the parties and the Independent Children’s Lawyer. It had been a feature of the conduct of the trial that the Father had filed very little evidence in writing and the Father was given a further opportunity to file evidence in his own case notwithstanding both parties had given oral evidence.
2) The Father has not filed any further application or sought to place any further evidence before the Court. The Father has not filed any written submissions or a Minute of Orders Sought. The Mother filed a Minute of Orders Sought at the commencement of the hearing and has since filed written submissions. The Independent Children’s Lawyer filed a Case Outline prior to the commencement of the hearing.
3) In the Case Outline the Independent Children’s Lawyer identified the following issues remaining in dispute:
a) With whom should X live?
b) What order for parental responsibility should be made?
c) Is the presumption in favour of an order for equal shared parental responsibility (section 61DA) rebutted?
d) Is the Mother’s failure to initiate proceedings following the alleged withholding of X by the Father in April 2014 a relevant factor in determining the attachment of X to each parent and the extent to which each parent has facilitated X’s relationship with the other parent and/or the extent to which each parent has sought to engage in a relationship with X?
e) Is the Father’s alleged conduct in failing to make X available to spend time with her Mother a relevant factor in determining with whom X should live?
f) Does the Father have an alcohol problem impacting on his ability to effectively parent X?
g) Do the Father and/or the Mother have a drug addiction impacting on his/her ability to effectively parent X?
h) What order should be made for X to spend time with the non-resident parent, in particular noting the distance between the residences of the Father and the Mother?
i) Where should changeover take place to give effect to orders for X to spend time with each parent?
j) The frequency of telephone contact for the non-resident parent.
k) Is there sufficient evidence before the Court of X’s attachment to each parent and the likely effect of any change of arrangements?
l) Is there sufficient evidence before the Court of the parenting capacity of each parent and the psychological health of each parent?
Orders Sought
According to his Amended Initiating Application, filed 4th August 2014 (in the Young Local Court), the Father sought that (a) the parties have equal shared parental responsibility, (b) X should live with him and (c) X should spend time with the Mother as agreed between the parties.
The Mother’s Orders Sought were in the following terms (they have been amended to reflect the Mother’s consistent position of X returning to her care; curiously, as provided to the Court, they provided for X to remain living with her Father, which clearly was a drafting error!):
1) That the parents have equal shared parental responsibility for the child X born (omitted) 2009.
2) That the parents shall keep each other informed of their residential address and telephone numbers at all times.
3) That the parents shall ensure they are each authorised to receive information from the child's school and any treating medical practitioners.
4) That the father shall refrain from drinking alcohol to excess at any time the child is in his care.
5) That each of the parents shall inform the other as soon as practicable of any significant health or educational issue relating to the child.
LIVING ARRANGEMENTS
6) That the child live with the Mother.
7) That the child spend time with the Father as follows:
a) During the term 3 school holidays in 2015 commencing on the first Saturday after the conclusion of the school term and ending on last Saturday of the holidays before the resumption of school;
b) For the first four weeks during the 2015/16 Christmas school holidays.
TRAVEL ARRANGEMENTS
8) That for the purposes of these Orders and unless otherwise agreed, the parents shall meet at (omitted) for the purposes of school holiday time.
PHONE COMMUNICATION
9) The parent with the care of the child shall allow and facilitate telephone calls between the child and the other parent each week as follows:-
a) Each Tuesday at 5:30pm, or at a time agreed between the parties, with the father initiating the phone call.
b) Each Friday at 5:30pm, or at a time agreed between the parties, with the mother initiating the phone call.
The ICL’s orders sought were in the following terms (deliberately they have been kept in the exact for as submitted notwithstanding that they provide for certain time periods that have already lapsed or passed):
PARENTAL RESPONSIBILITY
1) That the parents have equal shared parental responsibility for the child X born (omitted) 2009.
2) That the parents shall keep each other informed of their residential address and telephone numbers at all times.
3) That the parents shall ensure they are each authorised to receive information from the child’s school and any treating medical practitioners.
4) That the father shall refrain from drinking alcohol to excess at any time the child is in his care.
5) That each of the parents shall inform the other as soon as practicable of any significant health or educational issue relating to the child.
LIVING ARRANGEMENTS
6) That the child live with the mother.
7) That the child spend time with the father as follows:
8) From the making of these orders to the commencement of the 2016 Term 3 school holidays:
a) For two periods of seven days commencing on 28 December 2015 and 16 January 2016 during the 2015/16 Christmas school holiday period;
b) During the Term 1 and 2 school holiday periods in 2016 for seven days commencing on first Sunday after the conclusion of terms;
From the commencement of the 2016 school holidays
a) During the terms1, 2 and 3 school holidays each year commencing on the first Sunday after the conclusion of term and ending on the Tuesday of the second week of the holidays;
b) For three weeks during the Christmas school holidays as follows:
i.For two weeks commencing on 28 December in 2017 and each second year thereafter;
ii.For two weeks commencing on the first Sunday after the conclusion of school in 2016 and each second year thereafter;
iii.From 18 to 25 January each year;
9) From after school on Friday until the commencement of school on Monday ( or Tuesday if Monday is a Queensland public holiday) three times each school term, providing the father gives the mother 14 days’ notice of his intention to travel to Queensland for that purpose.
TRAVEL ARRANGEMENTS
10) That for the purpose of these Orders and unless otherwise agreed, the parents shall meet at (omitted) for the purposes of school holiday time.
TELEPHONE COMMUNICATION
11) The parent with the care of the child shall allow and facilitate telephone calls between the child and the other parent each week as follows.
a) Each Tuesday at 5.30pm, or at a time agreed between the parties, with the father initiating the phone call.
b) Each Friday at 5.30pm, or at a time agreed between the parties, with the mother initiating he phone call.
INJUNCTION
12) The Mother be restrained by injunction from bringing the child into contact with Mr S during any time the child is living with the Mother, including in person, by telephone or other electronic means.
It might be appropriately noted here that, in the Court’s view, it is appropriate that there be orders – on any view of the evidence, and in the light of certain recommendations – which provide for both parents to complete post-separation parenting course, for courses to be completed that deal with alcohol and substance abuse, for non-denigration and non-discussions orders, and if possible, for changeovers to be effected or facilitated by third parties.
The Father’s Oral Evidence
By way of summary, the main issues upon which the Father was cross examined related to X coming into his custody in April 2014: on the Mother’s account – X was to spend a holiday with her Father, and to give the Mother some respite while she moved residence; on the Father’s account, both of the Mother’s children – X and her younger sister Y (aged almost 3 years or thereabout) – were returned to their separate Fathers because the Mother was not coping with them.
The Father was also questioned about his time in prison for an assault on another person, his use of alcohol, and his [alleged] controlling behaviour towards the Mother.
First, the Father rejected the proposition that when X came into his care – it not being disputed that the Mother had been her primary carer otherwise for all her life until this time – it was intended that it be only on a temporary basis.[2]
[2] T 17.
Secondly, he also rejected the Mother’s affidavit evidence that she arranged for X to visit the Father when he was in prison on six occasions. The Father said that X visited him only twice, and on both occasions it was facilitated by others.[3]
[3] T 19.
Next, he also rejected the proposition that he had let the Mother believe that he would return X to her Mother.[4]
[4] T 20.
The Father confirmed that he undertook a detoxification program at the end of his term of imprisonment; it was part of his parole, he said. He confirmed that his probation and parole personnel tested him for cannabis, and he tested positive.[5] The Father blamed the Mother for him having to undergo a detox program. He confirmed that prior to entering prison he had had issues with alcohol.
[5] T 22.
The Father confirmed that the Mother took out an apprehended violence order (“AVO”) against him in 2010. He was later convicted of breaching this order. He agreed that the object of the AVO was to keep him away from the Mother when he had been drinking.
Somewhat curiously, the Father said that he and the Mother had many arguments but there was no violence involved.[6] He also said that there were many lies in the Mother’s affidavit material; this comment or claim came in the midst of a number of questions to the Father about various incidents where it was alleged that the Father had been violent towards the Mother.
