P & F

[2005] FMCAfam 393

FEDERAL MAGISTRATES COURT OF AUSTRALIA

P & F [2005] FMCAfam 393

FAMILY LAW – Child – competing applications for residence – child aged eighteen months of part T and S background – high level of conflict between the parties – best interests – matters to be considered.

Family Law Act 1975 – ss.60E, 65E, 68F, 70NE  

B and B: Family Law Reform Act (1997) FLC 92-755
T & N [2001] FMCA fam 222
Brown & Ferguson Unreported decision of Moore J number BR8668 of 1996
B & R & the Separate Representative (1995) FLC 92-636
Grant v Grant (1994) FLC 92-506
Russell v Close Unreported Full Court of the Family Court Number 45 of 1992
Sedgley v Sedgley (1995) FLC 92-623
In the marriage of J D & B G (1994) 18 FLR 255
In the marriage of Patsalou (1994) 18 FLR 426
Briginshaw v Briginshaw (1938) 60 CLR 336
Kelly & Kobelnek unreported decision of Justice Hannon Family Court of Australia
Stevenson v Hughes (1993) FLC 92-363

Applicant: P M P

Respondent: J C F

File Number: DNM228 of 2004

Judgment of: Brown FM

Hearing dates: 16 & 17 June and 27 July 2005

Delivered at: Darwin

Delivered on: 4 August 2005

REPRESENTATION

Counsel for the Applicant: Ms O

Solicitors for the Applicant: N T L A C

Respondent: In person

Counsel for the Child Representative: Ms M

Solicitors for the Child Representative: M & C S

ORDERS

(1)That the child of the relationship M C F-P born 20 December 2003 live with the mother.

(2)That the mother have responsibility for making all day to day decisions concerning the child’s care, welfare and development and in particular the medical practitioners the child attends and the routine medical treatment she receives.

(3)That the father have contact to the said child as follows:

(a)On each Tuesday and Thursday between the hours of 9.00am and 3.00pm with the child to be exchanged at the C Police Station at the beginning and end of each contact period.

(b)On any other occasions and on any other conditions as may be agreed between the parties from time to time.

(4)That each of the parties be and are restrained from denigrating the other party, in the presence or hearing of the child.

(5)That the father be restrained and an injunction issue restraining him from having the child medically examined without the mother’s written permission other than in the case of serious medical emergency. 

(6)That the father be restrained and an injunction issue restraining him from consuming alcohol during any period of contact or for a period of six hours prior to any such period of contact.

(7)That the mother be restrained from changing the child’s place of residence from an area within a thirty kilometre radius of the D post office.

(8)That the mother be permitted to travel to B I with the child for periods of up to seven days every three months on giving seven days written notice to the father and in such eventuality Order 3(a) hereof is suspended.

(9)That the parties keep the other informed of their current residential addresses and contact telephone numbers and advise the other within forty eight hours of any change to those details.

(10)That the parties keep the other informed in the event the child is hospitalised due to injury or illness and provide details of the treating doctor or like professional.

(11)That the contravention application filed 12 November 2004 is dismissed.

(12)That all other applications are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DARWIN

DNM228 of 2004

P M P

Applicant

And

J C F

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings relate to final parenting arrangements for one child, M C F-P[1] born 20 December 2003.  M C is heir to a rich and long cultural tradition on both her maternal and paternal sides. 

   [1] This is the spelling of M C’s name which appears on her birth certificate

2. Her mother, the applicant in these proceedings, is P M P.  She is T and was born on B I on 5 September 1979.  Her father, the respondent in these proceedings, is J C F.  He is S having been born in O in S on

   
   

   11 June 1948, although he has lived in Australia for many years.

3. These proceedings have been difficult for all concerned for a number of reasons, the chief of which has been the different backgrounds and expectations of the parties.  They are very different people, from very different cultural traditions who, as a result, necessarily have very different views regarding a wide range of parenting issues.  As one of the witnesses[2] in the case observed, there is a “chasm” in the parties’ attitudes and approaches to parenting and a lack of connection in experience between the two of them.   These difficulties have caused or compounded a very high level of tension and mistrust between the parties, which has not been assisted by the fact that the father has been representing himself in the proceedings.  As a result of these difficulties, it was ordered that M C be separately represented in the proceedings.  The person appointed to safeguard M C’s best interests is T M.  Ms M is an experienced D family lawyer. 

   [2] The witness was Mr R, the family report writer.

4. When parents who no longer live together ask the court to determine where and with whom their child should live, it is the best interests of the child concerned which are paramount.  The court must decide which of the parties competing proposals is most likely to advance the best interests of the child concerned.  These proceedings are largely concerned with investigating which of the parties’ proposals is more likely to serve M C’s best interests.  However, there is a subsidiary issue concerning whether the mother has contravened some interim orders which were made on 25 May 2004.

5. It is the mother’s position that M C should live predominantly with her and have regular contact with her father.  At this stage, given M C’s tender years and her concerns about Mr. F, it is her belief that these periods of contact should be restricted to daylight hours.  Essentially, it is her position that the father is determined, against all cogent evidence, to prove that she is a poor and neglectful mother and so will use every opportunity he has to spend with M C to gather evidence against her.  As a result, he will persist in having the child unnecessarily examined by doctors and other experts and will convey his essentially negative attitude about Ms P to M C to her long-term emotional detriment.  As such, he is focussing on his own needs, rather than M C’s needs and shows a poor level of insight into the responsibilities of being a parent.

6. As a result of these matters, Ms P is fearful and suspicious of the father, and so believes that arrangements for M C to have contact with her father need to be cautiously managed and that arrangements for her exchange between the parties are required to be closely regulated.

7. The father is highly critical of the mother’s abilities as a parent.  He believes that the mother is unreliable and neglectful of essential matters to do with M C’s health, nutrition and hygiene.  He has gathered evidence which he believes supports his view.  However, up to this stage, those in authority have either, wilfully or negligently, refused to act on this evidence.  As a result, it is his position that M C should live predominantly with him, or at the very least, there should be a shared care arrangement put in place whereby M C lives for equal periods of time with both her parents.  Because Mr F has been acting on his own behalf in these proceedings, his proposals have not been outlined with a great deal of precision.

8. It is Ms M’s position that M C should continue to live with the mother and have regular day time contact to her father on two or three occasions each week.  She is supportive of what she describes as “safeguard” orders which would prevent Mr F denigrating Ms P or subjecting M C to unnecessary medical examinations.  She does not believe that Mr F’s claims of physical neglect of M C can be made out.

9. In order to assist the court with resolving this difficult matter, a family report was ordered to be prepared.  The report was prepared by S R, an experienced family and child counsellor and mediator.  In his report, Mr R recommended as follows:

   “I recommend that M C continue to reside with Ms Portaminni.

   I further recommend that the father have day contact with M C at least one day per week and that contact be extended further as the child develops with increasing age.

   I believe that over-night contact should not commence until a stable, workable pattern of day contact has been established, and that over-night contact should not take place until M C is a minimum of three years of age, assuming that day contact has been regular and free of conflict for the parties involved.”[3]

   [3] See family report dated 21 December 2004 at paragraphs 39-41.

10. The relationship between the parties was not a long one.  They began to live together in 2001 and separated in difficult circumstances, in May of 2004, when M C was only five months old.  At this stage Ms P asserts that Mr F removed M C from her care and so compelled her to begin proceedings in this court.  On the other hand, it is Mr F’s position that, due to the mother’s irregular lifestyle, he was compelled to assume responsibility for M C, particularly because she was suffering a serious skin rash at the time. 

11. Notwithstanding these divergent views between the parties, they were able to agree on some interim arrangements for M C’s care on 25 May 2004.  Pursuant to these orders, Mr F was to have contact to M C every second day from 10.00am until 5.00pm with the child to be exchanged between the parties at the N shops near the police station.

12. It is common ground between the parties that these arrangements soon broke down, although they each have a different view as to why this was so.  Ms P asserts that it was not practical for her to travel to N as required and thereafter the parties consensually agreed to vary the orders so that M C was collected for contact by Mr F at the D A and I W’s S (DAIWS).  However it is her position that after this agreement, Mr F lost interest in having contact with M C and did not pursue the matter for several months.

13. On the other hand, Mr F asserts that he did not agree to any variation of the orders.  It is his position that he went to DAIWS under sufferance and only so he could spend some time with M C.  Thereafter Ms P became increasingly obstructive of him having any contact with M C and frustrated his relationship with her.  As a result, he instructed his then solicitor to institute proceedings to re-instate his contact with M C but his solicitor negligently ignored his instructions and compelled him to take matters into his own hands.  As a result, on 12 November 2004, he instituted contravention proceedings against Ms P.  He alleges that on numerous occasions since July of 2004, the mother has contravened the interim orders.  Ms P denies any such contravention and asserts that she has a reasonable excuse for her non-compliance with those orders. 

