Otto and Kaleb

FAMILY COURT OF AUSTRALIA

OTTO & KALEB

[2011] FamCA 1090

FAMILY LAW – CHILDREN – With whom child should live – With whom child shall spend time – Where child lived primarily with father for most of her life – Where child has recently spent equal time with each parent – Where mother seeks order that child live primarily with her – Where allegations by mother of family violence by the father – Where child has missed significant amounts of school whilst in father’s care – Whether living primarily with the mother is in the child’s best interests.

Family Law Act 1975 (Cth)

B & B (1988) FLC 91-978
Briginshaw v Briginshaw (1938) 60 CLR 336
CDJ v VAJ (1998) 197 CLR 172
Donnell & Dovey (2010) 42 Fam LR 559
Goode & Goode (2006) FLC 93-286
Hardie & Capris [2010] FamCA 1046
M & M (1988) FLC 91-979
Marsden & Winch (No 3) [2007] FamCA 1364
MRR v GR (2010) 240 CLR 461
Mulvany v Lane (2009) FLC 93-404
Sigley & Evor (2011) 44 Fam LR 439

APPLICANT:

Ms Otto

RESPONDENT:

Mr Kaleb

FILE NUMBER:

BRC

4123

2010

DATE DELIVERED:

28 October 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

15 – 16 September 2011

REPRESENTATION

FOR THE APPLICANT:

Mr Kaleb in person

COUNSEL FOR THE RESPONDENT:

Ms Kirkman-Scroope

SOLICITOR FOR THE RESPONDENT:

Michelle Porcheron Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Andrew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

IT IS ORDERED THAT:

The father and the mother shall have equal shared parental responsibility for the child B born … 2003 in respect of all “major long-term issues” as defined in the Family Law Act 1975 (Cth) (as amended).
The parties shall each have, during all such time that the child is in their respective care, parental responsibility in respect of issues that are not “major long-term issues”.

Live/spend time with

Save as otherwise specified in these Orders, the child shall live and spend time with the parents as agreed between the parents, or failing agreement:
(a)with the father:
(i)on an alternating weekly cycle, coinciding with the existing cycle, from after school Monday to before school the following Monday, and each alternate week thereafter;
(ii)for the first half of all Queensland gazetted school holiday periods;
(iii)should the following days occur during a period when the child is living with the mother:
A.on Father’s Day from 9.00am to 5.00pm;
B.on the father’s birthday:
(1)from 9.00am to 5.00pm if the birthday falls on a weekend
(2)from 3.00pm to 7.00pm if the birthday occurs on a weekday.
(iv)for Christmas school holiday periods:
A.      from the end of the school term until 9.00pm on Christmas Eve;
B.from 3 weeks after Christmas Eve until the end of the school holidays.
(b)      with the mother:
(i)on an alternating weekly cycle, coinciding with the existing cycle, from after school Monday to before school the following Monday, and each alternate week thereafter;
(ii)for the first half of all Queensland gazetted school holiday periods;
(iii)should the following days occur during a period when the child is living with the father:
A.on Mother’s Day from 9.00am to 5.00pm;
B.on the mother’s birthday:
(1)from 9.00am to 5.00pm if the birthday falls on a weekend
(2)from 3.00pm to 7.00pm if the birthday occurs on a weekday.
(iv)    for Christmas school holiday periods:
A.      from the end of the school term until 9.00pm on Christmas Eve;
B.from 3 weeks after Christmas Eve until the end of the school holidays.

Changeovers

Changeover in respect of all periods of time shall be affected as agreed between the parents, provided the agreed location is not the child’s school or, failing agreement:
(a) At the McDonald’s restaurant closest to the child’s school.

Communication

The parties shall do all things as might reasonably be necessary to facilitate the child communicating with the parent with whom they are not residing at all such reasonable times, and via such means, as the child might reasonably request from time to time.
Each party shall do all such things and sign all such documents as may be necessary or required to:
(a) Authorise each parent to communicate with, and receive communication from, any doctor or health professional of whatever type, whom the child consults;
(b)To speak to, and receive oral or written communication from, any school or other educational institution attended by the child;
(c)Make the other parent aware of the times, dates and places of any sporting or extra-curricular activities engaged in by the child, and to permit attendance at, and reasonable participation in, any such activities;
(d)Keep the other parent appraised of their residential address and telephone contact number;
(e)Notify the other parent should the child suffer any medical emergency, serious illness, or other significant issue affecting the child’s health or welfare, whilst in their care.

School Attendance

Both parties sign all such documents or authorities and pay equally any such reasonable fee as might be required so as to each and together request and direct the principal of the C School (or such other school as the parties shall agree that the child attends) for a period of two whole school years after the date of these orders to:
(a)Provide at the end of each month to Ms D, Family Consultant, a list of:
i)any occasions upon which the child was delivered or collected late from school;
ii)any reasons advanced by the mother or father (as the case may be) for any such late delivery or collection;
iii)any absence from school by the child;
iv)the reason for any such absence advanced by the mother or father (as the case may be); and
v)any correspondence forwarded by the said principal to the mother, father or both relating to the late delivery or collection of the child from school or any absences; and
(b)Provide contemporaneously a copy of the said list and any such correspondence to each of the mother and father.

Dismissal of Other parenting Applications

All extant applications for parenting orders be otherwise dismissed and removed from the list of cases awaiting finalisation.

Publication of Orders

In order to give better effect to these orders, an order will be made pursuant to s 129(g) of the Act that an account of these proceedings be authorised for publication to the school principal, namely a copy of the orders made herein and my reasons for judgment.

IT IS NOTED that publication of this judgment under the pseudonym Kaleb & Otto is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC4123/2010

Mr Kaleb

Applicant

And

Ms Otto

Respondent

REASONS FOR JUDGMENT

When B (born in 2003) (“the child”) was two years of age, her parents separated. There is little evidence regarding what occurred in relation to the child’s care (i.e. with whom she lived and spent time) immediately following her parents’ separation.
On 30 November 2006 (approximately a year after the parties separated), the father applied to this Court for Consent Orders. Orders were subsequently made by consent on 4 December 2006 providing that the parents have equal shared parental responsibility, and for the child to live with her father and spend time with her mother each weekend and half of each school holiday period.
The father suggests that this arrangement “worked well” until approximately December 2009/January 2010; the mother suggests otherwise.
According to the mother, during the three years between the making of the consent orders and the time when the father deposes to the arrangement faltering, the father was aggressive towards her, threatened the physical safety of the child as a result of his association with the E Club and his antisocial behaviour, and failed to ensure the child consistently attended school. These claims by the mother will be dealt with in greater detail below.
The father states that the mother took the child from her school on 30 March 2010 (a Tuesday) contrary to the consent orders. At the time of swearing an affidavit on 4 May 2010 the father deposed to having “not seen [the child] since 30 March 2010”. On 6 May 2010 the father filed an Initiating Application seeking both interim and final orders. One of the interim orders sought by the father was that a Recovery Order issue requiring the mother to return the child to him. The mother conceded during cross-examination that she withheld the child for approximately six weeks. On 31 May 2010, interim orders were made transferring the matter to the Family Court and the child again came into her father’s care shortly thereafter when the paternal grandmother collected her from school.
On 8 August 2010, Principal Registrar Filippello made interim parenting orders for equal shared parental responsibility and for the child to live with each parent on a week-about basis. Time has been progressing in that manner although both parties assert that it has not progressed without incident.
In addition to the conflict between the parents as to what orders ought to be made, the mother states that the father has a history of violence towards her and her elder daughter, who is currently aged 13 and who lived with the parties during their marriage. The mother also described the father more generally, as an aggressive man who desires to live outside of society’s norms and who fails to provide stability for the child both in terms of home environment and schooling. In support of the father’s alleged violence, the mother refers to two Protection Orders made in circumstances that will be referred to in greater detail below.
Significantly, the mother asserts that whilst in the father’s care, the child has a pattern of consistently failing to attend school and/or arriving late. The father says that he “has always regarded [the child’s] attendance at School as a matter of the greatest importance and I have made sure that (unless there is good reason) she is there on time”. The father further deposes that, “as a safety precaution”, the father would drop the child at the office and if she “‘dawdles’ on the way to class, she will be marked ‘absent’ even if she is, in fact, at School, but arrives at class late”. This issue is important and will be addressed further below.
B is not the only child of either party. The father deposes to having seven children (including the child) ranging in ages from 17 years to two months. (The mother claims the father has eight children although the basis for this assertion is unclear). The father’s two eldest children are the product of an eight-year de facto relationship in Country F. According to the father, he communicates with these children “on a regular basis” and he is “still on good terms” with their mother (although the father conceded during oral evidence that the mother obtained a Protection Order against him at the conclusion of their relationship). The father has a two-year-old son, whom he sees regularly, with another woman and he also has a four-year-old daughter and two-month-old twins with his current de facto partner, Ms G.
The mother has another daughter, J, who is currently aged 13 years. The mother has no children with her current husband, Mr H.