[6] T 25.
The Father was taken through his police record, which included various drink driving offences, and that his first assault conviction came in 2003. He confirmed that he had been drinking at the time of that offence. He agreed that he had been charged also with offences relating to driving recklessly, and that in 2004 he was charged and convicted with threatening violence to certain persons. He was charged also with hindering and intimidating police, for two counts of common assault in 2004, for resisting police, using offensive language near a public place or school (alcohol was involved); in 2010, two further charges of common assault (again, alcohol was involved); drink driving offence in 2010; a further breach of an AVO in 2010.
Then in 2011, the Father was convicted of assault occasioning actual bodily harm. He said that he went to a person’s house to speak to him, and that it got “out of hand”, because that person “got bashed.”[7] The “bashing” was perpetrated on the victim by the Father and the Father’s mate. The Father agreed that he had been drinking beforehand. This assault led to the Father being sentenced to 18 months gaol.[8]
[7] T 32.
[8] T 34. See also Exhibits C (NSW Police Records regarding the Father) and D (the Father’s probation and parole records).
Very concerningly, the Father said that he would have bashed the victim just referred to whether he had been drinking or not; it was [just] “an emotional thing.” [9]
[9] T 36.
The father said that his time in prison gave him time to think, and that he started counselling while incarcerated. He also said that he continued with counselling, every two weeks. He has done, he said, drug and alcohol counselling, as well as anger management.[10]
[10] T 37.
Notwithstanding that the Father said that he was [now] rehabilitated, as he recounted to the family consultant, Ms D, he confirmed that he was involved in an altercation at a pub in January 2015. He punched someone who had, he said, ‘grabbed a girl on the private parts.’ It was not, he said, “emotional” or alcohol related, but it was because the person had shown disrespect for the woman.[11] Later in his evidence, he changed his account somewhat and confirmed that he had been drinking for about two hours before the altercation.[12] The Father was charged and convicted, he paid a fine, and also paid for the victim’s dental work.
[11] T 38.
[12] T 63.
To pause here: there is clearly a history of alcohol related violence by the Father, some of which has taken place while X has been in his full-time care. This causes the Court to be very concerned at this lack of control, and his lack of insight into responsible parenting, and about the effects of alcohol.
The Father’s positive drug test for cannabis was in April 2015.[13]
[13] T 41.
The Father confirmed, with some reluctance, that when he enrolled X in the local school he did not put the Mother’s name on the enrolment form.[14] As with a significant amount of his testimony, he said he could not remember why he did not do so, even though he put members of his family on the form as emergency contacts. He confirmed that his family help him with the care of X.
[14] T 44.
The Father said that although he and the Mother get along, they are unable to agree on anything.[15] He said that it was important for X to spend time with her Mother, but confirmed that he had not made any proposal for this to occur.[16] He confirmed that the Mother had made proposals for X to spend time with her.
[15] T 53.
[16] T 55.
Surprisingly, given X’s age, the Father confirmed that he had spoken with her about the Court proceedings. He said she needed to know about them.[17]
[17] T 58.
The Father confirmed that X was upset when she saw her Mother during the interviews with the family consultant because she had missed her, and because she wanted her Mother to drive her back to (omitted).[18]
[18] T 59.
X was attacked by a dog some years ago. She required plastic surgery. The Father admitted that he should have contacted relevant medical practitioners to check on X’s follow up treatment, which had been arranged by the Mother.[19]
[19] T 60 -61.
There was some discussion with the Father about whether he had any knowledge of the Mother having any mental health issues, such as depression, during their relationship. In my view, he sought to present a picture that down-played his knowledge of such matters. For example, he said it was none of his business to ask any questions of the Mother about her mental health even during the relationship. He said that he really only focussed on his daughter and not on the Mother’s mental stability, which he said he thought was related to the Mother’s upset at breaking up from her boyfriend, the Father of her daughter, Y.[20]
[20] T 69 – 72.
In passing the Father confirmed that he would be placing more material before the Court, using his new solicitor, in the week following the trial, and that he had secured funds to do this. He confirmed that if given time he would file more material, which would include an array of SMS messages from the Mother regarding the child.[21]
[21] T 72 – 73.
As already noted, the Father was given extra time to file material but did not do so. He was also given extra time to file written submissions – over and above the timetable set at the conclusion of the trial – but he filed nothing.
After X came into his care, the Father said he tried to promote the child’s relationship with the Mother by facilitating telephone calls, but that when he did so, the Mother abused him. He said the calls between the child and her Mother were probably 2 – 3 times per week. He would initiate perhaps half of them, and the Mother the other half.
The Father confirmed that, in terms of face to face time between Mother and daughter, in his view the onus or responsibility for arranging this was solely on the Mother.[22]
[22] T 76.
The Father confirmed that the Mother had contacted the Father’s probation and parole officer to complain that the Father had “kidnapped” the child. He also said that the parental difficulties between the Mother and the Father had nothing to do with the child. Later he confirmed, it appeared with some reluctance and with the benefit of hindsight, that he should have done something much earlier than he did to initiate contact between the Mother and the child.[23]
[23] T 80 – 82.
Later in his evidence, on the second day of the trial, the Father said that X’s relationships with her Mother and her sister, Y, were a priority.[24]
[24] T 94.
After confirming how upset X was at the interview with the family consultant about not spending more time with her Mother and wanting her to drive her back to (omitted), the Father was asked questions about him facilitating time between X and her Mother after those interviews. He said that he did not hear from the Mother, and also that he did not contact the Mother.[25]
[25] T 96 – 97.
The Father confirmed that for the 18 months that he was in prison, only he could initiate telephone calls with X because it was not possible for the Mother to call up the gaol and ask to speak to the Father.[26]
[26] T 97.
He again confirmed that he did not see that it was his responsibility to facilitate X’s time (even via telephone) with her Mother, among other things, because he took the responsibility to do so when he was in prison.
At trial he said that he would ensure that X called her Mother every Tuesday evening. He had not initiated a regular telephone call prior to the trial.[27]
[27] T 98.
The Father confirmed that he did not tell the Mother that X had won an award at school.[28] X’s school report, and separate letter (dated 24th February 2015) relating to school absences, became Exhibits F and H. According to these reports, X is doing well at school.
[28] T 104.
In relation to the incident where X was attacked by a dog and was hospitalised as a result, the Father said that he could not visit her because his bail conditions prevented him leaving (omitted) because of the severity of the offence of which he had been found guilty. He was advised by his then lawyer that he would not be successful in seeking to have his bail conditions changed to enable him to visit X in hospital.[29] He did not follow up with the Mother about any of the medical appointments for X.
[29] T 106 – 109.
Under questioning about an earlier conviction for assault in 2005, the Father said he could not remember the incident. Indeed, he confirmed that he did not remember who he had assaulted.[30]
[30] T 114.
No less concerning were a number of matters put to the Father arising out of records produced by the NSW Probation and Parole service. These matters were referred to by Probation and Parole, who noted that the Father appeared to be superficial in his engagement with services to address his “alcohol problem”, and which “problem” had been confirmed by his family to this same service.[31] Notwithstanding his agreement with such statements, he also continued to hold that he did not have a problem with alcohol.
[31] See T 116 – 122. Records regarding the Father from the Office of General Counsel, Probation & Parole became Exhibit D.
He said that in relation to the Mother’s care of X, he had no concerns; he said that she was “a good Mum.”[32]
[32] T 128.
The Mother’s Oral Evidence
The Father asked no questions of the Mother in cross examination. Accordingly, the following responses from the Mother came via questions primarily from the ICL, and occasionally from the Bench.
The first questions related to the Mother’s and X’s time together after the interviews for the family report. The Mother commented that X became upset and asked why she could not come home with her Mother.[33] She confirmed that she contacted the Father on a number of occasions to arrange time for her to spend with X. It did not occur. She said that despite numerous attempts to contact the Father there was no response from him.
[33] T 138.