14. These in brief are the competing applications which fall for determination before the court.  It is a difficult case, which present no easy solutions.  The conflict between the parties is intense and intractable.  Currently they can see no good in the other.  They are unlikely to be able easily to bridge the chasm, as Mr R saw it, between them.  This conflict is harmful to M C and may result in her being left on one side or other of it, with consequences for her long term emotional development and sense of identity.  However, I have no doubt that both parties love M C very much and both fervently want the best outcome for her from these proceedings.

Background

1. Ms P is now twenty five years of age.  She speaks English well, although her first language is T.  She attended primary school in both D and B I and went to A boarding schools in both C and S.  Besides M C, she has another child A L, who is aged about six.  A has not lived with Ms P since he was aged about two.  Currently he is cared for by his uncle, R L.

2. Mr F is currently fifty seven years of age.  He speaks English well but it is obviously not his first language.  He had the assistance of a S speaking interpreter during the proceedings.  Mr F has lived in Australia for the past twenty nine years.  He is currently in receipt of a disability support pension as his main source of income but has driven taxis in the past.  The parties apparently met in 2001, when Ms P was a passenger in the taxi Mr F was driving.

3. The relationship between the parties seems to have been a turbulent one.  At any event, it is the father’s case that the mother frequently left him; was promiscuous;and had serious alcohol and gambling problems.  These allegations are denied by the mother.  It does however appear clear that the mother did often spend time in refuges, particularly DAIWS.  On any view, the relationship was not a stable one. 

4. M C was born at the R D H on the 20 December 2003.  The parties finally separated on 18 May, 2004.  On this occasion, the mother left the father’s home in N.  She took M C with her.  At the time she was breast-feeding the child.

5. The following Sunday, 23 May 2004, the mother took M C to the N Market in a pram.  At the market they met Mr F.  Again the parties have differing views as to what happened next.  In the mothers account, the father removed the child from her.  In the father’s account, he was allowed to have contact with M C and took her to his home.  He refused to return the child because he believed she was suffering from a severe rash.

6. This incident led to the instigation of these proceedings.  The mother filed an application on 24 May 2004 seeking the return of the child.  At her request the matter was listed as a matter of urgency on the following day.

7. On 25 May 2004 both parties attended at court and were represented by their solicitors.  They were recently separated.  The child concerned was very young, being only about 5 months old at the time.  It was a difficult situation.  The parties conferred through their respective solicitors and were able to agree on some arrangements for M C’s care in the interim.  As a result of their agreement, the following orders were made:

   “1.That the child M C F-P born 20 December 2003 reside with the mother and she have responsibility for the day to day care, welfare and development of the child when in her care.

   2.   That the father have contact to child each alternate day from 10am to 5pm and the father be responsible for the care, welfare and development of the child when in his care.

   3.   That the changeover occur at the N Shopping Centre in the vicinity of the Police Station.

   4.   That the parties do attend mediation with a counsellor at the Family Court of Australia with such counselling to include the Aboriginal Family Consultants.”

8. At the time, I was somewhat concerned as to the workability of these orders, given the obviously high level of tension in the parties’ relationship.  Nonetheless, I was content to make the orders because they ostensibly reflected agreement between the parties in respect of future arrangements for M C’s care.  It is now Mr F’s position that his solicitor prevailed upon him to agree to the orders, when he would have preferred to have been the primary residential parent because of his ongoing concerns about the mother’s ability to properly parent M C.  No specific medical evidence was provided in respect of the rash, which so concerned Mr F at this stage.

9. At the time the consent orders were made, the mother was living with M C at DAIWS in M.  The father was living in N.  The mother did not have a car nor have access to private transport.  At the time, she was reliant on either taxis or the bus to get to N from M.  It is her position that she thought the father had agreed to assist her with the costs of getting a taxi to and from N.  The father refutes any such situation. 

10. Contact occurred on 28 May 2004 but not again until 3 June 2004.  Between 3 June and 24 June 2004 the contact occurred but Ms P is critical of Mr F for arriving at contact under the influence of alcohol and being abusive towards her.  On 28 June 2004, she applied for a domestic violence order against Mr F in the Local Court at D.  Mr F consented to the order, without admitting any fault on his part.  The order was for a period of 12 months.

11. It should have been apparent to all who were involved in the matter up to this stage, including the legal representatives involved, that the consent order of the court, made on 25 May 200, was proving problematic.  Nonetheless, neither party applied to formally change the order.  The matter was mentioned before the court on 15 June 2004 and again on 13 July 2004, on which latter occasion it was fixed for final hearing and a family report was ordered to be prepared.

12. It is the mother’s position that her solicitor negotiated with Mr F’s then solicitor to informally change the arrangements for contact so that Mr F would collect M C from DAIWS.  This arrangement apparently occurred between 30 June and 13 July 2004.  Again the parties have different views about it.  It is Mr F’s view that he never voluntarily consented to such an arrangement and it occurred very much under sufferance.  On the other hand it is Ms P’s view that the arrangements were consensually agreed to and, in any event, Mr F was disinterested in having contact with M C.

13. Around 15 July 2004 the father’s former solicitor wrote to the mother’s solicitor indicating that his client wished to apply for an order for parentage testing.  The letter was written in the following terms;

    “My client wishes to apply for an order that DNA testing take place to ascertain as to whether he is the natural father of the child or not.  I have written to your assignments section.  Will your client consent to the test?  I enclose, as promised a while ago, a notation of the NT Police regarding your client’s occasional nocturnal activities with third parties.  The notation is sufficient to cause my client concern that he is in fact the father.  I note your comment a few weeks ago that the child looks distinctly S.  Such conclusions are all in the eye of the beholder and the difficulty that we have is that we do not know the genetic heritage of the third-party.  He may be P.”[4]

    [4] In evidence no reference was made to the alleged N T Police “notation”.  I have therefore no knowledge of what is meant specifically by this portion of the letter.

14. It is the mother’s case that she agreed to such testing but that the father failed to make the necessary arrangements for it.  It is also her position that the father failed to pursue any contact with M C, although she herself was amenable to it, provided that appropriate arrangements for hand-over were made.  She asserts that her solicitor raised with Mr F’s solicitor the possibility of M C being exchanged between the parties at C.

15. Undoubtedly there was no contact between Mr F and M C in the latter part of 2004.  The parties have very different views as to why this was so.  From Mr F’s perspective, Ms P was wilfully defying the earlier orders of the court.  From Ms P’s perspective, Mr F was disinterested in coming to DAIWS, which was what had been agreed.  Formally neither party attempted to rectify the fact that the orders of 25 May 2004 did not reflect the reality of their situation.

16. I suspect that Mr F became angrier and more frustrated.  He is not particularly adept in the use of written English.  He is not a trained lawyer.  I accept that he approached his solicitor in respect of the matter but the issue was not dealt with as promptly as he would have wished.  Relations between Mr F and his solicitor broke down.  The parenting relationship between the parties, already difficult, became more fraught.  I accept however that Mr F was never disinterested in pursuing contact with his daughter.  To the contrary, he was anxious to see her.  Unfortunately, the parties themselves did not have any facility to resolve the impasse between them.  To a certain extent the system failed.

1. This state of affairs was the catalyst to Mr F bringing contravention proceedings on 12 November 2004.  They were listed for hearing on 21 December 2004.  By this time, Mr F had briefly arranged other legal representation.  The contravention application was adjourned to early in the New Year, in the hope, that it could be resolved at the same time as the hearing of the parties’ other applications.  It was also anticipated that the family report would be shortly released, as Mr R had interviewed the parties in the preceding October.  At this stage, the final hearing was scheduled for 10 February 2005.  Unfortunately, this proved to be unduly optimistic.

2. The family report was released to the parties in early January 2005.  Mr F was unable to continue to retain a solicitor.  He was refused legal aid, a matter about which he continues to be aggrieved.  The hearing could not be dealt with on 10 February 2005 due to the pressure of other court business and the fact that Mr F was seeking to review the decision of the L A C. 

3. As it was apparent to me that this was a difficult case; that it was unlikely that Mr F would be legally represented; and Mr F had made serious allegations regarding the potential for M C to suffer neglect whilst in Ms P’s care; I determined that it was appropriate that M C be separately represented in these proceedings.  I also continued to hold the view that it was appropriate for the contravention proceedings, which essentially dealt with the Mother’s alleged failure to provide M C for contact in the latter part of 2004, should be heard at the same time as the parties’ respective application for final orders.  These were fixed for hearing on 16 and 17 June 2005. 

4. In the meantime, there arose the question of which contact should occur between M C and Mr F in the interim.  These proceedings were bitterly contested.  It was Mr F position that the court should immediately return to the earlier consent orders of 25 May 2004.  On the other hand, it was Ms P’s position, due to Mr R’s recommendations and the prolonged interruption in contact, that the court should proceed cautiously and any such contact should be supervised.