Proposals

Father

In his Initiating Application, filed 6 May 2010, the father sought an interim order that the mother spend time with the child at a Contact Centre on the basis that the mother’s stepfather, according to the father, posed a risk of harm to the child. The father sought final orders that he have sole parental responsibility for the child and that the child live with him and spend time with the mother each alternate weekend.
In an Amended Initiating Application filed on 5 July 2011, the father sought final orders in accordance with the orders of Principal Registrar Filippello made on 12 August 2010, namely that the parents have equal shared parental responsibility for the child and that the child live with each parent on a week-about basis.
The father also seeks an order, in accordance with Order 8 of the Principal Registrar’s orders; namely, that the parties be restrained from leaving the child in the care of the mother’s stepfather.

Mother

In a Second Amended Response, filed on 13 September 2011, the mother proposed orders that would see the parties share parental responsibility for the child, who would live with the mother and spend time with the father on each alternate weekend. The mother also sought an order that she be permitted to enrol the child at a different school to the one she currently attends.
During oral submissions, counsel for the mother submitted alternative proposals that accorded with those proposed by the ICL, namely, that the child would live with the mother, but would spend time with the father two out of three weekends. It was also submitted on behalf of the mother that she would not be seeking to change the child’s school.

ICL

The ICL’s proposals, contained in written submissions provided at the conclusion of the trial, would see the parents sharing equal parental responsibility for the child, who would live with her mother and spend time with her father “two out of three weekends from after school Friday until Sunday afternoon”. The ICL also proposes that the child spend half of each school holiday period with each parent.

Issues and Considerations – Discussion and Findings

I am cognisant of the statutory basis upon which I am to ascertain the child’s best interests and the Considerations relevant to same enumerated in s 60CC of the Act. I am also aware that the ascertainment of the child’s best interests takes place within the framework of the Objects and Principles of the Act (s 60B).
That framework has now been discussed in numerous decisions of the Full Court. Examples include: Goode & Goode (2006) FLC 93-286; Donnell & Dovey (2010) 42 Fam LR 559; Marsden & Winch (No 3) [2007] FamCA 1364; Mulvany & Lane (2009) FLC 93-404; and, recently, the High Court in MRR v GR (2010) 240 CLR 461. Other decisions have considered aspects of those requirements including, for example, the expression “meaningful relationship” (see for example, Sigley & Evor (2011) 44 Fam LR 439).
Recently, in Hardie & Capris [2010] FamCA 1046, I attempted to collate my understanding of the principles flowing from the authorities (including those which bind me). I do not propose to repeat those passages here, but I make it clear that I am here applying those principles, as understood by me, as set out in that decision (at [44] to [86]).
Two clear tenets of legislative intent emerge from a consideration of the relevant authorities. First, it is intended that in the usual course both parents should have an ongoing role in the co-parenting and co-nurturing of their children that is of value to the children. Secondly, that tenet, and the interference by a Court in co-nurturing by parents, should, in all cases, be governed by, and consistent with, the determination of best interests specific to those children in their particular circumstances.
The Act makes it abundantly clear, and it reminds the Court numerous times in different places, that the essential exercise in making parenting orders is to arrive at ultimate findings directed to the specific child’s best interests relevant to their specific circumstances.
The assessment of best interests is to be conducted within the statutory objective of maximising parental involvement but only insofar as it is consistent with that assessment. Ascertaining best interests by reference to the Act’s mandatory signposts must embrace the fact that:
It is a mistake to think that there is always one right answer to the question of what the best interests of the child will require. Best interests are values not the facts. (CDJ v VAJ (1998) 197 CLR 172 at 219)
Findings as to best interests underpin each of the specific matters to which the Court is directed by the Act. (See for example, s 60B(1)(a); s 60CA; s 61DA(1); s 65DAA(1)(a); s 65DAA(2)(c) and Note 1 to each of those latter two sections).

Statutory Considerations

Section 60CC(2)(a) – Meaningful relationship

To their credit, both parties have repeatedly acknowledged that the child has a meaningful relationship with each of her parents and benefits significantly from it.
The Family Consultant, Ms D, observed in her report (filed 6 April 2011) that the child “is assessed to have strong positive attachments to her mother and to her father…”.
Ms D went on to state that the father “was proud and glowing in his descriptions of [the child], talking of her imagination and her helpfulness and manners”. During oral evidence, Ms D observed that the father was “very committed and loving of his daughter” and that “[The child] loves him. He loves her”.
Long before any notion of “meaningful relationship” was enshrined in the Act, Nygh J said, in Cotton & Cotton (1983) FLC 91-330 at 78-252:
One of these generally accepted perceptions, as I see it, is that it is desirable for a child to maintain a meaningful relation with each of his or her parents. That is obviously desirable when the parents are living together in a united household, but it becomes even more desirable when the parents are separated. It is a trite observation that the parties to a marriage may divorce one another, but they can never divorce themselves from their children. In that sense, the parties remain tied to one another, at least, until those children can stand on their own two feet which may not necessarily occur at 18 years of age or 21 years of age.
However, that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact's sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist. Nor is it necessary, as it must be obvious from the way I have expressed myself, that access should only be denied if it is established that a parent is likely to be a positive harm to the child — it is the emotional relationship which counts and not the inherent harmfulness of the parent as such: thus I can well imagine that in certain circumstances a woman who leads a totally immoral life such as a prostitute may have something to offer her children. On the other hand, it may be that a person who leads a life which to the general observer is one of a pillar of rectitude has nothing to offer to his children. In this case, as I have said, it is not a question of generalisation. One must come down to the real situation of the parties.
It is patently clear, from Ms D’s report and oral evidence, and from the evidence of both of the parties, that the relationship the child has with each of her parents is not only beneficial to her, but is also significant and valuable (see Sigley & Evor, above).

Section 60CC(2)(b) – Protection from harm

The need to protect a child from harm, which extends beyond physical harm to both psychological and emotional harm, including that emanating from exposure to abuse, neglect and family violence, is a Primary Consideration in ascertaining the best interests of a child. That two Additional Considerations require the Court to address family violence issues further illustrates the importance this issue plays in determining what is in the best interests of a specific child, in their specific circumstances.