The Mother confirmed that she moved to Queensland in April 2012, which was shortly before the Father was incarcerated. Ultimately she settled in a place called (omitted) and did so because her Father and his partner (who is not the Maternal Grandmother) reside there. She said her Mother’s side of the family is in (omitted) but she has no contact with them.[34]
[34] T 141 – 142.
There was a reasonably extensive discussion with the Mother regarding her efforts to facilitate X spending time with or visiting her Father whilst he was in prison. The Mother stated often that she did not actually take X to the prison to visit her Father but rather she arranged for X to visit her paternal Grandparents and they would take X to visit her Father at the prison.[35] She also confirmed that at the time that the Father went into gaol X was three years old, and five years old when her Father was released.
[35] Generally, see the extended discussion at T 143 – 147. This discussion also included details of telephone contact between Father and daughter.
The Mother confirmed that as soon as she moved to Queensland (in 2013) she was diagnosed with depression and anxiety. This led to her being prescribed medication to deal with these conditions. For approximately six months or so, the Mother was seeing a psychologist regularly.[36] Then, in consultation with her general practitioner, she confirmed that she ceased medication in 2014. It was shortly after coming off her anti-depressant medication that the Mother sent a SMS message to the Fathers of her children – X and Y – saying that she could not handle the parenting of them and asking the Fathers to look after the girls.
[36] T 153 - 155.
She said that when she had a “meltdown” (which was around the time of sending the SMS message just mentioned) she went back to her GP who confirmed that it would take approximately two to three weeks for the anti-depressant medication to cease its effects on her.
She said that Y's Father (Mr F) knew she was coming off her medication and that he did not take her SMS message seriously. In fact, Y never went to stay with her Father. She said that she also advised Mr Offer that she was moving residence and also coming off her medication. She said that she did this also via SMS. She said that her only response from the Father was that he would pick up X. She said that the Father commented to her that he could never take X from her full time.[37]
[37] T 156.
The Mother said that, some weeks after she sent the SMS message about the daughters going to live with their Fathers, she spoke with Mr Offer and told him about coming off her medication and that she expected X to return to her care at the end of the school holiday.[38]
[38] T 157.
The Mother confirmed that in subsequent and ongoing telephone conversations with the Father, he said that he would be returning X to her care. She said that after some weeks she sought legal assistance in Queensland but was advised that those lawyers could not represent her in the ACT. She did not get a second opinion about this advice, which was clearly wrong. She took no other steps about seeking the return of X to her care because, she said, she relied upon the advice of the [private] lawyers she consulted.[39]
[39] T 159.
The Mother said she became aware of parenting orders made in the Young Local Court in August 2014; she appeared before that Court by telephone.
It seems that it was only after these August 2014 orders were in place that the Mother sought legal assistance from the Legal Aid Office, ACT. She had no explanation why she did not take action in the ACT sooner, other than she was looking after Y, who was one year old at the time and spending each alternate weekend with her Father.[40]
[40] T 163.
The Mother confirmed that she spent time with X over Christmas 2014; this was initiated by the Mother’s lawyer contacting the Father’s then lawyer. The Mother travelled to (omitted) for this contact to occur. Because the visit was conditional on the Mother not taking X away from the Father’s property, the Mother stayed at the Father’s residence during this visit. Unsurprisingly, the Mother said that she was not “comfortable” spending time with X at the Father’s residence. She said the Father behaved “disgustingly” during her two week visit, saying that he was drunk every day, sometimes “leglessly” or “radically” drunk.[41] The Mother had her other daughter, Y, with her, for this visit.
[41] T 164 - 165.
During this time, with the Father’s consent, the Mother and the two girls, X and Y, went to (omitted) for a few days. They stayed with the Mother’s Uncle. And just before the Mother’s scheduled return to Queensland, X refused to get out of her Mother’s car at the Father’s residence. Following this and some discussion between the parties, the Father lodged a contravention application in the Young Local Court against the Mother. It was dismissed.
After the Mother returned to Queensland, she said that she had “constant” telephone contact with X by telephone, but she did not take any further legal action, among other things, because the Father had parenting orders from the Young Local Court. The next time the Mother saw X was during the interviews for the family report in February 2015.
The Mother confirmed at trial that she does not have a partner. She has a “friend”, Mr S. Mr S has been accused of being part of a criminal gang called “(omitted)”. The Mother confirmed that it was her understanding that Mr S has been charged with over 100 offences, primarily, it would seem, related to robberies from cutting open ATM machines. Photographs from the local (omitted) paper (the (omitted)) were supplied (Exhibit E), which confirmed “(omitted)” were responsible for such offences.
The Mother said that her relationship with Mr S was only a “fling”, which took place about one year ago; that he lives on the (omitted), while she lives in (omitted) (which is in the (omitted) region, approximately (omitted) of Brisbane). The Mother had lived with Mr S’s aunt for quite some years.
The ICL confirmed to the Mother that Mr S had pleaded guilty to a total of 62 charges. She said that she was not aware of this, which alarmed her but it was not something that was “relevant” to her.[42]
[42] T 170.
She was aware that Mr S was battling drug addiction, but not aware of what drugs. She was “somewhat” aware that Mr S had been sentenced for his crimes but not of the specifics - four years gaol, immediately suspended and placed on parole for two years.
Notwithstanding the Mother’s evidence of her relationship with Mr S being only a “fling”, on Mr S's Facebook page, there was a “post” on 27th June 2014 which stated that he was in a relationship with the Mother. Later the Mother said that she agreed with the description of her relationship with Mr S as “a friend with benefits” – meaning sexual benefits, for a “month or two”.[43]
[43] T 172.
Through the ICL’s Facebook research, he discovered more recent postings by Mr S, notably from mid 2015, which contained a photograph of himself with the Mother and Y. The Mother maintained that she was not in a relationship with him, but sometimes saw him when (a) she took Y to the (omitted), and (b) she also visited Mr S’s aunt.[44]
[44] T 174 – 175. The recent Facebook post became part of Exhibit E.
Next the Mother confirmed the regime of operations and after surgical care for X following her being mauled by a dog. She confirmed that while the Father knew of her operations, and that the plastic surgeon for X was on the (omitted), she did not inform the Father of any specific appointment. She could not explain why she did not do so, other than to imply that because of the distances involved, with the Father in (omitted) and the appointment on the (omitted), there was no way the Father could or would be able to attend. She had informed the Father of the use of a particular oil for X’s face.[45]
[45] See T 177 – 179.
In relation to her specific orders to have X return to live with her, the Mother stated that she had been X’s primary carer for most of her life, that X’s primary attachment was with her, and that she did not think that X had developed a strong attachment with her Father. She considered that her proposal for holiday time between X and her Father was sufficient to maintain such bond as they have.[46]
[46] T 180.
The Mother confirmed that she would not consider moving back to the (omitted) region, primarily because the Father of her daughter, Y, resided in Queensland. She also said that she was content for the Court to make an order to restrain her bringing X into contact with Mr S. Again she confirmed that she was not, and had no intention to be, in a relationship with Mr S.
Evidence of the Family Consultant
I will deal firstly with comments from the Family Report (Exhibit A), then with the brief oral evidence of the family consultant, Ms D. It is sufficient to note the following from that Report.
The Family Report
In relation to comments by the Father in the course of the interviews, she said:
[33] Mr Offer acknowledged that “X loves her mum. She is always going to love her and needs to see her.” He stated, “She still misses Mum which is understandable”. He informed “X talks more about Y, (her half- sister) than she talks about her mother. She gets sad and misses her mother”. “X asks why Mum can’t come and live with us.”
[34] He explained that X was previously living with her mother in Queensland, until the mother allegedly requested the father to care for X in April 2014. He alleged that Ms Haggerty had informed that she was not able to care for X. Ms Haggerty denied this vociferously.
Then at pars.38 – 41, Ms D recorded the following:
[38] Mr Offer maintained that X is a happy child, and she is doing well at school. He seemed proud of her efforts. He informed that there would be a “get together” with his family for the child’s birthday the following week-end.