5. I was persuaded by the submissions made on the mother’s behalf.  As a result, on 10 February 2005, I made the following orders;

   “That Order 2 and 3 of the Orders of 25 May 2004 be suspended.

   That the father have supervised contact to the said child each Tuesday from 10.00am until 12 noon and each Wednesday from 1.00pm and 3.00pm at C with the contact to begin on 15 February 2005.”

6. This supervised contact has not been without its own difficulties.  The first such period of supervised contact was scheduled to commence on 15 February 2005.  Mr F’s position is that M C was presented for contact “in a very filthy and smelly condition in a highly agitated and distressed state of emotions.”

7. More importantly, Mr F observed a number of sores and scars on M C’s legs and around her groin and genitalia.  These sores caused Mr F a great deal of distress.  He reported his concerns to the D of F and C’s S, the N T G department charged with the statutory responsibility of protecting children from abuse and neglect in the N T.

8. For obvious reasons, Mr F wished to have the child medically examined by a doctor of his nomination.  He wanted to be able to take the child away from C for this to occur.  His family doctor is Dr C W.  Mr F has been consulting Dr C W for many years and trusts his professional opinion. 

9. The father’s notification was made to FACS on 2 March 2005.  On that day, coincidently it seems, Ms P herself took M C to be medially examined at the D D H S in D.  The D D H S is administered by and for Indigenous people.  Dr J K examined M C and formed the opinion that the sores on her abdomen and leg were consistent with impetigo and were not due to any non-accidental injury.  Dr K prescribed appropriate mediation for the treatment of the impetigo.

10. As a result of the matters raised by Mr F, officer of FACS arranged for M C to be medically examined by Dr P B, a specialist paediatrician at the R D H.  Dr B wrote a report to FACS as a result of his examination of M C on 7 March 2005.  His report was in the following terms:

    “I was asked by F & C’s S to review M C with her mother on 7 March 2005.  This was the second time the child’s father who is separated from the mother had sought a medical opinion about a series of sores predominantly on the inner thigh of M C but also on her feet and lower abdominal wall.  These today had the typical appearance of healing impetigo. They bore no resemblance to healing cigarette burns nor were they reminiscent of any sexually transmitted disease.  The rest of her examination including genitalia was completely unremarkable. Her developmental examination was appropriate and I had no concerns about this thriving and happy young child.”[5]

    [5] See letter from Dr P B dated 7 March 2005

11. It is clear that Mr F did not accept the validity of the opinions expressed by either Dr K or Dr Bt.  I doubt that he ever will.  He became increasingly resentful of the restrictions placed on him by C and, as he saw it, the obstruction of his entitlement to have M C immediately medically examined by a doctor of his choosing and for appropriate treatment to be prescribed.  He did not have a lawyer acting on his behalf.  He was not however unable to recruit supporters to his cause.  He wished to take his supporters into C to demonstrate to them, in the form of M C, what he believed was unequivocal evidence of Ms P’s neglect of her.  These supporters included Mr E; Ms P, a nurse and child care worker; Mr K, a representative of the L F’s A; and it was hoped, Dr C W himself.

12. The vehemence of Mr F’s wishes to have others come into C with him to view M C, put the workers at C, particularly those charged by the court with supervising Mr F’s contact with M C, into a difficult position.  On at least one occasion, Ms M, a worker at C assisted Mr F in photographing M C.  The significance of these photographs has reverberated through the proceedings ever since. 

13. I have seen the photographs.  They are attached to several of Mr F’s affidavits.  They are large and glossy.  They show an apparently happy and chubby baby, who has a number of unsightly pink scars and sores on her legs, abdomen and around her genitalia.  The child’s genitalia are exposed to the camera by virtue of a person, whose face is not within the photographs, holding open her legs.  I subsequently learned that the person holding open M C’s legs was Ms M, the co-ordinator of C.

14. Ms P finds these photographs deeply distressing and offensive. 

    
    

    I accept that she feels betrayed by Mr F for taking them but more particularly for allowing others to see them.  Whether she also has a cultural objection to the photographs is a matter I have not been able to ascertain.

15. For Mr F’s part, the photographs represent graphic evidence of the substance of his concerns about M C.  I am not qualified to interpret the photographs.  I am not a medical practitioner.  I do however accept that both Dr K and Dr B saw the injuries on M C and were not suspicious about them.  They both believed the cause was an illness, impetigo.

16. I am concerned that others enlisted by Mr F, although not medically qualified, were also able swiftly to come to the conclusion that the injuries on M C were as a result of Ms P’s neglect.  The regular periods of supervised conflict headed towards an inevitable confrontation.

17. The confrontation occurred on 23 March 2005.  Ms M and Mr K have given evidence about this incident from their own individual perspectives.  Although the evidence is not particularly germane to the matters which are subject to the exercise of the court’s discretion in this case, that evidence will be examined at a later stage.  However, at this point, the incident led to the director of C determining that it would suspend Mr F from the use of C’s facilities.  Accordingly, the order for supervised contact became incapable of implementation.  The tensions and suspicions between the parties and their various supporters became more intense. 

18. The matter returned to court on 26 April 2005.  The issue of Mr F’s wish to have M C medically examined by Dr C W had not been resolved.  The issue of contact, in the absence of C’s facilities, was unresolved.  Mr F reiterated his view that M C was at serious risk of harm.  Those representing Ms P strenuously objected to Mr F having unsupervised contact to M C and objected to his wish to have Dr C W examine her.  Ms M indicated that C might reconsider its position if certain conditions were met.  The final hearing of the matter was a comparatively short time away.

19. In these circumstances, I decided that it would be unwarranted to embark on yet another contact regime on the basis of untested evidence only, particularly as the final hearing was looming.  However, in an attempt to dispel some of Mr F’s concerns about M C, I directed that Ms P make an appointment with Dr C W to have the child medically examined.  As a result of this order, Dr C W provided a report dated

    
    

    22 May 2005 in the following terms:

    “I examined M C F DOB 20.12.2003 when she was brought in by her mother Ms P Pi on 11.05.2005.

    She was neatly dressed and clean and appeared well nourished.  She did not seem unhappy and responded quite well.  On examination CVS was normal, RS was normal and so was abdomen on palpation.  ENT examination did not show any abnormality.

    However, the parts of her body that would be covered by nappies had numerous scars which I thought resembled old impetigo scars.  These covered the lower part of her abdomen (4 scars), her left upper thigh anteriorly (3 scars), one the right lip of her vulva, one in the right inguinal region, the right cheek of her buttock (5 scars), left cheek of her buttock (1 scar), upper left thigh posteriorly (3 scars), posterior right which (1 scar) posterior right calf (1 scar).  She has a couple of linear scars of her both her knees which her mother said was due to a fall.  There were no active lesions at the time of examination.  I had the impression because of the number of scars there must have been delays in obtaining treatment for some of the lesions.”[6]

    [6] See letter of Dr G C W dated 22 May 2005.

20. The final hearing of the matter had been scheduled for two days commencing on 16 June 2005.  Regrettably, the two days set aside for the hearing of the matter were not sufficient to complete it.  However, during the hearing, I had the opportunity to hear evidence from both the mother and the father and indeed from Ms MacL, an outreach worker at DAIWS.  At this stage, it became clear to me that Mr F remained vehemently opposed to C and would not consider returning there under any circumstances. 

21. I was anxious that some form of contact be recommenced between M C and her father in the period until the hearing resumed on 27 July 2005.  The difficulties at that time were practical, involving the lack of transport on Ms P’s part and the absence of a neutral place, convenient to both parties, where M C could be exchanged.  Ms MacL indicated her willingness to help.  I was anxious to prevent M C being subject to any further medical investigation.  Because of the mother’s obvious distress in respect of the photographs of M C, I was also anxious to avoid any further intrusive photographs being taken, which would subsequently be used in court proceedings.  For all these reasons, I made the following orders:

    “1.That all previous contact orders in respect of the child M C F-P born 20 December 2003 are discharged.

    2.That the father have contact to the child each Monday, Wednesday and Friday between the hours of 9.00am and 3.30pm commencing 20 June 2005 with the child to be exchanged at the C Police Station at the beginning and end of each contact period.

    3.That neither party denigrate or abuse the other in the other’s presence of in the presence or hearing of the child.

    4.That the father be restrained and an injunction issue restraining the father from having the child medically examined without the mother’s written permission or in the case of serious medical emergency.

    5.That neither party remove the child from within an area of 30 kilometres of the D Post Office.

    6.That the father be restrained and an injunction issue restraining him from consuming alcohol during any period of contact or for 6 hours prior to any period of contact.”[7]

    [7] See orders 1-6 of the orders made 17 June 2005.

The evidence

1. Mr F relied on the following affidavits of evidence:

   i)Five affidavits of himself filed on 22 June 2004; 12 November 2004 (this was his affidavit in support of the contravention proceedings); 26 April 2005; and two affidavits filed on 18 May 2005.

   ii)An affidavit of J M A filed 12 November 2004;

   iii)An affidavit of K J P filed 12 November 2004;

   iv)An affidavit of P E filed 23 November 2004;

   v)An affidavit of L V G filed 17 May 2005;

   vi)An affidavit of R K filed 18 May 2005;

   vii)An affidavit of Dr G C W filed 27 May 2005.