The mother, throughout her affidavits, raises concerns that the child may be subjected to emotional harm whilst in her father’s care as a result of his lifestyle and through exposure to alleged family violence. The mother described the father as “aggressive” and “unstable” and indicated that she had been fearful of the father during their relationship.
The mother describes, in a number of her affidavits, a volatile relationship between herself and the father, punctuated by incidences of physical and verbal abuse directed at both herself and her daughter J. For instance, the mother states, in her affidavit filed 5 May 2011:
30. We married on … 2001. By this time I was in a state of subservience and lived in fear of upsetting him over anything, including his wish that we should marry.
…
36. The Applicant Father would constantly verbally abuse and denigrate me in front of both [J] and [the child].
37.The Applicant Father has persistently shown erratic aggressive emotional behaviour…
The mother describes a number of incidents in support of the last allegation, including:
37.b. Again in 2001 I was lying on the lounge and he, without provocation, came and put his hands around my throat and squeezed it, pushing my throat into the lounge. Then he just walked away.
…
37.g. One night he called me and told me that I had better not leave with [the child] as he would come home and dig a hole in the backyard to put [J] and I in.
The evidence before me, specifically documents subpoenaed from the Queensland Police Service (“QPS”) and tendered as part of Exhibit ICL 2, confirms that two Protection Orders have issued against the father, in each of which the mother was named as the aggrieved. The first was made on 7 December 2006, upon an application by the QPS, and remained effective until 6 December 2008. That Order arose, according to the QPS documents, as a result of the father attending at the mother’s workplace where he verbally abused the mother and threw an “eftpos machine” towards her. Documents from the QPS report that:
The [father] phoned the [mother] whilst she was at the police station and attended shortly after. The [father] was verbally abusive towards the [mother] while police where present. He also appeared angry with police for making the application.
The father stated during cross-examination that he did not challenge the Protection Order because “it was safer for me to have that there than anything else”. I am not entirely clear what that means, but I understand him to mean that it proctected him against further allegations.
The mother deposes to a second Protection Order being made against the father on 6 July 2010 which expires on 5 July 2012. According to the mother:
In March 2010 I was again forced to seek the protection of a Protection Order following further incidents of intimidating and abusive behaviour towards me and in the presence of the child…
According to the father, the second Protection Order arose as a result of the mother and her husband attending at the father’s house to collect the child who was, according to the father, too ill to go to her mother’s. As the father deposes “[The child] was sick and I would not let her mother take her away for the weekend”. The father states that the mother:
…got very angry. She was at my front door and I asked her to go away. [The mother] then began yelling that she was not leaving. I opened the door, told her to leave and then slammed the door shut. [The mother’s husband] then got out of the car and stood in front of the house. I ignored him. Next minute the police arrived and stated they were completing a welfare check. Following that incident [the mother] applied for a Protection Order against me. When the police came to serve the application I questioned them about it because all I had done was to shut my own door.
Ms G’s affidavit outlines a similar account of events leading up to the second Protection Order, but additionally, deposes that the child started “crying” when she saw her mother and stepfather arrive and stated, “I don’t want to go to my Mum’s”.
The father denies being served with a second Protection Order. Exhibit ICL 2, in particular a document entitled “Summary of Domestic Violence Order and Conditions” confirms that there is a current Protection Order against the father, which is effective until 5 July 2012. Significantly, that document contains a blank space under the heading “Served On”. A report in Exhibit ICL 2 notes, in relation to a “Private DV Application”, that on 19 July 2010 the Queensland Police attempted to make contact with the father but to “no avail”. It is noted that:
Police tried mobile phone number supplied to no avail was able to locate and speak with [father’s] current girlfriend who stated that they were residing in [I Town] area but would not reveal address and stated that she would tell [father] that order was to be served on him.
…
MATTER TO FILED PENDING LOCATION OF KALEB.
The father denies all allegations of domestic violence made by the mother. In his affidavit filed 4 July 2011, the father specifically addresses, and denies each of the allegations and makes “the general comment that there are a lot of false allegations in [the mother’s] affidavit [filed 28 May 2010]”.
There is no entry on the father’s criminal history (Exhibit ICL 2) of any charge associated with the two Orders.
The mother also deposes to the child informing her that she had witnessed family violence between her father and his current partner, Ms G. It should be noted that in Ms D’s “Issues Assessment” (filed 18 August 2010), Ms D reports:
[The child] did tell me that when her father and [Ms G] argue she and her stepsister “just stay in our room and we just block our ears.” However the child asserted that it was “not scary”.
During oral evidence, Ms G confirmed that she and the father had argued over “bills, household living” but that the father has “never raised a fist to me”.
The father denies being violent towards his partner. Ms G’s evidence largely corroborates this. However, during cross-examination, Ms G conceded that the father had pulled her hair. Ms G also stated that she and the father had “pushed each other” but that the last time the father pushed her was a “couple of years ago”.
The documents from the Queensland Police (Exhibit ICL 2) include an “Emotional Abuse Form” which notes that there was an alleged incident on or about 8 December 2007 at the father and Ms G’s then residence, involving the father, Ms G, Ms G’s then 16 year old sister and several of Ms G’s friends and family. It was alleged that the father kicked Ms G after she had fallen over and then “dragged [Ms G] inside” before placing “both hands around” Ms G’s neck for “about 3 seconds”. It was also alleged that the father had “slapped” and “grabbed” Ms G’s sister’s arm. The police attended at the residence and the father “was detained for the purpose of investigating a DV Incident”.
There is nothing in the father’s criminal history to suggest that he was charged with any offence relating to the alleged incident.
At the time of the alleged incident, the father and Ms G’s infant daughter, K, was asleep in another room. The “Emotional Abuse Form” referred to above states, in respect of K, that:
The Scan Rep has assessed the level of risk of any future abuse or neglect to the child as significant but no scan referral is required. This decision is based on the following reasons: violent nature of incident, age difference btw [Ms G] and [the father] as [Ms G] is young and vulnerable being only 23yrs old while the [father] is 35yrs old and is linked to the [E Club] and the young vulnerable age of the child warrants an assessment of significant risk to the child however it is determined that no scan referral is required at this time as there is no evidence to support that [Ms G] is not willing and able to protect the child as a DV Order has been sought for her future protection…
The documents from the Department (Exhibit ICL 1) reveal that on 21 August 2008, an outcome of “unsubstantiated – child not in need of protection” was entered in relation to both K and the child following an investigation after the events on 8 December 2007.
However, in relation to Ms G’s sister, an outcome of “substantiated – child not in need of protection” was recorded. That outcome pertained to emotional harm experienced as a result of witnessing the incident detailed above. It is noted that:
[Ms L] reports that she was very scared by [the father’s] behaviour and reports that she suffered stress and anxiety for months after the event. [Ms L] further reported she has had recent panic attacks and went to the doctor due to this…
Significantly, the Department notes “Reports from [Ms G’s sister], [the father] and [Ms G] that this incident was a “one-off”…”. During oral evidence, Ms G described the incident as “just an argument”.
The evidence of both the father and Ms G, which was not challenged, was that the QPS made an application for a Protection Order following the incident on 8 December 2007, but that such application was later withdrawn at the request of Ms G.
The father stated, during cross-examination, that the mother of two of his older children obtained a Protection Order against him at the end of their relationship and to his knowledge it was “still going”.
The mother deposes to the child telling her that after the father temporarily separated from Ms G in 2006, she witnessed her father “punch the microwave” breaking it and hurting his had. The mother states that “[B] told me that she and her little step-sister were so scared they ran into their bedroom and hid”. The father denies punching the microwave and instead states that the microwave broke “when we were moving”. The father also deposed to the child telling him “that her Mother had informed her that I had broken my…microwave”.
The mother also states that the child told her she saw the father try and “snatch” K from Ms G during their separation. According to the mother, the child “watched a heated verbal exchange with most colourful language”. The father denies this occurred.
The ICL submits that:
…on the basis of all of this material…the Court would not find that there were reasonable grounds to believe that the Father has engaged in family violence. This submission is made following a consideration of all of the material and the submissions made on each matter earlier in this Outline.
In cases involving allegations of sexual abuse, the issue is not whether abuse did or did not occur, though such a finding may be necessary in certain circumstances (for example where “strong practical family reasons” necessitate a finding: M & M (1988) FLC 91-979, and the Court is satisfied to the requisite standard that the abuse has occurred: Briginshaw v Briginshaw (1938) 60 CLR 336), but rather, whether the person alleged to have abused the child poses as unacceptable risk of harm (e.g. B & B (1988) FLC 91-978 and M & M (1988) FLC 91-979).
Similarly, in determining what orders are in the best interests of children in cases involving allegations of family violence, the issue is not necessarily whether the violence occurred, but rather, whether the parent alleged to have committed the family violence (as that term is defined in s 4 of the Act) poses an unacceptable risk of harm to the child. “Harm” in that context should be seen as a broad concept.
The child was present at the father’s house when the events which ultimately led to the second Protection Order took place. However, Ms G states that the child was in her bedroom reading with a family friend. The child was not present at the father’s home during the incident involving the father and Ms G in December 2007.
Included in the Department’s “Assessment of harm and risk of harm” form discussed above, are the following findings in relation to the child:
It is…assessed that [the child] has not suffered harm as a result of exposure to domestic violence. [The child] was not present during the incident [on 8 December 2007]…[The child] reports being scared at her mother’s but feels very safe with her father. Reports from [Ms G’s sister] are that [the father] is very appropriate with [the child]…
It is significant that the mother stated during oral evidence that her “primary concern is the child’s school attendance” and another concern “is change…change is disruptive”. The mother did not, during oral evidence, flag exposure to family violence as one of her concerns.
In addition to the findings of the Department just referred to, I find it significant that Ms D recommends that, provided the Court is satisfied that the father will “prioritise” the child’s education, the current week-about arrangement should continue. Before making that recommendation, Ms D had recourse to the subpoenaed material, including the various Protection Orders and made reference to same in her report and to the issue of family violence more generally.
Additionally, the father says, and I accept, that he has, in effect, made significant strides in his anger management and behaviour more generally since, as I also accept, he left the E Club. I consider that control of anger has been a problem; I think it likely to have improved significantly and I consider the mother’s prioritisation of other (important) concerns is evidence of this.
I am tolerably satisfied that the child is not at an unacceptable risk of harm from violence, or exposure to violence, by the father (B & B and M & M, above).
The father alleges that the child is at risk of sexual abuse by Mr M (the mother’s step-father), if left in his care.
The father founds this allegation upon a statement by the mother that her stepfather sexually abused her when she was a young girl. The father alleges, and the mother concedes, that the mother’s stepfather “indecently” dealt with her when she was a young girl. The mother states, in her affidavit filed 28 May 2010 that:
32.I do not deny that there were issues with my step-father when I was younger that involved inappropriate conduct on his behalf.
33.I would not leave my children in the unaccompanied care of my step-father. I have taught my children that their bodies are special and should be protected.
The consent orders made on 4 December 2006 contain a provision restraining either of the parties from leaving the child in the care of Mr M.
The father’s Initiating Application (filed 6 May 2010) includes a proposed interim order that the mother only have supervised contact with the child. That order was sought, according to the father, as a result of his concerns regarding the child’s safety when with Mr M.
On 6 May 2010 the father filed a Notice of Child Abuse or Family Violence. That notice pertained to an incident in which the child was left in the care of Mr M.
The mother, in her affidavit filed 28 May 2010 states:
34. I had left the children in the care of my mother who, to my horror, allowed my Step-Father to take the children to the movies. I was unaware that she had allowed this to happen until after the event.
35. After this incident I am aware that the Applicant Father made a report to the Department of Child Safety. The Department of Child Safety investigated and said that there was no cause to intervene.
36. I have not allowed my mother to supervise the children since that time, nor have my children been exposed to my Step-Father.
The documents from the Department contained in Exhibit ICL 1 reveal that the Department was notified that the child and J may be in danger of sexual abuse by Mr M on the basis that he was living in the same house as the mother, along with J, and the child was spending time with the mother on a weekend. The documents also reveal that the notifier claimed that the child was “displaying some sexualised behaviours”.
A “Client File Note” dated 6 June 2008 has written on it “Allan M in system – CPIU not interested”.
The Department subsequently interviewed both J and the child and noted that:
[The child] did not make any disclosures and stated that she likes her grandfather and her mother. [The child] knew of her private parts and stated that no one has touched them. [The child] knew that no one was allowed to touch them. [The child] stated that if she was sad or scared she would talk to “daddy”…
In relation to J, it was noted that “she did not disclose during the interview any concerning information in relation to her grandfather”.
A Case Note dated 11 June 2008 reveals that the father failed to attend with the child at “the Office to be interviewed as part of the ongoing assessment”.
Ultimately, the Department determined:
...to record this matter as unsubstantiated children not in need of protection given that there was no evidence gathered to suggest that J and [the child] had been harmed or are at risk of harm. Both children did not make any disclosures and stated that they are never left alone with their Grandfather.
It is felt that both children have a parent (mother) who is both willing and able to protect them…
Whilst the Department’s determination occurred prior to the incident in which the grandfather took J and the child to the movies there is no evidence to suggest that the grandfather has harmed either J or the child. The mother readily acknowledges the need to ensure that the children are supervised whenever they are with the grandfather, and there is no evidence presently before me, excluding the visit to the movies (and I accept the mother’s evidence that the visit occurred without her knowledge), that the mother has failed to adequately protect her children from her step-father, who no longer lives with the mother.
I am satisfied that the mother is, and would in the future, act protectively and specifically seek to ensure that the child is not left alone with Mr M. I do not consider the child to be at an unacceptable risk of harm whilst in her mother’s care.