[39] The father informed that the mother came and stayed at his house in December but “she started accusing me of things and said she would refuse to return the child”. There was a Recovery Order in December 2014 ordering the child be returned to the father. The mother has not seen the child since then. He alleged, “The way (Ms Haggerty’s) mood changes is unbelievable”.
[40] Mr Offer stated that he would be prepared to communicate with the mother over the child. He stated, “I want her to have time with her mum”. “I don’t want to argue with the mother”.
[41] Mr Offer believes that X should live with him and he could “either go up there (to Queensland) or the mother can come down here. She can ring whenever she feels like it. I want to know if the mother is stable before the child stays with her.”
In relation to the Mother, Ms D recorded the following, at pars.43 – 46:
[43] Ms Haggerty presented as worried and bewildered at the Court system. She had not received legal advice for some time. Previously her solicitor in Queensland explained to her he would not be able to represent her in the ACT. She expressed concern over her lack of understanding of the system.
[44] She explained that she moved to Queensland when Mr Offer went into gaol. They were allegedly already separated. Her father and his wife live in Queensland and support her. She allegedly moved to start a new life. She maintained that her other child’s father is in Queensland and they have a civil relationship.
[45] Ms Haggerty maintained that she thought that after gaol and rehabilitation Mr Offer would “behave differently and would keep off alcohol” which was why she had asked him to care for X during the Easter holidays. She maintained that if he wanted to present as a good parent she thought he would attempt to behave differently to previously, when he allegedly abused alcohol. She alleged that when she was visiting X in December 2014 he was frequently inebriated. She alleged that he “has been on drugs since he was young, and an alcoholic since he was 14 years old.”
[46] She stated “I believe Mr Offer’s doing this to hurt me. He’s still emotionally attached to me.” She alleged that she believes that alcohol and substance abuse get in the way of Mr Offer’s parenting.
It is as well to set out in full, Ms D’s evaluation, which began at par.57 of the family report:
[57] Mr Offer has proposed that X continue living with him and spend time with her mother as agreed by the parties. He stated “Either we go up there (to Queensland) or she (the child) can come down here. She can ring whenever she feels like it”. He indicated that he would be happy to do things with the mother and child. He also believes that he is the better parent because of Ms Haggerty’s alleged drug problem, which he believes means X would not be able to experience a stable environment.
[58] Mr Offer’s behaviour in retaining X after the holiday indicated a lack of understanding of how emotionally important it is for X, who had been cared for by her mother mainly, to retain a close and ongoing relationship with her mother who she would be closely bonded to. X would have an experience of her mother being her primary carer.
[59] X’s changed arrangements have interfered with her schooling at an early and important stage of her education, as well as a change in her social world. X has not had the emotional support of her primary attachment figure during a challenging transition for a small child.
[60] Ms Haggerty believes that Mr Offer is still emotionally attached to her. His proposals appear to indicate an unrealistic attitude to the situation implying he and Ms Haggerty could together manage parenting arrangements for X. Ms Haggerty who went to stay at his home at Christmas is likely to have reinforced an attitude that the parents could undertake parenting together.
[61] The mother maintained that she had had hopes that Mr Offer’s behaviour would have changed due to this Court matter, as well as his experience of gaol. She alleged that his behaviour had not changed as he had allegedly spent his time at Christmas drinking alcohol with his friends, and was constantly inebriated. She therefore believes he is unable to change his behaviour.
[62] She believes that X should be returned to her care, as she believes that this is what the child wishes as she has been mainly in her mother’s care throughout her life. She has offered most school holidays to Mr Offer to spend with X.
[63] Substance misuse may impact on the care of a child, causing the parent to be emotionally and psychologically absent.
[64] X’s (age 6) distressed behaviour at the Court, indicated a child who is emotionally fragile. Mr Offer appeared uncertain how to respond when X became upset. Ms Haggerty took the initiative in attempting to console X. X is a young child who is caught at the centre of a dispute that she is finding bewildering and emotionally challenging, as she is involved in a situation that she is too young to comprehend, and does not have the emotional capacity to regulate her feelings as seen in her upset at the Court when faced with an unusual situation.
[65] Children of X’s stage of development are involved in mastering new physical, intellectual, and social changes that they are encountering. She is entering the age of more self-reliance. Family relationships act as guides and support at this time. The well- functioning child draws upon her sense of self- worth. X’s response to an unfamiliar situation appeared to make her fearful and anxious. She is a young child who is attempting to keep her emotions in check, but her emotional fragility was evident. The concern is that she is a child who has been attempting to maintain some sense of behaving as her parents wish her to, in order to acquire their approbation.
[66] X would be close to her mother emotionally and psychologically, she has been her main carer. She has been forced to become part of a different social and emotional world, undertaken in an ad hoc and unexpected, and therefore emotionally unprepared for, manner. Her coping generally was shown to be challenged when she was expected to undertake one more unfamiliar and intimidating task, and she showed her underlying vulnerability.
[67] Mr Offer’s past history leaves concern for his ability to care appropriately for X. If the allegations of substance abuse hold any validity, then X could be at risk of experiencing negative and frightening behaviour in his care even if her father does not intend any harm. There is allegedly a history of violence as Ms Haggerty alleged she had been hospitalized at Mr Offer’s hand. This has ramifications for X’s safety should the allegations of previous behaviour hold any validity.
[68] X is also missing her mother by both parents’ accounts, and may cope less well and become even more emotionally fragile when she is faced with the ongoing demands of her situation at her age and stage of development. She is also being denied the important relationship with her sister.
[69] Ms Haggerty presented as offering large amounts of time with X and Mr Offer. She is likely to be experiencing some guilt in moving such a distance from the child’s father. It is in X’s best interests to return to live with her mother. Her present situation presently is a frightening, bewildering, and helpless situation for her.
Ms D’s brief but direct recommendations were as follows:
[70] X should return to live with her mother.
[71] She could spend time with her father during school holidays for possibly a third of the holidays to begin, then move to half the school holidays when X is older, and more able to be away from her primary carer.
[72] Both parents should attend on counsellors to inform them of the dangers of parenting and the effects on children of parents who are addicted to substances. Each could then also be assisted in alleged addiction if the allegations hold any validity. The parents may be assisted by some input from professionals to assist parenting after separation and child development.
[73] Ms Haggerty should remain aware that bringing X to her father and remaining in close proximity with him is probably giving him unrealistic hopes for a joint parenting relationship that is unlikely to succeed.
[74] Proposed Orders regarding handovers for X would be important in light of the relationship history.
The Family Consultant’s Oral Evidence
As with the Mother and her cross examination, the Father had no questions for the family consultant.
In answer to questions from the solicitor for the Mother, Ms D confirmed that on one occasion during the course of her interviews when X became upset (a) the Mother, who seemed certain and clear in what to do, took the initiative to pacify X, and (b) the Father seemed to her to be somewhat bewildered about what to do. She confirmed that this may have been simply because the Mother was attending to the situation.[47]
[47] T 184.
Ms D noted that in the light of the limited time the child had spent with the Mother during the interviews, she (i.e. Ms D) argued with the Father to try to get some more time between Mother and daughter.[48]
[48] T 185.
In relation to her recommendation for X to return to live with her Mother, Ms D said:[49]
Is that based on your assessment that she has a better relationship with her mother or is it based on an assumption that, because she lived with her mother for the first five years, she probably has a better relationship with her mother?‑‑‑Well, I guess it’s the second one: that – you know, that because she has lived with her for – for, you know, most of her life; but also that she hasn’t been able – because that was a person she knew very well – she was the – it was the parent that she had – but most engaged with, but the primary parent, really, but suddenly, over the last period, when she has been with her father, he appears not to have – and he admitted she loves her mother and misses her mother, but he hasn’t done anything about that. He hasn’t promoted her or, it appeared, not to have encouraged anything. So that was my concern: that even though – I mean, I’m not saying she doesn’t love her father. She probably does love her father. But she would have missed what was familiar to her and what she had experienced for a large part of her life, and she’s a small child.
So do you think the father’s lack of doing anything about it is a reflection on his insight into the needs of a small child?‑‑‑Yes, I do.
[49] T 186.