   Ms P relied on the following affidavits of evidence filed on her behalf:

   i)An affidavit of herself filed 14 June 2005;

   ii)An affidavit of A J M filed 9 June 2005;

   iii)An affidavit of S L MacL filed 14 June 2005.

   Ms M relied on the following affidavit:

   i)An affidavit of P T filed 9 June 2005.

   Mr R, the writer of the family report was required to attend court for cross-examination by all of the parties on 27 July 2005.  His family report dated 21 December 2004 was tendered into evidence.

2. In these reasons for judgment, findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of each of the witnesses concerned.  In what follows, statements of fact constitute findings of fact. 

a)    Mr F

1. Mr F was at a significant disadvantage in these proceedings.  He was not legally represented.  English is not his first language.  The court arranged for him to have access to a S speaking interpreter.  This interpreter could not be present in D for the hearing.  Accordingly, she assisted Mr F via the telephone.  Needless to say, this was not the best way for an interpreter to assist a witness.  However, I am satisfied that Mr F has a reasonable understanding of English.  He has lived in this country for twenty nine years.  I am satisfied that he understood the issues before the court.  I am also satisfied that he cares about his daughter deeply and is convinced of the righteousness of the position he has adopted in these proceedings.

2. The father presented as a besieged individual, who was doggedly fighting a lone campaign against overwhelming odds.  He remains convinced of the righteousness of his position and believes the authorities and Ms P are conspiring against him.  His view of Ms P is entirely negative.  He can see no good in her whatsoever.  I suspect that he holds similar views about many other Indigenous people.  In his affidavit material, he describes Ms P as being variously a drunkard; promiscuous; a problem gambler; and of being itinerant.  At a visceral level, I suspect that he believes that Ms P is incapable of providing an appropriate level of care for M C.  His attitude towards her is essentially paternalistic. 

3. Apart from his assertion of the fact, there is little independent evidence to support Mr F’s allegations regarding Ms P’s personal failings.  He has not hesitation in using the most inflammatory and hurtful evidence he can obtain against Ms P.

4. It is Mr F’s position that, during the relationship between the parties, Ms P was frequently violent towards him, assaulting him with her fists and whatever other implements she could lay her hands upon.  However, he was too ashamed and loving towards Ms P to report these matters to the police.  He did however regularly receive treatment from Dr C W, who documented his complaints. 

5. In his affidavit material, Mr F deposed as follows:

   “This domestic and socially unacceptable behaviour by P by way of drunkenness, shouting and fighting me and others caused our eviction from our previous two addresses.  I have never attacked P and only used sufficient effort to protect myself and our child from P’s aggressive and uncontrollable violence.  My injured back was constantly placed at severe risk and caused severe pain in all of these often very strenuous and violent attacks by P.

   P knew “the system” well and converted her attacks upon me and consequent struggles between us into vexatious allegations to such as police, women’s refuges, solicitors and courts, that I was the perpetrator.  I found that defence of such allegations by women in such an environment to be hopeless in having the truth of my innocence prevail.”[8]

   [8] See Mr F’s affidavit of evidence filed 12 November 2004 at page 3

6. He is also critical of DAIWS for siding with Ms P.  He is critical of his former solicitor for failing to follow his instructions.  He alleges that Ms P infected him with syphilis and as a result he is fearful that M C will become “cross infected and psychologically harmed from her mother’s less than hygienic and itinerant lifestyle.”  He categorises the mother’s lifestyle as being “totally unacceptable”.  Overall, he presented as an excitable and somewhat querulous individual.

7. His assertion that Ms P knows “the system” and can manipulate it to her own advantage has something of the quality of a self-fulfilling prophecy.  I fear that if Mr F is not successful in these proceedings, he will believe it is because of the bias of the system against him and this will inevitably add grist to the mill of his campaign against Ms P and those who assist her.

8. I am not in a position to make findings about how Mr F became infected with syphilis.  Ms P denies that she was consistently violent towards Mr F during their relationship.  To the contrary, it is her position that he frequently punched and abused her.  I suspect that both parties behaved inappropriately at times and their relationship was a turbulent one.  Undoubtedly it is the case that Ms P often sought the assistance of DAIWS and another refuge in D administered by the S A.

9. There is no doubt that the interim contact orders of 25 May 2004 were not successful.  Both parties blame the other for this.  Mr F concedes that Ms P contacted him and asked for the arrangements to be changed.  It is also clear that he went to DAIWS on a number of occasions.  In his words, “my contact with my daughter then began to fail in silence on a regular basis as set out above.”[9]

   [9] See Mr F’s affidavit of evidence filed 12 November 2004 at page 9

10. One of Mr F’s pressing concerns about Ms P is his fear that she will informally allow M C to be adopted by one or other of her T relatives.  He is fearful that she will decide to follow such a course in order to spite him. 

11. Mr F has lived in his unit at P D, N for some time.  I accept that the unit provides comfortable and appropriate accommodation for M C. 

    
    

    I also have no doubt that Mr F is capable of meeting M C’s physical and nutritional needs.  To her credit, Ms P concedes this fact and acknowledges that Mr F is a loving father.  In contrast, Mr F is not able to make any similar concession in respect of any positive attributes of Ms P.

12. Mr F continues to be greatly concerned at M C’s condition in February of this year, when contact between him and M C recommenced at Centacare.  In spite of the medical reports of Dr K, Dr B and indeed of his own doctor, Dr C W, he remains convinced that M C is not thriving in Ms P’s care.  I am concerned that the vehemence of Mr F’s feelings that Ms P is an inappropriate custodian for M C rob him of objectivity in regards to the matter.  When comparing the credibility of Mr F with that of Ms P, it is my view that Ms P is, on balance, more likely to be a reliable witness.

13. Mr F is aggrieved that FACS has failed to act on his notifications to it.  He asserts that both Dr K and Dr B had not been properly briefed with Ms P’s history.  Presumably, he is the only person qualified to provide that history.

1. Mr F is also aggrieved at what occurred at C immediately before the management of C elected to withdraw its services from him.  It is his position that workers at C were well aware that M C had been presented in an unkempt manner and failed to report the matter to the appropriate authorities as was statutorily required of them.  Again, he accuses the workers at C of being part of “the system”.[10]

   [10] See Mr F’s affidavit of evidence filed 18 May 2005 at paragraph 9

2. It is clear that Mr F wished to take several individuals into C in order that they might examine M C.  None of these people were related to the child concerned.  In my view, a reasonable person would have realised that such actions were likely to be dimly received by C and likely to lead to some level of disputation.  Mr F does not seem to have had this view.  I am concerned that his behaviour demonstrates that he is more fixed on pursuing Ms P for her perceived failings than of having contact with M C.  Certainly, he gave no consideration as to the possible adverse consequences of his actions on M C.  Regrettably, it seems that he is also blind to any innocent explanation for any upset or illness concerning M C.  Rather he is quick to enlist other individuals to his cause, who have themselves a particular axe to grind.

b)     Mr E

1. Mr E is fifty four years of age.  He has known Mr F since 1985 and the two are close friends.  He shares Mr F’s negative view of Ms P.  He is strongly supportive of Mr F’s application for the residence of M C.  In this regard, I did not find anything particularly exceptional in Mr E’s evidence.  I suspect, like Mr F himself, Mr E’s evidence lacks objectivity and is strongly influenced by his loyalty to Mr F.

2. Mr F sought leave to adduce additional evidence from Mr E during the hearing before me.  I gave him this leave.  This evidence was that Mr E had been approached by Ms P at the D C in the early hours of one morning.  Ms P reputedly told him that she wanted to “make arrangements to give the baby” to Mr F because he was a good father.  It was Mr E’s understanding that Ms P was going through the current court proceedings because of pressure from her lawyers. 

3. As a result of this conversation, on Sunday 12 June 2005, he attended at Ms P’s home and asked her to accompany him to the police station where she could sign a document to this effect in the presence of a police officer.  The document was in the form of an affidavit.  It read as follows:

   “I want M C to live with her father J F and for me to have her sometimes.  He is a good housekeeper and father.

   I want the Federal Magistrates Court to make orders to this effect.

   I state this freely and in my full awareness.

   The signing witness has read this affidavit back to me before me signing it.

   I say here and sign this because my solicitors do not want M C to live with J.”[11]

   [11] This document was tendered as Exhibit “B”. It was in the form of an affidavit, which was headed Family Law Act 1975.

4. Ms P did not execute the affidavit, although she did accompany Mr E to the police station.  It is her position that she accompanied Mr E out of politeness.  She said she was not sure about the import of the paper she was asked to sign by Mr E.  As a result, she asked the police officer behind the counter at the police station to explain it to her.  Once it was explained to her she said she “stopped and thought” and came to the conclusion she did not wish to sign the paper.