Section 60CC(3)(a) – Views of the child

Although the child is still relatively young, she is of an age and stage of development where she is able to express her wishes and “views”. Whilst such views may not be significantly determinative of the matters about which those views are expressed (given her youth), it is, in my view, fundamental that the voices of children should be heard in proceedings about them.
I consider the evidence of Ms D to be the most appropriate medium through which the child’s voice can be heard in these proceedings.
In her report, filed 6 April 2011, Ms D observed:
34.[B] presented as a lively, chatty, confident and extroverted young lady of almost eight years of age. She told me that she liked the current parenting arrangement of “one week with Dad, one week with Mum; I can see them both equally” better than the previous arrangement where “I only got to see Mum on weekends”.
35.[B] told me her favourite thing about her mother: “she reads me stories before I go to bed”, particularly her favourite story called “Jesus is born.” She said that she loves the Chicken Tika meal that her stepfather [Mr H] cooks, and the only thing she would change about him if she had magical powers would be to make him a little bit smaller so it was easier to climb on to his back for a piggyback. She told me that her sister [J] “loves me a lot. She plays with me sometimes. She has beautiful coloured hair.” If the child had magical powers she would change things so she was [J] and could stay up later and could have “awesome” things like [J] as a teenager.
36.As the child chatted to me she drew on the board, volunteering that she was drawing a flower for her little sister [K] who loves flowers. She said that her favourite thing about her father was that “he’s really tall and he’s a little bit funny.” She liked her sister [K] best for “her kindness” and that she was “really funny, she’s crazy.” the child told me about the twin babies in her stepmother [Ms G’s] belly, a boy and a girl who would be born in ten weeks, and that [Ms G] “makes dinner every night and she’s lovely.” With magical powers she would “make K be in [Ms G’s] tummy so I wouldn’t have an annoying sister.”
37.If she were granted three wishes the child wishes that “…[her dog] would be nice to my cat, that everything was made out of chocolate, and houses were made out of popcorn”. Her extra family wish was that “all my family would live together…Dad and [Ms G] in one room, Mum and [Mr H] in another room, and all the kids in a room”.

The child plainly loves both of her parents, stepfather, Ms G and her two sisters.
The child’s wish that all her family could live together in the one home is one frequently voiced by children involved in proceedings in this Court, and plainly reflects the deep, mutual love shared between the child and her parents, their partners and her siblings. That she is more content with the current arrangement in which she spends equal time with each parent is, in my view, reflective not only of this little girl’s love and loyalty to both parents, but also reflects the benefit she derives from spending significant time with each parent and their respective families.