If there was to be a return of X to live with her Mother, the family consultant commented about the regime of “time with” for the Father in the following terms:[50]
[50] T 188. See also the related discussion at T 189 – 190.
If his Honour were to make an order changing the residence of X ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ are there any recommendations that you would make as to how such a thing should be transitioned – how that transition should occur?‑‑‑Well, I think it should – it should – mother was offering all the school holidays and I think that’s – for a small child is too much, anyway. I know X has lived with her father for some time now so she – you know, she’s familiar with his situation and I – as I understand, there are relatives, you know, in – in (omitted) as well. He has his – his mother and people there, cousins and so on. But I think it should start small and then graduate towards more, when – you know, when – when X is older, when everything is settled and everyone’s used to what’s happening. You know, I mean, it’s also a long way away and it would be – it – initially, it will be very nerve-racking for X, given what happened before, that suddenly she didn’t see her mother for a long period of time, so she needs to see her mother fairly quickly in the – you know, in the – in the first – in the early instances so she knows this is what’s going to happen and then will be more relaxed and enjoy being with father more, I would guess.
So would there be a need for a period – in the event his Honour were to make such an order ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ would there be a need for there to be a period of settling in before X then commenced spending time with the father?‑‑‑I would think that would be a sensible way of doing it. And she can call her father on the phone. They can do that, so, you know, she will have that connection, but she – she can settle back into the situation in Queensland, which she is familiar with as well, and also she will be comforted by having her little sister with her.
And do you have any view on what – what such period of settling in should be?‑‑‑Where are we? We’re – we’re due to come up for a holiday quite soon, I think, in – where are we? We’re in July ‑ ‑ ‑
There would be holidays in September would be the next ‑ ‑ ‑?‑‑‑Yes, that’s very soon. Perhaps it could be left till, perhaps, the Christmas break, but certainly not four weeks, as the mother was suggesting. You know, I think it should start small and then perhaps build up to whatever – half – half holidays. I think she needs to have holidays with her mother as well. She has got a little sister that will have holidays and they – they need to do things together.
And so, when you say small amounts, does that mean a week or a week at a time ‑ ‑ ‑?‑‑‑Well, I guess ‑ ‑ ‑
‑ ‑ ‑ or less than that?‑‑‑Well, I guess I recommended that perhaps a third of the holidays to begin with and then moving after some months to perhaps half, and then they can reassess later on if they want it to be more …
Regarding the importance of X’s relationship with her sister Y, Ms D said:[51]
Now, without getting into the very odious thing of trying to sort of weigh relationships and their relative importance, what significance or what importance do you place on X’s relationship with her younger sister, Y?‑‑‑Your Honour, it seems that that’s a very important relationship, especially as Mr Offer stated that she talks a lot about Y. She has obviously missed that child a lot. And the mother had told me that they had a very good relationship together. In fact, the little Y has missed X as well. So I think that’s a very significant relationship, especially as both children don’t have a father that lives with them.
[51] T 191.
At the conclusion of Ms D’s evidence, Mr Offer was given another opportunity to ask questions of her. He declined.
Formally, I accept all of Ms D’s evidence, and in particular, I accept her recommendations.
Submissions
I have already noted that the Father filed no further material, even though he was given an opportunity to do so. Nor did he file any submissions, even when he was given an extension of time to do so.
The Mother filed submissions on 9th September 2015. Because of their detail, and notwithstanding quite some overlap with those of the ICL (set out later), and because (as earlier observed) the Father filed neither further material or submissions, it is as well to set them out in full, beginning at par.15:
1) Despite two days of trial, it is unclear what orders the father asks the Court to make apart from an order that the child live with him. The father tells the Court that he has no difficulty with facilitating a relationship between the child and the mother, however he proposes no specific orders and the evidence is that he has not facilitated a relationship between the child and the mother. The mother’s evidence which is corroborated by Ms D’s report demonstrates that the father is, at best, indifferent to the importance of the child spending time with the mother and at worst, hostile towards that occurring.
2) It is difficult to know what specific orders for X to spend time with her mother could be made by the Court in the absence of any actual proposal by the father.
3) During cross-examination the father was pressed to propose times that the child could spend with the mother. His initial response to Mr. Robinson was that the mother could see the child anytime she wanted. With some additional prodding, the father indicated that the mother could spend time with the child every holiday and weekends in between. That was the extent of the specificity. The father did say that if the mother lived closer, it could be every second weekend.
4) By contrast, the mother seeks quite specific orders in relation to the time the child should spend with the father. The orders she seeks provide for significant time to be spent by the child with the father, being the bulk of the term school holiday periods, half the Christmas school holidays and extended weekends in Queensland should the father be able to travel. It is the mother’s submission that this demonstrates a commitment to continuing the relationship between the child and the father. Additionally, the mother has a track record of promoting the relationship, in that she allowed the father to spend the Easter school holiday period with the child in 2014. It is clear that she facilitated the child spending time with the father while he was in prison and allowed telephone communication on a daily basis. The father fails to recognise her role in facilitating his relationship with X.
5) According to Ms D, the mother’s proposal provides too much time with the father in the circumstances. Her recommendation in her oral evidence was for X to have less than half school holidays with her father initially. This is based on the probability that X will experience some distress when she first spends time with her father due to the historical fact of being retained by him.
6) The mother seeks an order for equal shared parental responsibility between herself and the father pursuant to section 61DA. Arguably in this case the presumption of parental responsibility could be rebutted due to the violence that has occurred in the relationship and the particular problems that the father has experienced. Nevertheless, it the mother’s position that she wants the father to be involved in decisions about the child.
7) Although the making of an order for equal shared parental responsibility leads the Court to consider orders for equal time, pursuant to section 65DAA, equal time is not practicable in circumstances where the mother lives in southern Queensland and the father lives in (omitted), New South Wales.
8) The mother has proposed orders that provide for substantial and significant time in terms of the definition provided in section 65DAA(3). There is limited practicability to the father spending time with the child on days that fall during the school week but that provision is there if he is able to travel to Queensland.
PRIMARY CONSIDERATIONS
9) The determination of where X should live depends upon the application of the application of section 60CC considerations.
10) There are two primary considerations for the Court in determining where X should live:-
a) The benefit of X having a meaningful relationship with her parents; and
b) The need to protect her from any physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.
Meaningful Relationships
11) The very clear situation is that if X lives with the father, she will not have the opportunity for a meaningful relationship with her mother. One two week period with the mother (which the father claims to have instigated) does not constitute the facilitation of a meaningful relationship.
12) The father allowed the child to spend a very short period of time with the mother following the Family Consultant interviews in February 2015. The father clearly gave that issue no priority at all, considering his desire to return to (omitted) as soon as possible after the conclusion of the interviews as a matter of greater priority than the child being able to spend time with the mother.
13) Given the lack of the father facilitating telephone time or face to face time between the child and her mother the Court would be concerned that the child would not have a meaningful relationship with each of her parents were she to continue to reside with the father. Additionally, given the mother’s seeming helplessness in the face of the father not providing time with X, even if orders were made, the Court could not be confident that the mother would have the resources to enforce orders.
14) It is the mother’s position that the only way the child will have a meaningful relationship with each parent is if the child lives with her mother. The mother has facilitated the relationship with the father in the past and proposes on-going time as discussed above.
Protection
15) The other major consideration for the Court is the need to protect the child. There does not seem to be any protection issues for the child in the mother’s care. The father’s made some vague allegations in relation to the mother’s mental health and a generalised claim about ice usage. No evidence was offered to substantiate his claims and he appeared not to pursue them. His evidence is that he would have “no drama” with the child living 50/50 between him and the mother. It would certainly seem that he has no concerns about the child’s safety in that regard.
16) The only meaningful concern raised by the father was in relation to the dog bite suffered by the child. The father’s attitude in that regard is as opportunistic as his approach to the mother’s 2014 text message. There is no evidence that the child’s injury was anything other than an unfortunate accident.
17) By contrast, the mother does raise some issues that relate to the child’s safety in the care of her father. These relate to the father’s propensity to drink alcohol and to resort to violence when affected by alcohol.