5. Ms P acknowledges that she did run into Mr E one night at the casino.  She does not know Mr E very well.  It was her evidence that Mr E confronted her and told that she had to let Mr F have the baby.  She denies that she made any indication that she wished to transfer M C’s care to Mr F.  In regards to these particular incidents, I prefer Ms P’s evidence to that of Mr E’s.  I have little difficulty in reaching the conclusion that the affidavit which Mr E took to Ms P had been prepared on behalf of Mr F. 

6. I find the episode illustrative but perhaps not for the reason Mr F would want.  In my view, it represents a rather lame attempt to dupe Ms P, who in many ways is not a worldly person, particularly in respect of the legal system.  For her to go to the police station with Mr E is not the action of a person intimately acquainted with the workings of “the system”.  To the contrary, it is the action of a polite and trusting person.  When the document in question was explained to her by an impartial person, she declined to sign it.  I suspect Mr F believed that Ms P would be easily tricked by it and M C’s future determined by Ms P’s signature on the paper.  The incident demonstrates Mr F’s essentially paternalistic attitude to Ms P.  In essence she is easily manipulated and has no real love for her daughter. 

c)      Ms P

1. Ms P was a pleasant and honest witness.  Currently she is the coordinator of the N Markets.  She is qualified as a registered nurse but has not practiced as such for approximately twenty five years.  In the past, she has worked as a child care worker.  She has known the parties in these proceedings since about December of 2003.  She does not describe herself as being a close friend of Mr F, rather she has run into him from time to time at the N Markets.  All in all, Ms P estimates she has seen M C about a dozen times.  She has not seen her recently.  She believes that she saw M C with Mr F at Christmas time.  In this regard, she is mistaken. 

2. She describes being “impressed that [Ms P] had poor infant care skills.”  She asserts that since the parties separated M C has appeared to her to be unkempt and unwell.  In her evidence, she described the child as having a runny nose and having obviously suffered a loss of weight.

3. Ms P has some medical training but has not utilised those skills for many years.  In my view, her involvement with M C has been at best cursory.  She has never closely examined the child.  She has never visited the mother’s home.  I suspect that she has been strongly influenced by the somewhat inflammatory circumstances surrounding the parties in this matter.  Overall, I did not find her evidence particularly helpful.

d)     Mr A

1. Mr A is a t d.  He is of P decent.  He has been a friend of Mr F for many years and was a regular visitor to his home whilst he was involved with Ms P.  In his affidavit, he asserts that Ms P was the instigator of many attacks upon Mr F.  In cross-examination, he conceded that he had never himself witnessed any such altercations.  Rather, he had observed some injuries on Mr F and concluded that Ms P must have inflicted them. 

2. Mr A is not well disposed towards Ms P.  In his view she has a gambling problem.  It transpires that he has seen Ms P at the casino whilst he has been waiting in his taxi on the rank.  Accordingly, he conceded that he was not in a position to give any direct evidence of Ms P’s gambling habits.

3. Under cross-examination, he conceded that he had seen Ms P and M C about three weeks ago at the K shops.  He indicated that he had patted the baby and she looked healthy and happy to him.  This concession, perhaps unwillingly given, caused me to have some scepticism about the general thrust of Mr A’s evidence.

e)      Mr K

1. Mr K is involved with the L F Association of the N T.  He described his interest in this matter as follows:

   “I have decided to accept Mr F request to give evidence in this matter.  For a number of reasons of repetitive systemic failings that have been occurring in the family law pathways in The N T.  This honourable court must become better informed of dynamics affecting the course of citizens justice in these family matters that ore (sic) occurring beyond the courtroom and enter it to affect the case outcomes.  Some impact severely upon the case of Mr F. ”[12]

   [12] See Mr K’s affidavit of 18 May 2005 at paragraph 1

2. Most of Mr K’s long affidavit had no relevance in these proceedings being best described as a doctrinaire diatribe about matters which are of great concern to Mr K.  Mr K believes Mr F has been discriminated against because of his sex.  I have no reason to doubt the sincerity of his views.  However it is not my function to investigate these matters. 

3. Mr K was undoubtedly present outside the perimeter fence of C on the occasion which precipitated Mr F being suspended from using its facilities to have contact with M C.  It is not the purpose of this court hearing to ascertain the rights and wrongs of the various persons involved in this incident.  Mr K and Mr F have apparently made complaints to various authorities in regards to this incident and some other matters in respect of which they believe they have been failed, notably by the L A C, the C A G’s D and FACS.  Again, it is not my function to comment on these matters.

4. In respect of the incident at C I propose only to remark that in my view, the matter could have been better handled by all concerned.  Mr K does not know Ms M personally.  She apparently knows of Mr K, whose reputation seems to have preceded him.  I accept that Mr K did not specifically wish to be provocative but that was the effect of his being outside C at the time, particularly given that it appeared likely Mr F wanted to show him M C through the fence.  

5. Undoubtedly Ms M over reacted to Mr K’s presence, almost certainly influenced by what she had heard about him from others.  The incident concerns me because I am fearful that the supervised contact on this occasion, perhaps unwittingly, was allowed to become a field of combat between people who had at best an ideological interest in the case but no personal interest.  This is not the purpose of contact.  I am worried that a similar incident may occur in future with more serious ramifications for M C.  In my view, the whole incident was regrettable in the extreme.

f)      Ms G

1. Ms G is an Indigenous person who, in her affidavit, indicates she had a “lasting friendship” with Ms P “until now”.  It seems that Ms G is not well disposed to her previous friend.  However Ms G could not be produced for cross-examination.  In such circumstances, I do not believe her affidavit can be given any weight.

g)     Ms P

1. Ms P was a softly spoken witness, who seemed somewhat overawed by the proceedings.  The one issue about which she became animated was that concerned with the photographs of M C.  She became visibly upset and angry, when the issue of the photographs was raised.  She said openly to Mr F that she thought it was “disgraceful” what had been done with the photographs and expressed her view that it had been done to hurt her. 

2. Ms P is much better disposed towards Mr F than he is towards her.  In her evidence, she indicated that she would like “to share the little girl” with Mr F but he had “disappointed” her.  She acknowledged that it was important that M C had a father and got to know him through regular periods of contact.  She also indicated that she accepted that M C was well looked after when she was with Mr F and that he undoubtedly loved her. 

3. Her only concerns about Mr F were the fact that she believed he drank heavily at times and in the company of people she did not know.  She was concerned about these strangers being around M C as “anything can happen when he [Mr F] drinks.  He drinks a lot…”.

4. Although Ms P acknowledged the importance of contact, she also expressed concerns about some of Mr F’s previous actions against her.  She was particularly fearful about the prospect of him taking more photographs of M C and showing them around.  The fact that M C was naked when the photographs were taken seemed to particularly upset her.  In Ms P’s words, in future, she wanted Mr F “to do the right thing…not talk nasty or rubbish on me”.

5. Mr F is critical of Ms P for not having secure accommodation for herself and M C.  At present, she is living in a two bedroom unit, which she rents from the N T H C.  I accept that this provides suitable accommodation for M C.  Some of Ms P’s relatives have stayed with her at the unit from time to time.  In particular, Ms P sees her mother regularly.  Ms P speaks T at home.  She appears to be fluent in English. 

6. It is Ms P’s position that M C is healthy and progressing developmentally in a normal way.  She is currently eating solid food.  M C’s regular doctor is at the D D M C.  Ms P consulted her about M C’s impetigo.  She was prescribed some ointment for this and some special soap to bathe her.  Ms P deposed that she did what she was directed to do by the doctor and M C’s impetigo cleared up. 

7. Ms P denies that she drinks alcohol or smokes.  She concedes that she used to enjoy visiting the casino and playing the poker machines but asserts that she has done so only occasionally since M C was born.

8. In her affidavit material, Ms P deposes that, after the interim contact orders were made on 25 May 2004, she had difficulty getting from DAIWS to N.  It is her evidence that she had not thought about the cost of contact until after the orders were made.  It is also her position that, in early June, when contact occurred, Mr F was abusive towards her and she believed that he had been drinking.  These factors caused her to apply for a domestic violence restraining order against Mr F.  However the order which was subsequently made was expressed to be subject to any order made by this court in respect of contact.

9. It was also Ms P’s understanding that her solicitor had arranged for the 25 May 2005 orders to be varied so that Mr F would come to DAIWS to collect M C.  Ms P was mistaken in this belief.  It is Ms P’s evidence that Mr F did not attend at DAIWS on 13, 15, 17 and 19 July 2004 and did not advise her of this. 

10. This period coincided with the arrival of the letter indicating Mr F wished her to undergo parentage testing in respect of M C.  Ms P agreed to the testing.  Ms P left DAIWS in October of 2004 and moved to her present address in K.  She has lived in K ever since.

