Olander & Ravenna

[2023] FedCFamC2F 163

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Olander & Ravenna [2023] FedCFamC2F 163

File number(s):	DNC 422 of 2014
Judgment of:	JUDGE YOUNG
Date of judgment:	1 February 2023
Catchwords:	FAMILY LAW - Parenting- where the child lives with the mother - where there are orders that the child spend time with the father but the child is refusing - where the mother seeks orders for shared parental responsibility and for the child to see the father according to her wishes - where the father seeks shared parental responsibility and time orders - where the mother and child have been subjected to family violence by the father - orders for shared parental responsibility and for the child to see the father as she wishes
Legislation:	Family Law Act 1975 (Cth) ss 60CC, 61DA
Division:	Division 2 General Federal Law
Number of paragraphs:	29
Date of hearing:	30 January- 1 February 2023
Place:	Darwin
Counsel for the Applicant:	Ms Thelma Gray
Solicitor for the Applicant:	Grays Legal NT
Counsel for the Respondent:	Mr Greg Story
Solicitor for the Respondent:	Legal Aid Commission
Counsel for the Independent Children’s Lawyer	Ms Julie Holtham

ORDERS

DNC 422 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS OLANDER

Applicant

AND:

MR RAVENNA

Respondent

order made by:	JUDGE YOUNG
DATE OF ORDER:	1 FEBRUARY 2023

THE COURT ORDERS THAT:

1.That the parties have equal shared parental responsibility for the child X born in 2011 on the following basis;

(a)The parties are required to consult with each other in relation to any decision to be made affecting the child’s long term care, welfare and development, including choice of school and any major medical issues;

(b)The mother shall advise the father about the issue to be decided and her preferred option or options and the father shall provide his response in a prompt manner;

(c)The parties are required to negotiate, if possible, if they have differing views; and

(d)In the event that the parties are unable to agree on the decision to be made, the mother shall make the decision and communicate that decision to the father as soon as practicable.

2.That the child live with the mother.

3.That the child spend time with the father on conditions and at times in accordance with the child’s wishes.

4.That the child may communicate with the father in accordance with her wishes.

5.That the father may communicate with the child by sending letters or cards provided he uses appropriate language, and the communication does not include anything denigrating the mother or discussing the child’s living arrangements.

6.That the mother shall facilitate the posting of any correspondence which the child wishes to send to her father.

7.That the child shall continue to attend upon her counsellor in accordance with the counsellor’s recommendations, or if the child is not currently seeing a counsellor, the mother shall make prompt arrangements for the child to attend upon a counsellor/ psychologist and ensure that the child attends each appointment made by the said treating professional.

8.That the mother shall provide the child’s treating mental health practitioner with a copy of these orders and a copy of the Judgment made in this matter, if a written Judgment is provided.

9.In the event that the child’s treating mental health practitioner considers that the child is able to participate in family therapy with her father, the practitioner shall inform both the mother and the father of that, and each parent shall thereafter promptly do all things necessary to ensure that the family therapy occurs.

10.That the parties shall each within 28 days from the date hereof, subscribe to and remain subscribed to a parenting communication app agreed between them, and in default of agreement, to AppClose.

11.That the parties shall only communicate with each other via the communication app, and only in relation to matters relating to the child.

12.In the event that the child spends time with the father, the father is restrained from drinking alcohol during the period when the child is in his care and for a period of 48 hours prior thereto.

13.That whilst the child is in her care, the mother is restrained from drinking alcohol to an extent that her blood alcohol content level would be above 0.05%.

14.That each parent is restrained and an injunction is granted restraining each of them from:

(a)Swearing at or about the other to or within the hearing of the child;

(b)Saying negative or nasty things about the other or the other’s family to or within the hearing of the child;

(c)Yelling at the child;

(d)Exposing the child to family violence;

(e)Allowing the child to remain in the presence of any person who is affected by illicit drug use, or who is intoxicated to the extent they would be over the legal limit to drive;

(f)Consuming illicit substances while the child is in their care;

(g)Using physical discipline techniques on the child, and allowing others to physically discipline the child; and

(h)Exposing the child to cigarette smoke or allowing others to do so

15.That the mother shall ensure that the child attends school each day unless she is ill.