18) Although the father denies having an alcohol problem and denies that alcohol has influenced violent behaviours:
a) He admitted that prior to 2012, there was a Domestic Violence Order in place that prohibited him from attending upon the mother’s home when he had been drinking;
b) He admitted that a number of his criminal records relate to alcohol usage
c) He claimed to have addressed his alcohol issue 12 months before he went to gaol
d) He admitted he was involved in an incident on Australia Day 2015 which occurred at a pub and he had been drinking alcohol.
e) He claimed he undertook a drug and alcohol course and an anger management course while he was in gaol
f) He has drug and alcohol counselling with a Ms A although he says this is not because he has a problem but because it is “good to talk to people”.
g) He admitted that probation and parole in February 2015 recommended that he have weekly appointments to help him deal with anger and with alcohol and drug issues.
h) On 19 June 2015 he was directed by probation and parole to “totally abstain” from alcohol.
i) His response to one of his Honour’s questions was “I’m allowed to have few beers after work”.
j) He acknowledged that his step mother tells him that he has an issue with alcohol.
k) He acknowledged that in February 2015 he told Ms. C that he had three or four stubbies three or four times a week after the child was asleep.
l) In June 2015 probation and parole directed him to do a residential rehabilitation – he refused to do the six to eight week course but agreed to do a seven to nine day program.
19) The mother asks this Court to make a finding that the father has an alcohol abuse problem which is likely to impact on his ability to care for X.
20) The mother’s major concern in relation to the father’s alcohol intake is about his loss of control and resource to violence. The father has a reasonably extensive criminal history. The details are contained in the police records which are “Exhibit C’ in these proceedings.
21) Of particular concern was his involvement in a very serious assault and home invasion which led to the father’s incarceration. The Court will be under no illusion that alcohol fuelled the violence on that occasion. The father attempted to downplay the incident in his evidence but informed the Court that the victim of the assault was taken by helicopter for treatment.
22) The concern from the mother’s point of view is that the father continues to drink alcohol; that he fails to acknowledge that he actually has an alcohol problem and that when he is under the influence of alcohol, he shows poor judgement and poor impulse control. That situation is potentially dangerous for the child.
23) The father’s difficulties with alcohol and violence will not cease to exist when he has holiday time with X. The mother still proposes substantial time with him. This should not be taken as her accepting that the father poses no risk but rather that she holds the relationship between X and her father as very important and hopes that he will focus more on her if she spends less time with him.
ADDITIONAL CONSIDERATIONS
X's Views
24) It is apparent from all the evidence that X is missing her mother and wants to be with her. Even the father claimed that if there was a 50/50 arrangement “X’d love it”.
25) It is not suggested that the child’s views be significantly determinative of the issue, however Ms D’s assessment of the situation seems to indicate that the child is still primarily attached to her mother.
X's Relationships
26) X has a younger sibling in her mother’s household. According to the mother and Ms D, X misses Y. The Court could not be confident that if X continues to reside with her father she will have a real relationship with her sister.
27) The father places some importance on the relationship between X and other members of his family. The evidence of the extent of that relationship is unclear. X is apparently cared for by members of the extended family when the father is at the pub but there seems to be little real family interaction between the father and the rest of his family. Certainly none of his family members were on affidavit or in Court to support his claims. Ms D did not perceive strong relationship in that regard in her brief dealing with X.
28) In any case, the mother’s proposal would allow on-going relationships with the father’s family. Again the mother has a ‘track record’ in this regard, clearly having facilitated X spending time with the father’s family while the father was in gaol.
Section 60CC(3) Opportunities
29) The mother has failed to take a proactive stance in relation to spending time with the child. However, the father acknowledged that despite receiving proposals through solicitors, he had not been responsive to any requests for time save for the two week period in (omitted) at Christmas 2014. It is not the case that the mother has neglected opportunities that were available to her. She saw X on the father’s conditions as that was the only way she could do so.
Maintenance of the Child
30) No significant evidence has been proffered to the Court in relation to whether either parent has failed to fulfil their obligations to maintain the child. It can be assumed since neither of the parents is financially well off that to a large extent, the financial care of the child has always fallen to the person in whose care she has been living.
The Effect of Change
31) During the course of evidence, questions arose as to the best way to transition the child if there is to be a change in her arrangements. Ms D indicated that the mother’s proposal of the child spending substantial time with her father, whilst living with her mother would in fact be too much for the child. Ms D says that if the child returns to live with her mother, she will be nervous about seeing her father because of the knowledge that the last time she left her mother to see her father, her father kept her.
32) Ms D did not express any concern in terms of the effect on X of a move away from her father. This indicates that it be a positive change in her circumstances without problematic impact. It would mean that she would return to her primary carer and to her sibling.
33) This is a situation where not changing the child’s circumstances will mean a continuing separation from her primary attachment. Change is necessary for X to have the benefit of all her family.
Practicalities
34) There are practical difficulties in relation to spending time with either of her parents. This is simply the product of distance and the lack of significant financial resources for the mother or the father. The practical difficulties are not overcome by the child residing with one parent as opposed to the other and so are not intensely relevant to the central issue before the Court.
Parental Capacity
35) There appears to be no issue with the capacity of the mother.
36) The father’s capacity is limited by is anger issues and his alcohol intake. He also lacks insight into his own problems.
37) It is submitted on behalf of the mother that the father’s focus on the child is about his emotional needs rather than the child’s needs.
38) The father was highly critical of the mother for the incident involving the dog bite. However, it is clear that the mother advised the father as soon as possible but he did not attend the hospital or even send a gift or toy to his daughter. Since having the child in his care, he has not sought any medical assistance or treatment for the child’s scarring. It is the mother’s evidence that the father has missed plastic surgeon appointments and that he has failed to follow up on the treatment. The father’s attitude is that “X’s face looks good” and that the mother had not told him to take X for any treatment.
Attitudes to Parental Responsibility
39) The father’s attitude to the mother is a major problem in his parenting. It has been within his power to ensure X regularly sees and speaks to her mother. He has not done so.
40) Interim Orders were made at the conclusion of the trial. They provided for the child to speak with her mother each Tuesday and Friday. It is the mother’s claim that the father has not facilitated that communication save on rare occasions.
41) The father’s opportunism in retaining X in April 2014, and not informing the mother of his proceedings constitutes a blatant disregard for X. X had attended one term of school when her father retained her. Every aspect of X’s life was fundamentally changed by his action and she must have been devastated by the loss of her mother. The father clearly placed his desire to have X with him above her best interests.
42) The father’s attitude to his responsibilities in general is effectively summed up by his step-mother’s statement in the Probation and Parole material (Exhibit D) where she says of Mr. Offer, “Mr Offer will say whatever he perceives she wishes to hear.” This is a description of the father talking about his alcohol issues. It is likely to apply to his attitude to parenting as well. For example, he says, glibly, the mother can see the child “as often as she wants”, but this is clearly not something that he genuinely believes or genuinely allows. He says it, presumably because he thinks that is the expected response.
Family Violence
43) The mother attests to quite serious family violence. The father largely denies that he was violent but does acknowledge:
a) A heated argument during which the mother suffered a lacerated arm
b) The existence of an apprehended violence order taken out by police to protect the mother.
44) The father did not challenge any of the mother’s evidence. Her account of the violence may therefore be accepted by the Court.
45) The father’s convictions for violent crime are corroborative of the mother’s claims as is his account of the Australia Day incident in 2015.
Further Proceedings
46) It is the mother’s submission that if the Court makes orders for the child to continue to live with her father and only spend time with her mother then, either the child will not see her mother, or the mother will have no choice but bring further proceedings in the future.
SUMMARY
47) The child X has been separated from her mother since April 2014.
64) X’s best interests can only be served by a restoration to the care of the mother which will allow her to have relationships with both parents; her sister; and her extended family. It will also ensure that X is not subject to potential harm from the effects of anger management issues and alcohol abuse.