11. In her affidavit material, Ms P said as follows:

    “I have never denied contact, the father simply did not turn up or follow any arrangements which had been agreed.  In early September I suggested that change overs be at C.  No response to that suggestion was ever received.”[13]

    In her oral evidence, Ms P reiterated that she had not stopped contact in July but rather her apprehension was that Mr F had not sought contact.  She believed that this might have had something to do with him wanting parentage testing.

    [13] See Ms P’s affidavit of evidence filed 14 June 2005 at paragraph 21

12. I have no reason to doubt Ms P’s evidence from her presentation in court.  She seemed to me to be an honest witness.  I accept her evidence.  Where there is a conflict between her evidence and Mr F’s evidence, I prefer Ms P’s evidence.

h)     Ms MacL

1. Ms MacL was an impressive witness.  She has been an outreach worker at DAIWS for approximately fourteen years.  In that period, she has seen very many Indigenous mothers and their children.  She has known Ms P since early 2003.  In her affidavit Ms MacL deposes as follows:

   “I have watched the mother with the child M C.  P always did the mothering, I never had to tell her how to do anything for the child as we often have to tell mothers who use our service.”[14]

   In her oral evidence, Ms MacL confirmed that she had never had any concerns about Ms P’s parenting abilities or about M C’s health generally.  I have no reason to disbelieve Ms MacL, who obviously has extensive experience in respect of parenting issues in all manner of difficult circumstances.

   [14] See Ms MacL’s affidavit filed 14 June 2005 at paragraph 4

2. Ms MacL describes herself as providing moral and other support for Ms P during the time she was staying at DAIWS.  These services apparently included liaising with Mr F, whom she found to be somewhat difficult to deal with.  It is her evidence that Mr F was frequently critical about M C’s appearance, for no apparent reason and made derogatory comments about Ms P to her.  Ms MacL also smelt alcohol on Mr F’s breath from time to time.  I accept Ms MacL’s evidence in this regard.

i)     Ms M

1. Ms M is the co-ordinator of C.  She has worked at C since 2000.  The supervision order made by the court in February put Ms M in an onerous position.  She became the “meat in the sandwich” as Mr F became increasingly concerned about M C’s impetigo and his belief that no one was taking the issue seriously.  It seems Ms M wanted to defuse the situation by allowing Mr F to have M C medically examined by Dr C W.  The solicitors for Ms P would not agree.  There was nothing Ms M could do about this.  She was also placed in the difficult position of Mr F bringing his supporters to C from time to time. 

2. The notes of C reveal that Mr F bathed M C on several occasions during contact visits.  The issue of the impetigo and other suspected injuries loom large in the notes.  There is nothing to indicate that Ms M did not act professionally during the contact visits.

3. Ms M had not met Mr K previously.  She had however heard about him and presumably knew what he looked like.  His appearance at C on

   
   

   23 March 2005 appears to have filled her with some consternation. 

   
   

   I can understand why this was so.  Mr K was entitled to stand outside the perimeter fence of C.  Obviously Ms M was concerned at the prospect of M C being presented to Mr K for his inspection through the fence.  I can understand why she would think this was an abuse of C’s protocols.  Even if it was not, it was undignified and clearly not what the court had envisaged when the supervised contact order was made.  Unfortunately things got out of hand.  As I have already observed, matters could have been handled much better from the perspective of all who were involved.  It had the potential to be greatly traumatic to M C. 

j)     Ms T

1. Ms T is the acting team leader of the intervention team of FACS.  She deposes that Mr F’s notification of neglect in respect of M C was investigated by FACS and found to be unsubstantiated.  Mr F chose not to call her for cross-examination.

k)    The family report and the evidence of Mr R

1. The family report in this matter was prepared by Mr Stephen R.  Mr R is a psychologist and an experienced family and child counsellor.  He has been employed by the Family Court for approximately fifteen years, during which time he has written literally hundreds of family reports.  Of equal importance, prior to that time, he was engaged in child protection work in both Q and N S W for about ten years.  Accordingly, he is experienced in assessing the nature of relationships between parents and their children and also in assessing issues to do with the protection of children.  His report and evidence were thorough and well considered.  I accept his evidence. 

2. The major criticism of Mr R’s report is that he has not had any involvement with the family since October of 2004.  He did however interview both parties and observe each of them with M C.  In addition, he interviewed members of Ms P’s family, namely Mr R L and Mr J and Ms C K.  Ms K is Ms P’s maternal aunt.  However, Mr and Ms K raised Ms P from the age of five years and she regards them as her parents.  Mr K assisted Mr F with his interviews with Mr R. 

3. It is, I think, an important aspect of Mr R’s report that he was able to speak to Mr L and to Mr and Ms K.  These were important people, who have obviously known Ms P for many years and have direct knowledge of the social milieu in which she moves.  In addition, it is a strong plank of Mr F’s case that Ms P’s older child A was neglected by Ms P, which in his submission lends strength to his assertion that she is an incompetent parent.

4. In the report, Mr R indicated that Mr L did indeed become involved with A because Ms P had difficulty in caring for him.  This had resulted in A becoming “malnourished”.  These are obviously matters for concern.

5. It was Mr L’s view that Ms P had significantly matured, as a parent, since A had come into his care.  He had no concerns about her abilities to adequately parent M C, whom he had observed to be a healthy and clean child.  However, he also indicated that he had not seen a great deal of M C. 

1. Mr and Ms K were interviewed at N College, where they are studying theology.  They are supportive of their daughter and believe she is doing a good job in caring for M C.  It is their position that Ms P does not drink or smoke.  Of some importance is the fact that they reported to Mr R that Mr F “had attempted to exclude them from contact with M C” and had told them “not to touch my daughter”.  They reported that this made them feel “shame” and that they “wanted to be involved in the life of their granddaughter.”[15]

   [15] See family report at paragraph 17

2. Mr R was well aware of the dynamic between the parties.  Mr F viewing Ms P as lazy, uncaring, drunken, unstable and slovenly.  He alleged that Ms P lived either in the “long grass” or in “women’s shelters”.  On the other hand, it was Ms P’s position that Mr F himself had significant problems with drinking, had been violent towards her during the relationship, was verbally derogatory about her and Indigenous people generally and was unsupportive of M C maintaining ties with her maternal family.

3. Mr R was not in a position to verify the truth or otherwise of these various assertions.  However, when he observed the child, he noted that she appeared to be healthy and well cared for.  I appreciate that Mr R is not a medical practitioner.  However, he has had extensive experience of working with children, particularly in the field of child protection.  In his evidence to me, he confirmed that he had come across neglected or abused children many times and believed that he was adept at picking up on the indicia of neglect or malnourishment.

4. In the formal aspects of his report, Mr R wrote as follows:

   “M C was seen at the time of the report interviews.  She is healthy, alert child who appears to be well cared for and developing appropriately for her age.  Ms P’s mother describes her as a healthy child who is easy to care for.  The mother reported that M C has regular check-ups at the Health Clinic and that she is progressing and developing well.

   The mother was observed with M C.  She was attentive and responsive to her needs and appeared comfortable in mothering her daughter.

   The mother agreed to the father seeing M C at the time of interview.  He had not seen the child for four months at this time.  Mr F became very emotional on seeing M C.  He removed her from her pram where she had been sleeping and cuddled her closely.  M C woke but showed no distress or discomfort on being held by her father.  Mr F queried what was wrong with M C’s mouth, and seemed to believe something was physically wrong with her.  He seemed concerned that her mouth was “stiff” and not moving though there appeared to be nothing amiss with the child.  He made no comment on the child’s development or growth or her presentation otherwise.”[16]

   [16] See family report at paragraphs 26-28

5. I was struck by the fact that Mr F, in contrast to Mr R, appeared to note something amiss with Mary C’s physical presentation.  It strengthens my conviction that, because of the extreme level of his suspicion for the mother, he is swift to believe that anything which he does not understand about M C is due to the mother’s neglect or omission.  In his presentation to Mr R, Mr F seems to have emphasised his love for M C and the material things he could provide for her. 

6. Mr R was of the opinion that Mr F and Ms P had very different views about and styles of parenting.  This stemmed from the fact that their priorities, lifestyles, belief systems and backgrounds were fundamentally different.  This resulted in them having almost no sense of connection with one another as parents through any sense of common experience.  These reflections led him to accept the proposition that there was a “chasm” between Mr F and Ms P at the present time.

7. Mr R thought it highly unlikely and perhaps impossible for the parties to change their views about parenting or lifestyle so that they became more complimentary with one another.  Ideally, he wanted Ms P and Mr F to be able to work towards a situation whereby they could agree to respect their various differences and do their best to work cooperatively together for M C.  This was his ideal but Mr R conceded that it was not easy to see a positive outcome in this case.