Section 60CC(3)(b) – Nature of the child’s relationship with family members

As has been discussed at length, the child plainly enjoys and benefits from a meaningful relationship with both of her parents. She has expressed her love for her stepfather, Ms G, J and K.
Ms D observed the child with both of her parents, Ms G and her siblings. The child’s stepfather was unable to attend due to illness and thus, was not observed with the child. In relation to the child’s relationship with her mother and half-sister J, Ms D observed:
38.[J] told me that she loved her sister [the child’s] imagination and enjoyed playing with her sometimes, whilst finding her “annoying” at other times. She summed up “we get on okay…sometimes I miss her when she’s not there.”
…
42.In observation with her mother and sister [J], the child greeted her mother warmly and gave her mother a big hug which [the mother] returned with a broad welcoming smile and similar affection. [The child] animatedly showed her mother her dress and a particular toy animal she had been given by a friend, then proceeded to chat spontaneously on various topics, with [the mother] responding appropriately and with interest. the child asked where her stepfather [Mr H] was and seemed genuinely interested and concerned for him when her mother explained that he was sick.
43.Soon [the mother], [J] and [the child] had settled into a lively game with the Playdoh and cooking toys. Later the child wanted to show off her maths skills on the whiteboard, and she gained praise and some assistance from her mother as required. [The child] appeared very relaxed and comfortable and there was an affectionate tone and banter between her and [J]. [The mother] maintained a calm unruffled tone throughout the session. There were more fond hugs when the session concluded and the child was to return to her father.
Ms D reported the following in terms of the child’s interactions with her father, Ms G and her half-sister K:
44.As [the child] had come to the interviews with her father, stepmother and little sister, she was informally observed in the waiting area as well as more formally in the observation room. She appeared relaxed and at ease with [sic] in their company and greeted them warmly when it was time to play with them in the observation room.
45.…[B] tended to gain her father’s attention more as they made things out of Playdoh, and they chatted together in quieter voices, whilst [Ms G] tended to focus more on [K]. Interactions were lively and appropriate, with regular shows of affection.
These observations plainly illustrate the mutually loving and beneficial relationships between the child, each of her parents, Ms G and her siblings. To their credit, both parents acknowledged this, both in their affidavits, and during oral evidence.
In addition to her half-sisters, J and K, Ms G recently gave birth two twins, N and O. In addition, the father deposes to spending time with his son P, currently aged 2 years, “every second weekend” (although the father also deposes to seeing P “every Saturday” (Affidavit filed 4 July 2011, para 26)). According to the father, B “…loves playing with her sister ([K]) and the twins, as well as her step-brother [P]…”. The father also states that the child frequently spends time with his mother, and Ms G’s oral evidence alluded to an almost daily presence of the paternal grandmother in the child’s life. Ms G also undoubtedly plays a significant role in the child’s life when she is staying with her father.
The mother deposes to a relationship between the child and J that is completely consistent with the observations of Ms D and the child’s own statements. According to the mother “[J] and the child play constantly together…”. The mother further states that her husband “supports me in caring for the child by allowing me to spend quality time with her. For example he will cook the evening meal while I assist [the child], and [J], with their homework or undertake a joint activity”.
It is plain that the child enjoys strong, loving relationships with both of her parents, their partners and her siblings.

Section 60CC(3)(c) – Willingness and ability to facilitate relationship

As I have said previously, both of these parents have, quite properly, acknowledged the importance of the presence of the other in the child’s life. That said, there is evidence to suggest that both parents have, at different times and to varying degrees, failed to demonstrate a willingness to facilitate a relationship between the child and the other parent.
The issue of the child’s school attendance will be addressed in greater detail below. Suffice it to say for present purposes, that the father has frequently failed to ensure the child attends school on those Fridays when her mother is due to collect her for the week.
The father suggests that illness was the cause of the child’s absence on several consecutive Fridays in early 2010 (specifically in the lead up to the mother retaining the child). I do not accept this. The child’s school attendance records reveals a pattern of absenteeism consistent with an attempt by the father to prevent the child spending time with her mother. I have little doubt that this was his intention.
Between 29 January 2008 to 31 December 2010, the child was absent from school on a total of 102 occasions. Of those, 43 were “explained” whilst 59 were not. Of the 43 that were explained, 11 occurred on Fridays whilst of the 59 that were not explained, 17 occurred on Fridays (Exhibit ICL 4). More specifically, commencing 26 February 2010 (Friday), there was a pattern of the child being either absent or late on a Friday and being absent or late the following Monday. This pattern continued until 29 March 2010 and on 30 March 2010 (Tuesday) the mother informed the father that she had taken the child from school.
The father stated during oral evidence that he had kept the child from school on several Fridays because he was concerned the mother would “take off” with the child. Whilst the mother did ultimately retain the child for six weeks, it is unclear why the father possessed this concern given that the mother had, prior to early 2010, spent time with the child in accordance with the 2006 Consent Orders without incident.
In addition to the child’s alleged illness, and the father’s asserted concern that the mother would not return the child, the father also stated, both in his affidavit and during oral evidence, that on a number of Fridays before school the child would be “kicking and screaming and I couldn’t do it to her”; “it was heartbreaking”. I asked Ms G, during cross-examination, whether the child had ever “put on a tantrum” or “a turn” about going to school, to which Ms G replied “not a tantrum. Just more whining or the usual ‘I don’t want to go’”. I then asked Ms G if the child’s “whining” had ever been of such a degree that she would refuse to attend school. Ms G said “No. Not that I recall, no”. Mr Andrew then explored the issue with Ms G, who reiterated that any such whining occurred “hardly ever though, [the child] likes going to school so she never really complains of going to school”.
The father asked one question of Ms G in re-examination, namely “have you ever known [the child] to get really upset before she goes to her mum’s on that school day” to which Ms G replied “Yes. On a Friday the child would get very upset and distraught on going and refuse not to go to her mother’s”. Ms G, at least, distinguishes between the child’s attitude to attending school and her attitude to going to her mother’s.
Even if the child’s asserted “tantrums”, illness and/or the father’s purported fear that the mother would not return the child were his sole motivations for not ensuring the child’s attendance at school on multiple, consecutive Fridays, I consider his actions in permitting that state of affairs to persist to fall below a “good enough” standard of parenting. It is contrary to the child’s best interests and an, at least practical, abdication of an important responsibility of parenthood (s 60CC(3)(i)).
But I do not accept those explanations of non-attendance. I consider that there is a direct relationship between non or late attendance on those days and an attempt on the father’s part to frustrate the facilitation of time between the child and her mother.
That said, I think it likely the child did express distress at attending school on changeover days, but not because of a genuinely held desire not to visit that parent. Rather, I consider that the child is highly attuned to her father’s emotions, including his distress at being away from his daughter. As Ms D observed “[The child] is sensitive to her father’s sometimes uncontained emotions such as sadness when he is missing his daughter” (para 47). Equally, I am not persuaded that his actions were necessarily malevolent; rather, they are the actions of a man learning how to deal with difficult emotions.
The mother concedes she retained the child for approximately six weeks in early 2010 but the mother claims she was forced to do so after the father failed to ensure the child was at school, and thus available to be collected by the mother, for approximately six weeks in a row. The mother stated during cross-examination by Mr Andrew that when she “took [the child], I didn’t intend on keeping her. I just wanted to see her”. The mother went on to say that after she had had the child for a week, she attended at the Legal Aid Queensland office in Region Q to get advice regarding how “to get back to how it was”.
When asked why the mother took the child as opposed to filing an application to amend the parenting orders, the mother stated that she had filled out an “urgent application” but it was refused “because it was filled out incorrectly”.
When the child returned to her father’s care (after the paternal grandmother collected her from school on 31 May 2010), the child did not return to school for a further two weeks.
Both parties have, to varying degrees, demonstrated an overt unwillingness to facilitate properly a relationship between the child and the other parent. (Which they each say – I think genuinely – they regard as valuable to her).
Nonetheless, consistent with my earlier finding about a change in the father’s behaviours and attitudes, it should be noted that the child’s school attendances between May and September 2011 strongly suggest that the father is no longer undermining changeovers. There have been no reported difficulties with changeovers since equal time commenced in August 2010.
Ms D also raises concerns with what she described as the father “[having] been more overtly and blatantly critical off the child’s mother to the child over time…”. In Ms D’s “opinion [the mother], who has tried to shield her daughter from the adult conflict, has been more contained and less emotional in her dealings with her daughter, and has not deliberately broadcast her version of events to the child”. In saying that, Ms D did report:
However, in [the mother’s] parenting style which promotes strong values of consistency, routine and structure there is an underlying message that [the father’s] more lax parenting style is somehow wanting, and the child has picked up a more subtle but equally powerful negative message from her mother about her father.
The affidavits of both parents confirm Ms D’s findings; scattered throughout each are judgments about the other’s parenting. Both parents contend that the child tells them she does not want to go to the other parent’s house when it comes time for changeover; rather than reflect the child’s genuine wishes, such behaviour (especially in light of what Ms D reports the child as saying) is, in my view, most likely an attempt by the child to please her parents, given the “negative message[s]” each parent has conveyed, in their own ways (including subtly), about the other.