16.For the sake of clarity, this Order authorises the father to obtain directly from the child’s school, copies of school reports, attendance records, school photo order forms, and any other information pertaining to X’s education and well-being.

17.That each parent shall promptly notify the other in the event that the child is seriously injured or suffers a serious illness or is hospitalised and shall provide the details of same, together with the names of the treating medical professionals involved, and this Order authorises both parents to obtain from the health professionals involved, all information relating to the child’s injury or illness.

18.That each party pay half the costs of the Independent Children’s Lawyer, if assessed to do so by the Legal Aid Commission.

19.That the Independent Children’s Lawyer’s appointment be discharged after she has met with the child and explained these orders to her, and read to the child the letter the father wishes to send, provided the contents of the letter are appropriate and the letter is received by the Independent Children’s Lawyer before she meets with the child.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Olander & Ravenna has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

Judge Young

1. This is a parenting case about X, who is eleven and a-half years old approximately.  X lives with her mother, and while there are orders that she spend time with the father, she has not, in fact, spent time with him since about October 2022.  X has told the independent children’s lawyer that she does not wish to spend time with her father and, further, if there are spend-time orders, she will refuse to go.

2. The mother initially sought orders for sole parental responsibility and that the child spend supervised time with the father.  During the trial, the mother adopted the position advanced by the ICL that there be shared parental responsibility but the mother have the final say in the event of disagreement.  She no longer seeks orders for supervised time, but, rather, also in line with the ICLs position, that X spend time with her father according to her wishes.

3. The father sought shared parental responsibility and a week-about care arrangement, though, as his counsel said in oral submissions, he really seeks that there be some time orders at least.  The ICL, as mentioned, proposed shared parental responsibility, but with the mother having the final say, and X spending time with her father according to her wishes.  The ICL also sought orders that the father be permitted to write and send cards or letters to X, and that X be permitted to telephone him if she wished.

   THE BACKGROUND

4. The parties began living together in 2010.  The mother has three older children – Mr B, D and C, who are 22, 16 and 14 respectively.  X was born in 2011.  The parties separated in 2014.  Proceedings commenced in 2014.  In 2015, the mother attempted suicide.  In 2016, there were orders – that appear to be interim orders – that the child live with the father.  Proceedings continued in 2016, resulting in consent orders that the child live with her father and spend time with her mother; again, those appear to have been interim orders.

5. In 2020, the child welfare agency removed the child from the father’s care and placed her with the mother.  The agency investigation reviewed the family history, including the mother’s historic abuse of substances and poor mental health.  The mother’s misuse of alcohol was identified as an issue but the agency was satisfied that the mother was addressing that.  There were also general allegations by the mother that many of her problems were the result of domestic violence perpetrated by the father.  These historic allegations were not investigated in the agency investigation.

6. The then current concerns investigated by the child welfare agency related to complaints by the child that the father had yelled and swore at her, that he had hit her with a wooden spoon, and that he blamed her and accused her of “betrayal” for taking her mother’s side in the dispute or disputes.  X told the child welfare investigators that she felt unsafe in her father’s home.  The allegation of “betrayal” came after X had complained at her school that her father had violently pulled a necklace from her neck that her mother had given her.  The agency concluded that the child had experienced emotional harm in the father’s care.  The child was placed in the mother’s care.

7. Although child protection proceedings were commenced, it seems no final order was sought in the child protection proceedings because the mother commenced or continued with proceedings in this Court in 2021.  The child protection proceedings were withdrawn.  Various interim consent orders were made in 2021 by this Court, including in September of 2021 for the parents to attend parenting courses, and in the case of the father, that he attend a Men’s Behaviour Change Program, which he has not completed.

8. There were also orders for CDT testing for evidence of alcohol abuse.  In September 2021 a child inclusive memorandum was also prepared.  In the preparation of that memorandum the parents made allegations against each other about alcohol and drug use.  The father said that he consumed cannabis but sporadically.  The father said that the claims that X had made to the child welfare agency were not true.