The ICL’s submissions were similarly thorough. I set them out in their entirety:
1) A hearing comprising two days was conducted on 28 and 29 July 2015 concerning the parenting arrangements to operate for X born (omitted) 2009. The Applicant Father appeared on his own behalf. The Respondent Mother is represented by Ms Burgess.
2) The hearing commenced midway through the first day after the Father was delayed due to vehicle difficulties. At the conclusion of the second day of hearing, there was insufficient time for the parties to make oral submissions and Directions were made for the filing of written submissions by each of the parties and the Independent Children’s Lawyer. It had been a feature of the conduct of the trial that the Father had filed very little evidence in writing and the Father was given a further opportunity to file evidence in his own case notwithstanding both parties had given oral evidence.
3) The Father has not filed any further application or sought to place any further evidence before the Court. The Father has not filed any written submissions or a Minute of Orders Sought. The Mother filed a Minute of Orders Sought at the commencement of the hearing and has since filed written submissions. The Independent Children’s Lawyer filed a Case Outline prior to the commencement of the hearing.
4) In the Case Outline the Independent Children’s Lawyer identified the following issues remaining in dispute:
a) With whom should X live?
b) What order for parental responsibility should be made?
c) Is the presumption in favour of an order for equal shared parental responsibility (section 61DA) rebutted?
d) Is the Mother’s failure to initiate proceedings following the alleged withholding of X by the Father in April 2014 a relevant factor in determining the attachment of X to each parent and the extent to which each parent has facilitated X’s relationship with the other parent and/or the extent to which each parent has sought to engage in a relationship with X?
e) Is the Father’s alleged conduct in failing to make X available to spend time with her Mother a relevant factor in determining with whom X should live?
f) Does the Father have an alcohol problem impacting on his ability to effectively parent X?
g) Do the Father and/or the Mother have a drug addiction impacting on his/her ability to effectively parent X?
h) What order should be made for X to spend time with the non-resident parent, in particular noting the distance between the residences of the Father and the Mother?
i) Where should changeover take place to give effect to orders for X to spend time with each parent?
j) The frequency of telephone contact for the non-resident parent.
k) Is there sufficient evidence before the Court of X’s attachment to each parent and the likely effect of any change of arrangements?
l) Is there sufficient evidence before the Court of the parenting capacity of each parent and the psychological health of each parent?
Evidence presented at the Final Hearing
Mr Offer - Father
5) The Father gave evidence and was cross examined by Ms Burgess and the Independent Children’s Lawyer. The Father’s evidence was notable for the extent to which the Father sought to direct any negative inferences to other persons, including the Mother, his stepmother and unnamed people from the local area that were known to him. Significant time was spent examining the Father’s criminal record and the circumstances that resulted in his incarceration following a serious assault on another person. The Father acknowledged he had been drinking at the time of the assault, however denied that he had any ongoing problem with alcohol. In answer to a question from His Honour on whether he blamed the assault on alcohol, the Father responded to the effect: “I would have done it whether I was sober or not.”
6) The Father’s evidence rejected any suggestion he had a continuing issue with alcohol notwithstanding there was evidence before the Court that the Probation and Parole Service had issued him with a direction as recently as June 2015 to abstain from any consumption of alcohol. The Father blames the Mother and others of making malicious reports to the Probation and Parole Service and resulting in the issuing of the formal direction.
7) The Father denied there had been any family violence perpetrated by him during the period he and the Mother cohabited, alleging the Mother had thrown a ceramic bowl at him during one argument. The Father gave evidence to the effect: “She (the Mother) is in pretty good shape if I was a bloke who bashed women.”
8) The Father rejected any suggestion he had been opportunistic by retaining X in April 2014 stating you “cannot just have a bad day and hand your daughter over”. The Father insisted he had made X available to speak with the Mother, however conceded he may not have been proactive in initiating calls, instead leaving it to X to say she wanted to speak to her Mother. The Father denied that he had ever prevented the Mother from speaking to X if the Mother initiated the call, instead stating the Mother rarely called.
9) The Father sought to characterise the Mother’s house as being an unsafe environment due to injuries sustained by X when attacked by a dog, notwithstanding that he conceded he “probably should have” taken X to a doctor to ensure she was receiving appropriate ongoing treatment for her injuries.
Other witnesses for Father
10) The Father did not call any other witnesses.
Ms Haggerty – Mother
11) The Mother was called to give evidence. The Father declined to ask the Mother any questions. The Mother was cross examined by the Independent Children’s Lawyer.
12) The Mother’s evidence in relation to her apparent inaction after the Father retained X in April 2014 was less than satisfactory. The Mother testified that she had obtained legal advice in Queensland, however this had not resulted in the Mother taking any substantive action to seek the return of X. The Mother was unable to provide the Court with evidence of the attempts she had made to obtain further advice or press the issue until she, much later, obtained the assistance of Ms Burgess.
13) The Mother was questioned about her associations, in particular with a Mr S. Mr S had been charged with a number of high profile offences, many of which were later withdrawn. Nonetheless Mr S entered pleas of “guilty” to a number of drug and property offences and served a period of imprisonment. The Mother denied she was, or had been, in an ongoing domestic relationship with Mr S, indicating that her intimate relationship with Mr S was in the nature of a casual and convenient liaison. The Mother gave evidence that she would have no difficulty with an order that restrained her from bringing X into contact with Mr S.
14) The Mother was also questioned about the circumstances in which X had suffered injuries in a dog attack, and, in particular, the information she had provided to the Father of follow up appointments and treatments required, notwithstanding the Father had retained X against the Mother’s wishes. The Mother conceded she had not provided the Father with much of the information to facilitate attendance at appointments, etc for which she was now seeking to level criticism.
15) The Mother gave evidence she had made many attempts to have telephone contact with X and alleged the Father had not facilitated those calls.
Other witnesses for Mother
16) The Mother did not call any other witnesses.
Family Consultant – Ms D
17) Ms D gave evidence by telephone in line with the Family Report prepared by her and released to the parties on 14 April 2015.
18) The Father asked no questions of Ms D, notwithstanding the primary recommendation of Ms D was that there be a change of residence of X from the Father to the Mother. Ms Burgess and the Independent Children’s Lawyer both questioned Ms D.
19) Ms D confirmed (Family Report, paragraph 64) that X had become upset during the interviews and that the Father did not appear to know how to respond. Ms D also gave evidence that X appeared very relaxed with the Mother and that X’s relationship with her half-sister (Y) was very important. Ms D concluded that the Father had “not done anything to promote” X’s relationship with the Mother.
Legislative pathway
60CC(2)(a) – benefit of having a meaningful relationship with both parents
60CC(2)(b) – need to protect child from physical or psychological harm and being subjected to or exposed to abuse, neglect or family violence.
20) It is submitted the evidence establishes that since X has been in the care of the Father, she has had little opportunity to maintain her relationship with her Mother. This is notwithstanding X’s primary attachment would have been with her Mother, not least due to the Father’s incarceration for 18 months when X was aged between 3 ½ and 5.
21) The failure of the Father to promote X’s relationship with the Mother warrants criticism. The failure of the Mother to take more decisive action to seek the return of X to her care after the Father retained X in April 2014, particularly in circumstances where she alleges family violence and ongoing alcohol issues, also warrants criticism.
22) Neither parent has been able to demonstrate that they consistently place X’s interests before their own. For the Father this is exemplified by his failure to engage in the proceedings; his almost flippant disregard for the importance of X having some form of contact with her Mother; and his apparent ignorance that consultation with a doctor for ongoing treatment of X’s injuries following the dog bite may have been an appropriate exercise of parental responsibility. The Father’s denial of any ongoing alcohol issues and attribution of any negative events being the responsibility of others does the Father little credit in the face of the evidence produced under subpoena from the NSW Police Service and Probation and Parole Service.
23) For the Mother, her failure to take appropriate action in April 2014 following the Father’s refusal to return X to her care, does the Mother little credit. No adequate explanation for the delay was provided to the Court. X’s ongoing treatments following the dog bite might have been thought to prompt a more active response from the Mother. It is unclear the impact, if any, of the Mother’s relationship with Mr S during this period may have had and it would be speculative to draw any further inference. Nonetheless the Mother’s (past) association with Mr S is such that, if X is to be returned to the Mother’s care, it would be appropriate that the Mother be restrained from bringing X into contact with Mr S.