Section 60CC(3)(d) – Likely effect of any changes

From 2006 until Principal Registrar Filippello’s orders in August 2010, the child has been in the primary care of her father. As a result, she has, as Ms G points out in her affidavit filed 4 July 2011, grown up with her half-sister K. Since their birth in May 2011, she has spent each alternate week with her half-brother N and half-sister O.
Prior to August 2010, the child had not spent as much time with her mother as she had with her father. But, she is clearly thriving in the new week-about arrangement and her father, to his credit, readily acknowledges that this arrangement is more beneficial to the child. There is no doubt that the child enjoys a loving relationship with her mother and half-sister J.
Any change to the current arrangement is plainly an important consideration; it has the potential to cause significant distress to the child, both her parents, their partners, and her siblings. As Ms D noted in her report:
…In [the child’s] mind the new arrangement has taken away the stress of divided loyalties and legitimised her previously unspoken desire to spend more time with her mother without being left with the feeling that she has betrayed her father.
In addition to changes to parenting arrangements, the mother, at the commencement of the trial, also sought an order allowing her to remove the child from her current school and enrol her in a school closer to the mother’s home. According to the mother, her motive was the proximity of the school to the mother’s house (“5 minutes walking” time) and it is where the child presently attends martial arts.
Neither the father nor the ICL agree with the proposal. Counsel for the ICL submitted, such a change would not be in the child’s best interests and Ms D gave evidence in support of that. According to Ms D, the child is “safe, stable, comfortable” at her current school.
During oral submissions, counsel for the mother stated that the mother no longer sought to change the child’s school. When asked why the mother had had such an apparently sudden change of heart, counsel submitted that the mother had the benefit of hearing Ms D’s evidence. When pressed as to what it was about Ms D’s evidence that prompted the change, counsel replied the mother’s position “has changed and it is a positive change”.
It is not unexpected that the course of evidence in a trial (and particularly expert evidence) might impact upon the views, attitudes or position of a party. Yet, reports are available to parties ahead of oral evidence and there is, of course, an expectation that when a parent deposes to arrangements or other matters directly affecting their children, they will do so after careful and thoughtful consideration of what is in their child or children’s best interests. When represented, it might be expected that a practitioner might examine those issues with their client with some vigour. Changes to positions deposed to after each such process might give rise to questions about the genuiness or sincerity of a party’s position or judgments about the degree of care or, more importantly, parental insight that attended the initial positions and depositions. In that respect, it might be observed that “the attitude to ... the responsibilities of parenthood” is a mandatory Consideration.

Section 60CC(3)(e) – Practical difficulty and expense of spending time/communicating with the child

There is nothing on the evidence to suggest that either parent is subjected to any practical difficulty or expense in spending time or communicating with the child.

Section 60CC(3)(f) and (i) – Capacity to provide for the needs of the child and Responsibilities of Parenthood

Ms D observed “[b]oth parents and their respective partners appear to be adequately providing for her day to day practical care and nurturing”.
That said, the father has plainly demonstrated an habitual inability to ensure that the child attends school consistently and/or arrives at school on time.
‘From the commencement of Semester 1, 2008 to the conclusion of Semester 2, 2010, the child was absent 102 days and has been late on approximately 73 occasions. This is plainly unacceptable. It reflects poorly on a core parental responsibility.
The father accepted during cross-examination that it was when the child was in his care that the majority of these late arrivals and absences occurred. The child’s school attendance record reveals that in 2010, whilst living with her father during the week (and spending time with her mother on a weekend), the child was absent from school on 33 occasions.
The ramifications for the child are multi-faceted. There is the potential for an adverse impact not only on the child’s intellectual development but also on her emotional and social development. I agree with Ms D’s observation that:
It is likely that such significant absences from school and the inconsistency of attendance has had a negative impact on [the child’s] education, as she has not only missed large segments of the school curriculum and the time required to consolidate her learning, but also her routine and development of study habits such as perseverance has been disrupted, and potentially her socialisation including her sense of inclusion in the school setting.
The child’s school report from Semester 2, 2010, whilst certainly encouraging in its reference to the child’s “great work” also reveals that the child is behind: “[B] must continue to work hard on her spelling so that she can catch up with the year two curriculum”.
In what was strikingly frank and honest oral evidence, the father acknowledged that missing such significant portions of school “could have been devastating for [the child]” in particular in terms of her “socialising”, her progress in school and her “routine”. The father, again candidly, stated during oral evidence that, whilst he has fathered a total of seven children including the child, the child is the first child he has been responsible for on a day-to-day basis and it has, to use the father’s phraseology, been a “big learning curve”. The father also readily acknowledged that the child’s failure to attend, and frequent late attendance, at school was largely a result of his being “disorganised” and his inability to set appropriate boundaries.
The father deposes to making a concerted effort to ensure the child’s regular attendance at school. The school attendance records from 12 May 2011 to 12 September 2011 reveal that the child has missed three days of school (all unexplained). Whilst counsel for the ICL was unable to determine whether the child was in the father’s care on all (or any) of those Fridays, the reality is that that figure is very significantly less than what it has been in similar timeframes in previous years.
Whilst this fall in the number of unexplained absences tends to support the father’s assertion that he has “started getting my act together and getting [the child] into a routine”, the decrease also coincides with the imminence of these proceedings.
Ms D stated that she did not “have a lot of confidence that it will continue after Court”. I share that concern, primarily because whilst I, too, think the father is “on a sharp learning curve”, the process of learning has been under way for some time and must continue to occur in a family environment full of other learning curves, including twins who are yet babies.

Notwithstanding the amount of school the child has missed, her report cards contain comments from her teachers praising the “great progress” she has made and her “hard” work. Of course, a “week about” arrangement has been in place for the last couple of months.
Aside from the child’s attendance at school, the mother also raises concerns about the ability of the father to provide a stable home environment for the child, given his frequent relocation.
Over the past three years the father, Ms G and their children, including the child, have lived in at least seven different homes. The father stated “a lot of the time we had no choice” but to move as the property owners were selling the property. The father has been living in his present house for approximately two months. I do not attribute “blame” to those who need to move because of their dependance on the rental market, but the number or frequency of moves is, nevertheless, a factor to be considered if it is considered that stability (in all senses of the word) is very important to a child and particularly a child of the child’s age and stage of development, including her educational development. I certainly consider that stability to be fundamentally important.
The mother also claims that the father has failed to ensure that the child attends medical appointments and take prescribed medication; the latter the mother deposes to finding “on [the child’s] return” from time with her father.
The father asserts that the mother “tends to take [the child] to a Naturopath rather a [sic] Doctor and recently she was prescribed some green medication by the Naturopath which gave her stools a green colour and the child also complained of a ‘burning’ sensation when passing a bowel motion”. The father deposed to having “no objection” to the mother taking the child to a Naturopath but asserted that “it would also be appropriate for her to see a traditional Doctor”. The issue of the father failing to ensure the child attended medical appointments and/or took prescribed medication was not raised during cross-examination of the father. I make no finding in respect of either such issue.
No issues were raised regarding the mother’s capacity and or willingness to provide for the child’s needs and, even on the father’s evidence, the increased presence of the mother in the child’s life has resulted in greater stability and routine for the child.
The father appeared to suggest a criticism of the mother because she relies upon a friend to drop the child at school. Yet, that the mother is able to get the child to the friend’s home in time for the child to be dropped at school, on time, merely serves to exemplify the mother’s organisation, routine, general capacity to provide for the child’s needs and her attitude to the responsibilities of parenthood.
In the mother’s affidavit filed 28 May 2010, she states that she has completed the “Keeping Up Contact” parenting program with Relationships Australia. The mother further deposes, in her affidavit filed 5 May 2011, to completing the “Parenting Program” offered by Relationships Australian in February 2011. A letter from Relationships Australia dated 29 June 2011 (Exhibit ICL 6) confirms that the father registered for the “Parenting Orders Program” on 16 May 2011 and “[c]urrently the waiting list for an assessment and intake appointment for the program is 4 – 5 months”.