9. In the interview with the child expert, the child said that she was afraid of the father’s anger, or incurring his wrath if she did something wrong, and she said she was afraid of being blamed for things, and she repeated that he yelled and screamed at her.  She said that both her parents drank alcohol, though, she pointed out that her mother had not been drinking in the past week before the interview.

10. Very tellingly, in my view, the child said “I want to see my dad.  I want him to stop drinking, stop smoking inside, and stop being angry.”  She also said, “I wish I had normal parents – parents that don’t hate each other and drink.”  She said also that, “Seeing Dad at [E Service], it’s not a normal life” – I might say at that time there were orders for supervised time – and she went on to say “other kids don’t have a mum and dad that fight and drink and smoke so much.”

11. As I mentioned, orders had been made that the child was to spend supervised time at E Family Services with the father.  In a note made by an E Family Services worker from 13 February 2022, the worker noted that the father said to the child “You are not going to live with your mother or your nana.  You are going to live with me.  Finally, that’s what’s going to happen.  Otherwise you will end up depressed and alcoholic like [Mr B].”  It was recorded that the child immediately began to cry and asked to leave the room and the time came to an end.  In cross-examination the father was asked whether he said that to the child.  He denied that he had done so but I am satisfied that he was untruthful in his denial.

12. Later in July 2022 the child began to refuse to attend at E Family Services, and, after three refusals to attend, in July 2022 E Family Services cancelled the arrangement and were no longer willing to provide supervision.  That continued until September and October 2022.  In September and October 2022 the mother and the father briefly rekindled their relationship.  The father began visiting the mother’s home.  The rekindling that I have referred to appears to have involved the shared consumption of alcohol.

13. It is not in contest that X spent unsupervised time with her father during that period in activities such as F Centre, which is a place where games can be played and at other places, and for some at least of those occasions, C, the mother’s 14 year old son, went as well.  This period of amicability ended on 21 October 2022 when the father and mother engaged in what appears to have been a drunken argument involving yelling and, according to the father in cross‑examination, some physical violence from one of the mother’s female friends.

14. The child told the independent children’s lawyer before that time that she was spending regular daytimes with her father and her parents were getting on well.  However, after the relationship between the mother and the father broke down on 21 October 2022, the child told the ICL that she did not want to see her father and that even if orders were made of the Court she would refuse to cooperate.  And, according to the independent children’s lawyer, the child’s position has been adamant since then.

    THE PARTIES

15. The mother was a broadly reliable witness.  She did not acknowledge that drinking continued to be problematic for her, or that her short-lived rekindling with the father was associated with alcohol and alcohol misuse, as I am satisfied it was.  The mother said that she worked full time and alcohol did not interfere with her responsibilities.  In my view, her confidence about that is misplaced and the child-inclusive memorandum should have told her that, at least through X’s eyes, her use of alcohol continued to be a serious problem.  I do not consider that the mother has a good insight into her relationship to alcohol.

16. The father, I am satisfied, was an unreliable witness.  I am satisfied there is evidence of a longstanding dependence on alcohol, and possibly cannabis as well.  He has little insight into this and little insight into the impact of his alcohol misuse on his relationship with his daughter and the mother.  There was evidence of the father’s SMS messages to the mother, particularly at the beginning of 2022.  Many of them were insulting and denigrating and involved the coarsest of abuse.  The mother’s communication, on the other hand, appears to have been business-like, and, in the messages I saw, she did not respond in kind.  Such was the extremity of the language used by the father, I am satisfied that it was intended to be coercive and controlling and constituted family violence.

17. The father continued to allege in this trial that the child had been manipulated by the mother, the maternal grandmother or child welfare workers so as to make false claims against him.  I am satisfied that the child’s claims are not false, and the child’s reports of the father’s bad temper, yelling and anger are true, and also constitute family violence.  The father, as mentioned, has not complied with the 2021 consent order that he attend and complete a Men’s Behaviour Change Program.  He gave evidence that he did at least go to the program but he was deemed unsuitable.  I was not given any satisfactory evidence about why he was considered unsuitable for the Men’s Behaviour Change Program, and if there were problems, as the father said, due to the death of his sister around about that time, why he could not complete the program once the grieving process had been completed.