8. In reaching this pessimistic conclusion, Mr R indicated that he did not doubt the love and competency of the parenting of both parties concerned.  However he was concerned at the prospect of the parties, particularly Mr F, using every possible interaction with the other to undermine the relationship he or she had with M C.  At a fundamental level, Mr R did not believe the parties were capable of being respectful of one another.  The impression I have is that Mr R thought that this was a greater issue so far as Mr F was concerned.  Overall, Mr R believed that the extreme level of conflict between the parties had the potential to cause serious problems so far as M C’s long term emotional development and stability were concerned.

9. Mr R was asked to consider the implications of the high conflict between the parties continuing indefinitely, in the context of M C’s cultural background.  Mr R acknowledged that M C shared a S/I (T) background.  However, in the environment where M C was likely to grow up, namely D, a town with a large I population, he considered it highly likely that M C would identify herself as an I person.  Certainly, he thought that most people she came across in D were likely to consider her to be of I extraction.

10. Mr R believed that the continuation of hostility between the parties could only be detrimental for M C.  In Mr R’s view, if it was the case that Mr F was negatively disposed towards Ms P particularly and I people generally, this might have two possible consequences.  Either, it might provoke a very hostile reaction to him from M C, as she grew older or possibly it might seriously undermine her sense of identity and self worth, as a person who identified herself as an I person or a person who was identified as such by others.  Obviously, neither outcome was particularly desirable.

11. Mr R remained secure in his view that the likely best option for M C, in this difficult situation, was for her to continue to live with Ms P.  He reached this view because the evidence was clear that Ms P had provided the vast majority of care for M C up to this stage and the child was securely ensconced in that care.  On the evidence, which he had observed, there was nothing to indicate other than that Ms P’s parenting had had a positive influence on M C and accordingly it was not possible to justify a change of care on psychological grounds. 

12. However, because of the extreme level of conflict between the parties and because this conflict had the potential to negatively impact upon M C, Mr R recommended that the court adopt a cautious attitude towards contact between Mr F and M C for the foreseeable future.  He was particularly concerned at the possibility of Mr F using periods of contact as an opportunity to gather evidence against Ms P to further his contention that she was an incompetent parent.  He believed that such a situation would be an untenable one as it would inevitably perpetuate the already high levels of conflict between the parties.

13. Accordingly, he urged the court to adopt whatever means it considered were likely to minimise the possibility of conflict between the parties.  These included restraints on the child being unnecessarily medically examined or explicit photographs being taken.  He drew back from any suggestion that Mr F be prevented from making notifications to FACS, as obviously it was not beyond the bounds of possibility that in future Mr F might have genuine cause for concern about M C. 

14. Mr R did not have any strong views about the current level of contact between Mr F and M C, namely contact during the day on three occasions each week.  He thought that this was appropriate, providing it was going well and there was a decline in the level of hostility between the parties.  In his view, it was an essential prerequisite for the extension of any contact, particularly to overnight contact, that daytime contact had been successful and the tensions between the parties reduced to a manageable level.  He doubted the benefit of contact to M C if every interaction between the parties was infused with tension.

15. Perhaps it is needless to say but Mr R’s unequivocal opinion was that a shared care arrangement between Mr F and Ms P was an untenable situation because of the absence of any facility on their part to trust one another and communicate effectively together. 

16. In a formal sense, these matters led Mr R to the following assessment and recommendations:

    “The current dispute is marked by competing allegations concerning the capacity of each parent to care for M C.  The father is highly critical of the mother and has the support of a number of individuals to support his claim.  He views the mother as an unstable, violent individual who is unable to adequately care for his daughter.  That is, he attributes to her characteristics that are more a reflection of his own needs as a parent, than anything that can be reasonably asserted on the basis of the child’s developmental level.  He has however, had no contact with the child since July of this year, and it is apparent that the mother has been the primary care-giver.

    The mother is a T woman who seeks to raise her daughter as a member of her A family.  She has the support of her extended family in D and has a close relationship with her own parents.  She denies the allegations levied by the father and her version of events is supported by her parents, Mr L and staff of the D A and I W’s R.

    There are conflicting reports regarding the capacity of the mother to care for the child.  Mr F has presented the Court with a number of affidavits that are critical of the mother’s care of M C and highly supportive of his own capacity to care for the child.  The mother also has referred me to several individuals who have spoken positively regarding her parenting capacity and disagreed with the claims made by the father.  My own observation of M C at the time of interview was of a healthy, thriving child who had experienced a good level of care.

    It is difficult to know the truth of the claims that have been made by both parents and as in many cases one suspects the truth lies somewhere in the middle of the competing claims.

    If it is the decision of the Court to grant residence of M C to Mr F then M C will be required to separate from her mother and make the transition to the care of the father.  Ms P has been the child’s primary carer and M C is firmly attached to her mother.  She has had little contact with her father and while I do not doubt the love that Mr F has for his daughter he has not played a major role in her care.  I am also of the opinion that it is unlikely that Mr F would be supportive of the mother’s contact with M C.  His reported efforts to exclude the mother’s family from contact with M C, if true, suggests that he would not be supportive of the child’s connection to her Aboriginal culture.  Although Mr F states that he wants his daughter to grow up with knowledge of both cultures I suspect he favours M C being raised as part of his own S culture rather than of the mother’s I culture.

    If it is the decision of the Court that M C continue to reside with the mother then I believe M C will continue to experience the quality of care she has received while residing in the mother’s care.  My own observation of the mother and M C leads me to believe that the mother is able to provide at least an acceptable level of care for M C.  Apart from the allegations levied by the father, and the affidavits he has provided from others, I have no information to suggest that the mother is less than capable of parenting M C.  Although the affidavit material is of concern it remains a matter of evidence before the Court as to the weight that this material has in the determination of this matter.

    Ms P has stated that she is willing for the father to have contact with M C and has stated that day contact only at this stage is her preferred option.  Generally, I believe that if contact arrangements are appropriately structured then contact can work to the benefit of M C.  It is noted that the mother has had considerable difficulty in getting M C to contact hand-over locations in the past as she does not have access to a vehicle.  This will need to be taken into consideration in making workable contact orders.  Contact between the parties should also be minimised at hand-overs due to the potential for further conflict to arise.

    I recommend that M C continue to reside with Ms P.

    I further recommend that the father have day contact with M C at least one day per week and that contact be extended further as the child develops with increasing age.

    I believe that over-night contact should not commence until a stable, workable pattern of day contact has been established, and that over-night contact should not take place until M C is a minimum of three years of age, assuming that day contact has been regular and free of conflict for the parties involved.”[17]

    [17] See family report paragraphs 32-41

The law applicable to parenting orders

1. The applications of both parties concern parenting orders.  They arise in proceedings conducted under Part VII of the Family Law Act.  The principles underlying this object are set out in section 60B(2) of the Act.  These principles include, except where it would be contrary to a child’s best interest, the following:

   i)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   i)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and

   ii)parents share duties and responsibilities concerning the care, welfare and development of their children; and

   iii)parents should agree about the future parenting of their children.

2. The application of these objects is subject to the provisions of section 65E, which regards the best interests of the child or children concerned as being the paramount consideration in the making of a determination concerning the care of children.

3. In deciding the parenting arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in section 68F(2) of the Family Law Act. The various sub-sections contained in section 68F(2) comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed in any orders made by the Court, and in this regard I refer to B and B: Family Law Reform Act.[18] In this case it is the Court’s duty to make relevant findings of fact concerning the cases of each of the parties and then apply each of the relevant sub-sections contained in section 68F(2) to those findings in a common sense and practical way, in order to ensure that the final orders that are made result in a situation that will serve M C’s best interests.

   [18] B and B: Family Law Reform Act (1997) FLC 92-755

4. There is no presumption either in favour of or against a joint parenting arrangement created by the provisions of the Family Law Act.  No one arrangement in respect of the care of children is to be preferred to another.  The aim of the provisions of Part VII of the Act is to create orders that are tailored to the individual circumstances of the child concerned to bring about the situation that is likely to best serve his or her interests.  As the father seeks orders that would see M C living with both her parents on terms of strict equality, it is useful at this point to outline some of the considerations which have been applied to applications regarding shared parenting regimes by other courts in the past.

5. In T & N,[19] Federal Magistrate Ryan summarised the various authorities, both before and after the Family Law Reform Act, to draw up a list of the various matters which had, in the past, been taken as providing useful indicia, as to whether or not a shared parenting regime was appropriate in a particular case.  These matters were as follows:

   [19] T & N [2001] FMCA fam 222 at page 34

   ·The parties’ capacity to communicate on matters relevant to the child’s welfare;

   ·The physical proximity of the two households;

   ·Are the homes sufficiently proximate that the children can maintain their friendship in both homes;

   ·The prior history of caring for the child.  Have the parties demonstrated they can implement a 50/50 living arrangement without undermining the child’s adjustment?

   ·Whether the parties agree or disagree on matters relevant to the child’s day to day life.  For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.

   ·Where they disagree on those matters the likelihood that they would be able to reach a reasonable compromise.