Section 60CC(3)(g) – Relevant individual, lifestyle and background features

Father’s involvement with the E Club

It is uncontroversial that the father has been involved with the E Club. On the father’s evidence, which was not challenged, he joined the E Club in “late 2006” and left “about 3 years ago”; during oral evidence, the father stated “I’m the only one who has ever walked away from the E Club. No one ever believes it”.
The father’s various residences have been subject to frequent police raids arising, according to the father, as a result of his [asserted prior] involvement with the E Club. The father commented during oral evidence that “I have nothing to hide” and the QPS “haven’t found anything”. The father’s criminal history tends to support the latter contention; offences are revealed up to 24 January 2008 which might be seen be seen to be consistent with [a prior] involvement with ‘the E Club’.
The child has been present during two raids. Again, if, as I think likely, the father is genuinely attempting to change a prior lifestyle for the better, he is not to “blame” for this yet, again, it is a factor relevant to the stability and integrity of a child’s household.
In 2008, the house to which the father had recently moved was destroyed by fire. Whilst there is no evidence before the Court to suggest this was a direct result of the father’s involvement with the E Club, the “Assessment of harm and risk of harm” form from the Department (dated 21 August 2008) reports “[the father’s] house burnt down during the investigation and there are allegations that this may have been arson. It is not unreasonable to assume that this is linked to the [E Club]”.
The mother deposes to being told by the child that in August 2009 that:
...two men came to the Applicant Father’s residence. The Applicant Father was not there. [the child] told me that they trashed everything in the house, that there was lots of yelling and that one of the men had slapped his partner, [Ms G], in the face. [The child] heard one of the men say that he would be back to put a bullet in the Applicant Father’s head. [The child] feared for her Father. The Applicant Father and [the child] stayed at his mother’s house for a few days.
The father denies this occurred. I am inclined to disbelieve him.
The Department reported on 21 August 2008 (Exhibit ICL 2) that:
[The father] has indicated that he recently left the [E Club] so that he can concentrate on being a father to [the child]. This is confirmed by Police Officer, [Constable R], therefore the risk that [K and the child] could suffer future harm due to [the father’s] involvement with the [E Club] is greatly reduced.
…[The father] appears very child focused and has gone to great lengths to ensure he can parent [the child]. For example, [the father] has left the [E Club] at great expense as he had to give them a $30,000 Harley Davidson as well as a car. [The Father] reports that the reason he left the club was to concentrate on being a parent. He did not believe that he or [the child] were at risk of harm due to leaving the club…Even if [the father] maintained his membership with the [E Club] there is no reason to believe this would impact his ability to parent [the child] and [K]. [The father] has been cooperative and child-focused during interviews with departmental officers and there were no concerns identified that would suggest his affiliation with the [E Club] was having an impact of [sic] [K] or [the child].
I am inclined, in light of this evidence and in the absence of any suggestion by counsel for the mother or the ICL that the father is still a member of or involved in some capacity with the E Club, to accept the father’s evidence that he is no longer involved with the Club.
The decision by the father to leave the E Club plainly demonstrates, as Ms D observed, a readiness on his behalf to “turn a lot of his life around” and “put [the child] first”. These observations are entirely consistent with those of the Department detailed above.
Yet, again, concerns remain that while this wholly commendable (and no doubt difficult) process continues to occur, issues of stability, in particular, arise within the learning curve/s.

Religion

The mother deposes to “expos[ing] the child to her Christian ethics…since she was three”. The mother goes on to state that the child “enjoys attendance at Sunday School”.
The father deposes to attending “‘[S]’ Church on a regular basis” with the child and Ms G. According to the father “[The child] enjoys participating in the Church service, particularly singing”.
Whilst neither parent raises any issue with the child’s exposure to the other parent’s religious beliefs, the father states, in his affidavit filed 4 July 2011, that he is concerned that the mother “does not attend a mainstream church but goes to church in a warehouse”. I place no weight on this.

Section 60CC(3)(j) and (k) – family violence and family violence orders

The issues of family violence and the existence of family violence orders have previously been canvassed, at length, in these Reasons in particular in relation to s 60CC(2)(b).

Section 60CC(3)(m) – Least likely to lead to further proceedings

The father commenced these proceedings in May 2010, after the mother had retained the child. These are the first “contested” proceedings involving the child; the parties had previously consented to parenting orders in 2006.
There is no evidence to suggest that any particular decision would be likely to lead to further proceedings. The father stated during submissions that he would “accept” the Court’s “decision” including a decision reducing his time with the child: “if that’s the best thing for the child I’ll respect that”. I believe him.

Section 60CC(4) and (4A) – Fulfilling Responsibilities

The mother’s evidence suggests that she has not previously sought to consult with the father in respect of certain issues affecting the child, such as her desire to change the child’s school, because her history with the father led her to believe that he would oppose anything she suggested.
The father acknowledges that communication between the parties has been less than satisfactory, but blames that inability to communicate on the mother’s new husband as opposed to any failing on his and/or the mother’s behalf.
Ms D reports that:
[The father] and [Ms G] reported ‘no arguments’ with [the mother] since the shared care commenced and they asserted a willingness to discuss issues with [the mother] whilst portraying her as the one refusing to cooperate and negotiate. They asserted that there had been no success with previous use of a communication book. However, they said that they hoped in the future they could all be civil so for example if the child began playing a sport they could all go and watch her and support her ‘even if it’s not our week’. [The father] and [Ms G] reported that the school now ensured that forms and information was given to both households.
The mother states, in her affidavit filed 5 May 2011 that:
The Father continues to be unable to communicate with me on a meaningful basis in the interests of the child and taking a child focussed approach, either not responding to telephone calls or text messages requesting details in respect to changeover, or sending inappropriate messages.
The mother does not provide any examples of the father’s “inappropriate messages”. The mother does, however, describe an incident in October 2010 when the father failed to “present the child at school...where changeover was to occur” and “failed to respond to telephone calls or text messages from myself or my solicitor...”. The mother proposes an order that the parties communicate using a “Communication Book”.
As the excerpt from Ms D’s report at paragraph 169 reveals, the parties have, at least according to the father, previously attempted to utilise a communication book with little success.

Parental Responsibility and the Court’s Power

I attempted to distil the principles emerging from earlier authorities, including those which bind me in respect of this issue in Hardies & Capris, above, specifically at [59] to [64]. Again, I do not propose to repeat them here but, again, I make it clear that I rely upon those principles as there discussed.
Pursuant to s 61DA, in making parenting orders in relation to the child, it is presumed that it is in her best interests that her mother and father have equal shared parental responsibility for her. This presumption does not, however, apply where there has been “abuse” or “family violence” (s 61DA(2)) and is rebuttable where equal shared parental responsibility is not in the child’s best interests (s 61DA(4)).
Both parents and the ICL propose an order for equal shared parental responsibility.
Allegations of family violence have been addressed at length earlier in these proceedings; the mother alleges that the father has perpetrated family violence both during their relationship and subsequent to it. Counsel for the ICL submits that the Court could not be satisfied that there are reasonable grounds to believe the father has engaged in family violence within the meaning of s 61DA(2). It is not necessary to make any such finding. As will emerge, even if the presumption does not apply, I consider it is in the child’s best interests that an order to that effect be made.
The Act (s 65DAC) makes clear that sharing parental responsibility in respect of “major long-term issues” is not a passive activity; it requires those sharing parental responsibility to make joint decisions and to consult and attempt to reach agreement in order to do so. A finding that the parties are incapable of achieving now, or in the foreseeable future, what the Act requires of those who share parental responsibility is, in my view, a highly relevant matter in determining whether an order for shared parental responsibility is in the child’s best interests.
Each of the parties have recounted, both in their affidavit and oral evidence and to Ms D, issues impeding their ability to communicate with each other, about the child. Each party blames the other for these issues. Yet both parties have expressed a desire to communicate with the other in relation to the child.
The orders sought by each party might be seen to convey a shared belief that they will be able to communicate with respect to the child. The ICL does not raise any issues with respect to the parties’ ability to communicate and also proposes an order for shared parental responsibility.
Despite the concerns about communication earlier raised, I am satisfied that both parents are capable of carrying out the tasks and obligations ultimately required by the Act. I record my hope, and guarded optimism that each will continue to develop a respect for the other and the other’s position in the child’s life.
I will order that the parties have equal shared parental responsibility.