18. I am not satisfied that the father is ready or willing to change his misuse of alcohol and his tendency to anger and denigration in his relationship with the child and the mother.  I am satisfied that his insight into the psychological and emotional needs of the child is limited.  I am satisfied that the child’s resumption of spending time with the father during the day in September and October 2022 was largely the result of a short-lived reconciliation between them, but her refusal before and since to spend any time with the father is largely the result of continuing conflict between the parents.  The child has not been manipulated as the father claims.

19. I consider that the child’s refusal to spend time with the father is probably an easily understood psychological defence mechanism.  She was described in the child inclusive memorandum as an intelligent and mature child for her age, and I am satisfied that, really, the child is giving expression to the distress with which she experiences the ongoing conflict between her parents.

20. In deciding a parenting matter, a Court must have regard to the legislative pathway in Part VII of the Act.  The primary considerations in determining the best interests of a child are (a) the benefit to the child of having a meaningful relationship with both of the child’s parents, and (b) the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, with that matter to be given the greater weight.

21. In this case, I am satisfied that if the intensity of the parental conflict abated, that there would be a benefit to X in having a relationship with her father.  Of course, she is living with her mother.  However, given the distress that I have described the child as experiencing in attempting to give any practical effect to that relationship, I consider that the benefit to the child of a relationship with her father while the conditions I have described continue is limited.

22. It was submitted by counsel for the mother that there was an unacceptable risk of harm should the child spend time with the father.  While I acknowledge the history recounted by the child welfare agency, and I have accepted what the child has to say about her father’s bad temper and a tendency to yell at her, I am not satisfied that there is precisely an unacceptable risk of harm should she spend time with him.  The mother, for example, was perfectly content for the child to spend daytime with the father in the period September to October 2022.  I consider that, really, the matter is better approached through the lens of the question of the parental capacity of the father, in particular, and his ability to provide for the emotional and intellectual needs of the child. I will return to that in a moment.

1. Having regard to the additional considerations, I consider that the most important matters are the views of the child.  I accept the views expressed to the independent children’s lawyer and communicated to the court by the ICL, that is, I am satisfied that the child does not want to spend time with her father at the moment and her wishes are not the subject of any manipulation, but simply reflect the child’s distress at the ongoing conflict and the father’s inability to refrain from either inappropriate comments or behaviour when the child is with him.

2. In relation to (b), the nature of the relationship of the child with each of the child’s parents, I have already described an aspect of that.  I consider that the child’s relationship with both her parents has been marred by the inability of both parents to deal with their misuse of alcohol, both historic and, I am satisfied, current, so as to protect the child from the consequences of that misuse.  Otherwise, the child has a good relationship with her mother, and, subject to the matters that I have already said, is capable of having a good relationship with her father, though, that is not the case at the moment.

3. In relation to (f), the capacity of each of the child’s parents, I consider that this is the real nub of the matter.  For the reasons that I have already described, I think that the capacity of the father to provide for the child’s emotional needs, in particular, is very limited because of his lack of insight into the child’s needs, which are to be protected from parental conflict and the consequences of alcohol misuse.

4. In relation to (i), the attitude to the child and the responsibilities of parenthood, I consider that that is also an important factor, but I do not wish to say any more than I have about that.

5. In relation to (j), I have made a finding that both the mother and the child have been subjected to family violence by the father.  There is no family violence order as far as I am aware. 

6. The other matters I take into account but I do not consider that they have the same weight as the matters I have mentioned.

7. Section 61DA rebuts the presumption of equal shared parenthood where there is a finding of family violence. So the presumption is rebutted, and in this case, I might not have made an order for shared parental responsibility but the position of the parties and the ICL was that I should make an order for shared parental responsibility. However, I saw no real evidence that the parties could effectively communicate, and, in particular, the father’s tendency to extreme denigrating, insulting and coarse language in communications in writing with the mother suggest to me that communication about any contentious matter is likely to be impossible.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Young.

Associate:

Dated:       1 February 2023