Additional considerations
24) 60CC(3)(a) – views of the child: The Father failed to respond to a request by the Independent Children’s Lawyer that X meet with the ICL. The Father failed to give an adequate response in cross-examination as to why he had not made X available.
25) At the time of the interviews with Ms D, X was about to turn 6 years of age. It is submitted limited weight can be placed on any views expressed by X.
26) 60CC(3)(b) – nature of the relationship between the child and each of the parents: X has spent significant blocks of time with both parents. Between the ages of approximately 3 ½ and 5, X lived with the Mother whilst the Father was incarcerated. Since April 2014, X has been in the primary care of the Father. It is submitted that X has had a limited relationship with whichever parent has not been her primary carer during these periods. When the Father was incarcerated, the Mother states X saw him regularly, the Father testifies only on two occasions. Since X has been with the Father, X has spent time with the Mother on very limited occasions. Ms D identified X’s “emotional fragility” (Family Report – paragraph 64-65) and that the Mother had been the primary carer through much of X’s life (paragraph 58).
27) 60CC(3)(c) – the extent to which each parent has taken, or failed to take the opportunity to participate in decision making: The evidence establishes that such decisions as are made are made by the parent with whom X is residing at the relevant time, with little or no involvement of the other parent.
28) 60CC(3)(ca) – the extent to which each of the parents has fulfilled their obligations to maintain the child: The parent with whom X has been living appears to have provided for her to the apparent exclusion of the other parent.
29) 60CC(3)(d) – the likely effect of any changes: Orders that give effect to a change of residence in favour of the Mother will have a significant effect on X, such that it would be appropriate that there be a period to enable X to settle in to her new surroundings. It is further submitted that any holiday time with the Father be limited in length for the first twelve months to enable X to gain confidence she will return to the care of her Mother at the end of any school holiday time.
30) 60CC(3)(e) – practical difficulty and expense of child spending time with and communicating with a parent: The Father resides near (omitted) and the Mother in (omitted) in Queensland. There are significant practical difficulties and expense in X spending time with the non-resident parent. This, combined with the financial circumstances of the parties militates in favour of orders that provide for gradually increasing periods of holiday time for X with the non-resident parent.
31) 60CC(3)(f) – capacity of each of the child’s parents to provide for the child’s needs, including emotional and intellectual: It is submitted the evidence establishes the Mother is better able to meet the emotional and intellectual needs of X.
32) 60CC(3)(g) – maturity, sex, lifestyle and background of child and parents: There are no specific matters under this heading that will assist the court.
33) 60CC(3)(h) – Aboriginal/TSI: Not applicable.
34) 60CC(3)(i) – attitude to the child, and to the responsibility of parenthood, demonstrated by each of the parents: The attitudes of both parents, both towards the other parent, and in their actions in addressing the needs of X, is concerning. Both parents suffer from deficits in their parenting capacity and their ability to place X’s interests before their own. Such deficits, it is submitted, may not be malicious but the result of their life experience and inability to prioritise or make child focused decisions.
35) 60CC(3)(j) – family violence and 60CC(3)(k) – family violence orders: There are no extant family violence orders. The Mother asserts violence during the relationship. The Father’s criminal record and evidence of events on Australia Day 2015 evinces a preparedness to resort to violence, especially when under the influence of alcohol.
36) 60CC(3)(l) – whether it would be preferable to make an order that would be least likely to lead in further proceedings: There are no specific submissions made under this heading.
37) 60CC(3)(m) – any other fact or circumstance: There are no further matters under this heading.
Parental responsibility
38) The Mother seeks an order for equal shared parental responsibility. The Father did not file a Minute of Orders Sought. Notwithstanding that the evidence establishes that the resident parent has made decisions to the exclusion of the non-resident parent over the course of X’s life, it is submitted that there is insufficient evidence to rebut the presumption in favour of an order for equal shared parental responsibility.
Conclusion
39) It is submitted that the balance of the evidence supports X being restored to the care of her Mother. X should return to her Mother’s care at the earliest opportunity, including during the final school term of 2015. Schools in New South Wales and Queensland return for Term 4 on 6 October 2015.
40) Orders substantially in accordance with those sought by the Mother are supported by the Independent Children’s Lawyer. It is submitted, and as recommended by Ms D, that there should be a period before X spends lengthy block time with her Father to ensure any anxiety about her being returned to her Mother at the end of holiday time may be ameliorated.
I note – not for the first time – that the Father filed nothing, either by way of evidence (since 2014) or submissions. He was given extra time and opportunity to do both, and he did neither. In such circumstances, I accept and adopt completely the submissions of both the Mother and the ICL. This includes finding (as sought by the Mother), among other things, that the Father has a sufficient issue with his use of alcohol as to likely impair his capacity properly to parent and to protect X while she is in his care.
Consideration & Disposition
In the absence of any relevant evidence and submissions from the Father, given the comprehensiveness of the submissions by the Mother and the ICL, and given that I accept without qualification the submissions of the Mother and the ICL (and the unchallenged evidence of the Mother), in my view, it would be completely repetitious, and therefore unnecessary, again to go through the legislative scaffold in Part VII of the Act.
In my view, it is sufficient, by way of brief summary, that the matters I consider to be of particular relevance or significance that lead properly to the conclusion for X to return to her Mother’s care are as follows:
(a) the very significant sibling relationship between X and Y,
(b) the evidence that clearly points to the Mother having been X’s primary carer for almost all of her life, notwithstanding her more recent time living with her Father; the evidence, in my view, clearly showed that X still had her primary attachment with her Mother,
(c) X’s obvious distress recorded by the family consultant in not being able to spend more time with her Mother and wanting her to drive her back to (omitted) at the conclusion of the interviews with the family consultant,
(d) the Father’s uncontested history of the involvement of alcohol in a significant number of assaults and other engagements with police, and his lack of insight as to how this may impact upon his parenting of X,
(e) the Father’s very significant anger management issues, and
(f) the Father’s significant lack of insight into X’s need to spend time with the Mother while she was in his care, and equally so for X to spend time with her sister, Y, evidenced by the Father’s failure to facilitate appropriate time between X and her Mother.
On the Mother’s unchallenged evidence, and likewise that of the family consultant, I am satisfied that the Mother properly or reasonably appreciates the importance of X’s relationship with her Father (and the paternal family more generally), and that she will actively facilitate and encourage it.
I am also satisfied that it is important to restrain the Mother from bringing X (or Y for that matter) into contact with Mr S and the potentially dangerous behaviour in which he engages.
Finally, I stress the importance for both parents to work out a proper and reasonable parenting relationship that will enable them to work out arrangements that are in X’s best interests. The post-separation parenting courses that I order are designed to assist them to develop, to the degree possible, a more trusting and child-focussed relationship. This includes that the Mother may be reasonably assured that when X spends time with her Father that she will be returned in a timely and appropriate manner. It may assist, as it is intended, for the parties to consider the following comments from the Full Court in Cullen, where Strauss J (as part of a Full Bench otherwise comprising Watson SJ and Bell J) said (at Fam LR p.48):[52]
There are few greater evils in family law than recurring litigation about custody and access. It is detrimental to the child, particularly so if [she] is old enough to appreciate that [her] parents are in legal conflict. It saps the mental, emotional and financial resources of the parties. It taxes the resources of the court and of the community.
[52] Marriage of Cullen (1981) 8 Fam LR 35; (1981) FLC ¶91-113.
In the light of the evidence, such as it was at trial, the evidence and recommendations of the family consultant, and the analysis of the statutory pathway by both the Mother’s lawyer and the ICL, the orders proposed by the Mother, supported by the ICL, in my view, are in X’s best interests.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 28 January 2016
Key Legal Topics
Areas of Law
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Family Law
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Negligence & Tort
Legal Concepts
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Injunction
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Duty of Care
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