The Section 65DAA Imperatives

The Court is obliged to consider both the question of whether it is in the child’s best interests to spend equal time with each of her parents and the further question of whether it is reasonably practicable that the child spend equal time with them. If either or both of those questions are answered in the negative, the Court is obliged to consider each question in respect of the prospect of the child spending substantial and significant time (as defined) with each of her parents.
In the instant case it is convenient to deal with the second of the questions required in each case.
As is amply demonstrated by the child’s co-parenting since the order for “week-about” time was made by the Principal Registrar, there are no matters of reasonable practicability (as referred to in s 65DAA(5)) that would prevent the implementation of, or point against, orders for equal time.
Different considerations, relating to the parents’ respective capacities to communicate and co-operate with each other might impinge upon issues of reasonable practicability (as defined – s 65DAA(5)), and any consequent impact that may have for the child, insofar as arrangements for, and in particular changeovers in respect of, substantial and significant time.
First, though, attention needs to be directed to the first of the two questions necessary to be asked prior to the making of parenting orders insofar as that question applies to prospective orders for equal time.

Equal Time

It will be clear from the findings earlier made that there is much to commend an ultimate finding that it is in the child’s best interests that she spend equal time with each of her parents.
She plainly has a happy, healthy and loving relationship with each of them and is plainly very closely attached to both. It is to the considerable credit of each of these two parents that, despite a number of significant difficulties in their communications and my concerns about their respective willingness and capacity to promote a relationship between the child and the other parent, that they have each managed to bring to bear a collection of resources such that the child presents as the healthy happy and loving child with respect to each of them that is so clearly manifest in the evidence.
These factors can, in my view, be seen as an appropriate foundation for Ms D’s ultimate opinion that, if this Court was satisfied that the father is willing and able to prioritise the child’s schooling, that orders should be made reflecting the current week-about arrangement. Ms D’s opinion can be seen to very much turn upon that specific issue which, as has been discussed above, can be seen to have reflection in a number of the mandatory statutory Considerations.
That same issue can be seen to be very much at the heart of the ultimate submissions made on behalf of the ICL and the mother. As has earlier been observed, the mother’s Amended Response, suggested that the child should spend time with her father each alternate weekend. Ultimately, in oral submissions made on her behalf, the mother’s proposal accorded with that of the ICL.
As I have made clear, I consider that the issue of the child’s schooling and, specifically, her regular attendance at school on time and the removal of unexplained absences or lateness is an extremely important issue that finds reflection in a number of important mandatory Considerations (and the child’s best interests described generally). But, nevertheless, I consider that there are other Considerations directly relevant to a decision about the child’s best interests that are also important in arriving at an ultimate decision about that paramount question.
I consider that the change to the child’s living arrangements (by which I mean both the primary care afforded to her by the father until the current arrangements were put in place and the more recent “week-about” arrangement) is an extremely important matter in assessing the child’s best interests.
If the proposals of the ICL and mother were made as orders, the comparison in the amount of time that the child would spend with each of her parents when compared to the current arrangements is stark. Taking, as an example a 12 week cycle, the child would move from spending 42 nights with her father to spending 16 nights (noting in that respect that the proposals of the mother and ICL would see the child spending time with her father from after school Friday until Sunday afternoon on two out of three weekends – i.e. two nights on each occasion).
The number of nights is not, of itself, the issue; rather the difference in the nature of the relationship with her father available to the child if time is reduced by such a dramatic amount is, in my view, very significant indeed. There is a markedly reduced opportunity for the child to receive from her father care of the nature and extent to which she has been accustomed for most of her life. There will be a marked difference in the nature and extent of the relationship which, in terms of its ostensible manifestations, she is plainly relishing.
Moreover, and by no means insignificantly, the nature of the time that the child would spend with her father on those proposals would change from time which incorporates day-to-day routine time with all that implies, to solely weekend time with all that implies. Whilst such an outcome might be thought arguable on the basis of the finding already made that the mother (and her household) has a greater capacity to provide day-to-day stability for the child than the father, the nature, type and regularity of the time provided for her in the proposals must also, in my view, have a distinct impact upon the child.

Additionally, the Act can be seen to reflect the importance of both parents having an active role in day-to-day time for a child as well as what might, for a school-aged child, be considered “down time” on weekends. (See eg s 60B(1)(a); s 60B(2)(a); (b); (c). See also, eg, s 65DAA(3).) I consider the change inherent in the proposals of the ICL and the mother is contrary to the child’s best interests. As a corollary, maintaining the current nature of the relationship is to continue relationships genuinely meaningful to her and from which she benefits.
Those findings do not seek to ignore what, by reference to the earlier parts of these reasons, I plainly consider to be extremely important considerations in assessing the child’s best interests.
I am profoundly concerned about the child’s school attendance and I have some reservations about the capacity for the father to provide the firm boundaries and routines necessary to facilitate a disciplined approach to regular attendance at school on time. The father himself admits to being on “a big learning curve” with respect to her day-to-day care. Nevertheless, I consider that there is a process of positive change underway. Secondly, and importantly, I consider that the father has increasing insight into those matters and what he himself regards as his deficiencies in that respect. I consider it likely that the process of change which I find has commenced, and is now well under way, will continue. I am guardedly optimistic that the father’s insight and growth as a parent will continue.
Furthermore, I consider that the issue of school attendance – which as I have found, has, in any event, improved – can continue to be monitored in a positive way that serves both as a means of observing “compliance” with what I have found (and continue to hope) will be a significant continued improvement in respect of school attendance and will also serve as a positive ongoing encouragement to the father (and more broadly his household) to maintain its importance.
In addition to the matters just referred to, I very much have in mind that the child now has a new family grouping which surrounds each of her parents. Included within that grouping are sibling relationships which, on the evidence before me, she enjoys and receives benefit from, and which, in my view, will continue to be important for her as she grows and develops.
In my view, the child needs the opportunity for those relationships to grow and develop and all the more so in respect of the very young siblings in her father’s household. I consider the opportunity for those relationships to continue to grow and develop to be a very important matter in assessing the child’s best interests.
Taken together and with the measures I propose to put in place with respect to school attendance, I consider that it is in the child’s best interests to spend equal time with each of her parents and for that to occur “week about”.
The evidence before me suggests that changeovers at school have been problematic. I have previously referred to the issue of the willingness and capacity of each of the parties to provide for a relationship between the child and the other parent. It will be plain from earlier parts of these reasons that I have found that, in the past, the father has used late or non-attendance at school as a means of attempting, at least to a certain extent, to control or frustrate the child’s time with the mother. This is plainly unacceptable, a fact which the father says, and I accept, he now understands.
Nevertheless, I consider it better to preclude the opportunity for school being used as, or forming the backdrop for, any conflict or issues about time or, indeed, as a facilitation point where any ongoing communication difficulties (which I fervently hope will be ameliorated by the cessation of these proceedings) might occur. None of those things can be seen to be beneficial to the child and I consider it in her best interests that school be removed as a potential backdrop for any or all of those matters. With that in mind, I propose to effect changeovers at a place other than the school.
For all of the reasons earlier outlined orders will be made that:
(a)The parents have equal shared parental responsibility for the child;
(b)Provide for the child to spend equal time with each of her parents on a week-about basis;
(c)Changeovers shall occur at a venue other than the school as might be agreed between the parties in writing, or failing agreement, at the McDonalds restaurant situated closest to the child’s school;
(d)Both parties sign all such documents or authorities and pay equally any such reasonable fee as might be required so as to each and together request and direct the principal of the C School (or such other school as the parties shall agree that the child attends) for a period of two whole school years after the date of these orders to:
i)Provide at the end of each month to Ms D, Family Consultant, a list of: (a) any occasions upon which the child was delivered or collected late from school; (b) any reasons advanced by the mother or father (as the case may be) for any such late delivery or collection; (c) any absence from school by the child; (d) the reason for any such absence advanced by the mother or father (as the case may be); and (e) any correspondence forwarded by the said principal to the mother, father or both relating to the late delivery or collection of the child from school or any absences; and
ii)Provide contemporaneously a copy of the said list and any such correspondence to each of the mother and father.
(e)In order to give better effect to these orders, an order will be made pursuant to s 129(g) of the Act that an account of these proceedings be authorised for publication to the school principal, namely a copy of the orders made herein and my reasons for judgment.

I certify that the preceding one hundred and eighty-six (186) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy delivered on 28 October 2011.

Associate:

Date: 28 October 2011

[2011] FamCA 1090

28 October 2011

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Procedural Fairness

Remedies