   ·Do they share similar ambitions for the child?  For example, religious adherence, cultural identity and extracurricular activity.

   ·Can they address on a continuing basis the practical considerations that arise when a child lives in two homes?  If the child leaves necessary schoolwork or equipment at the other home will the parents readily rectify the problem?

   ·Whether or not the parties respect the other party as a parent.

   ·The child’s wishes and the factors that influence those wishes;

   ·Where siblings live.

6. These matters as listed by Federal Magistrate Ryan, correspond closely with other matters listed by Schepis & Formica in their article “Joint Custody – Some Practical Aspects.[20]  These matters included mutual trust between the parents concerned; an ability to communicate; an ability to cooperate and compatible parenting value.  The learned authors noted that the break down of a relationship sometimes resulted in the estranged couple mistrusting each other.  To ensure a workable joint care arrangement, it was considered essential that both parents trust one another, as otherwise distrust between the parents could result in conflict and emotional tension that might flow through to the children concerned.  Similarly, incompatible-parenting values between the parties concerned, could also lead to mounting tension and mistrust, to the point where arrangements became detrimental and unworkable.  The learned authors also referred to an unreported case of  Hall & Fordyce, where Kay J observed that:

   “The reality of a child’s life is that save in very exceptional circumstances, equal sharing of time is generally unobtainable because of the geography of the parties or the personality of the parties or the needs of the child.  In most cases it cannot be achieved… I think it is fair to say that the Judges of this Court have not generally embraced the concept of shared parenting in cases where there is any degree of conflict between the parties.”

   [20] J Schepis & L Formica ‘Joint Custody – Some Practical Aspects’ Australian Family Lawyer Volume 6 No 2

7. However, as was pointed out by the Full Court of the Family Court in Bartholomew & Kelly[21], there is no principle that a shared parenting regime should not be imposed if any of these “key elements” are not present. Rather, in order to determine what orders will best address the best interest of M C, it is necessary to turn to the various factors set out in section 68F(2) of the Family Law Act.  These factors are to be applied to the situation as it pertains to the child in a commonsense way, so that whatever orders are ultimately made, they will bring about a situation that is most likely to lead to their best interests being served.

1. I have some concerns that Mr F, because of his essentially negative and somewhat stereotypically view of Ms P, may wish the Indigenous aspects of M C’s identity to be down played, as she grows older.  Inevitably, regardless of what Mr F believes is appropriate, M C will be regarded as an I child in D.  I am concerned about the implication of this for M C’s sense of identity and self-esteem.  These are major factors which militate against any change of residence at this stage or indeed the shared care arrangement as proposed by Mr F as an alternative. 

g)     The need to protect the child from physical or psychological harm caused by abuse or ill treatment, violence or other behaviour

1. I have considered many of these matters under preceding section 68F(2) criteria. I do not believe that the evidence before me is sufficient for me to conclude that Ms P is likely to cause physical harm to M C through any abuse or ill treatment. I accept that she is a loving parent, who would not willingly expose M C to harm. Apart from innuendo and suspicion, there is no concrete evidence to suggest that she has significant drinking and gambling problems.

2. However, undoubtedly the high level of acrimony and suspicion between the parties in their parenting relationship has the capacity to do significant emotional harm to M C as she grows older.  In my estimation, Mr F is the leading agent in driving the dispute.  Continual complaints of neglect will perpetuate the dispute and undermine Ms P’s parenting abilities.  If she considers that every contact visit will be used by Mr F as an opportunity either to denigrate her or collect evidence against her, she is likely to become more and more insecure about such contact.  Her feelings are likely to reverberate with M C, to M C’s detriment.

3. In the case of Grant v Grant[24], Purdy J said as follows:

   “If the Court comes to the conclusion that an access order will have an effect on the custodial parent which will impair to a significant degree the emotional support and for that matter, physical support which the custodial parent can render the child, then the Court must take that into account in assessing whether access is for the benefit of the child.”

   [24] See Grant v Grant (1994) FLC 92-506 at page 81-259

4. It seems to me that the consistent thread running through a number of cases [25]is that the court needs to weigh up the benefits to a child of having contact with one of his or her parents, against the harm that may be done to the care giving capacity of the residence parent arising out of the stress and anxiety that would result in that contact.

   [25] See Russell v Close Unreported Full Court of the Family Court Number 45 of 1992 and Sedgley v Sedgley (1995) FLC 92-623

5. Ms P is clearly fearful that future periods of contact between M C and Mr F will perhaps result in more complaints about her parenting; more notifications to FACS; possibly unnecessary medical examinations; and perhaps more photographs of M C being taken by Mr F, a prospect which obviously causes her great distress.  These are factors which favour a cautious approach to contact, as recommended by Mr R.

6. However, I cannot overlook the provisions of section 60B and, in particular, M C’s entitlement to maintain a relationship with her father and have regular contact with him.  In striking a balance between these principles and Ms P’s understandable concerns about contact, I have reached the conclusion that it is likely to be in M C’s best interests to have contact with Mr F on two occasions each week between 9.00am and 3.30pm.  Tuesdays and Thursdays are the days preferred by Ms P and I can see no reason why these days should not be the ones selected by the court.

7. M C is still of tender years.  Frequent contact of limited duration is usually recommended for babies and toddlers.  In my estimation, the contact I have proposed has some prospect of being successfully implemented by the parties.  It will be sufficient for a relationship to be developed between Mr F and M C.  I also think that such an arrangement has the best prospects of being successful.

i)     Any family violence involving the child or a member of the child’s family

j)     Any family violence order that applies to the child or a member of the child’s family

1. Both parties characterise the other as being violent and controlling during their relationship.  In particular, Mr F has deposed that he only ever defended himself from unprovoked and drunken assaults instigated by Ms P.  It is his position that because of her knowledge of “the system”, Ms P was able to falsely persuade the police and others in positions of authority that he was the perpetrator of assaults upon her.[26]

   [26] See Mr F’s affidavit of evidence filed 12 November 2004 at page 3

2. It is Ms P’s position that Mr F was aggressive towards her throughout their relationship and would often punch or kick her.  These were matters she raised when she applied for a domestic violence order against Mr F on 28 June 2004.  The order was ultimately granted but without any admission of fault on Mr F’s part.  At an earlier stage, on 24 December 2004, Mr F applied for his own domestic violence order against Ms P.  Such an order was granted to him on 5 January 2005.  Ms P consented to the order and presumably no evidence was canvassed.

3. In my view, the relationship between the parties was obviously a turbulent one.  Ms P spent extended periods of time in women’s refuges in D during it.  The relationship between the parties continues to be conflictual.  As such, any interchange between the parties has the potential to ignite. 

4. The parties chose not to explore the issue of fault in respect of their relationship during their respective evidence.  It is Mr F’s position that any assertion by him that he was an innocent victim of family violence at Ms P’s hand is unlikely to be accepted by a court such as this one.  I confess that I find his protestations in this regard somewhat hollow.  However, as the parties did not explore the issue in any detail, I merely observe that I am satisfied that the relationship between the parties was a violent one.  The parties have each obtained domestic violence orders against the other, no doubt in the hope that these orders will provide protection in future.

5. As I have already observed the high level of tension between the parties and its potential to lead to violent behaviour is unacceptable and poses a long term and significant threat to M C’s welfare.  The danger that is represented to young children of violent conduct of this type is not confined to a risk of physical harm to them.  It is generally accepted that it is not appropriate to expose children to any kind of violent behaviour and such exposure may have serious consequences for their long term development.  The issue was discussed by the Full Court of the Family Court in two cases, In the marriage of J D & B G[27] and In the marriage of Patsalou[28].  Such violence or derogatory behaviour does not have to be directed specifically at the children concerned to constitute such an evil.  The behaviour may be potentially harmful for children and their future development by constituting an unacceptable role model on which they base their own future relationships and how they deal with conflict with the use of violence in the future.  Children learn their own future behaviour and how they will deal with difficult situations from what they observe of their parents.  In this regard, a parent who uses violence against another person as a means of resolving a dispute or who is derogatory of another person, especially the other of a child’s parents, is not a suitable role model for children.

k)    Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings

[27] In the marriage of J D & B G (1994) 18 FLR 255

[28] In the marriage of Patsalou (1994) 18 FLR 426

1. Finality is generally preferable in children’s cases.  However, I suspect that Mr F will be dissatisfied with the result of this case and will find it difficult to accept.  As I have already observed, he presents as a person who is fighting a lone cause against great odds.  He is likely to have difficulty in focusing on M C’s needs rather than his own in this regard.  Save for advocating that the parties focus on M C’s best interests, there is little the court can do to ensure that future litigation is contained.  It seems inevitable that there will be hostility between the parties for some time to come and, against such a background, a high probability of further proceedings, whatever orders are made in the proceedings at this stage.

Conclusions

1. I have come to the conclusion that M C’s best interests will be served by her continuing to live with Ms P.  I reach this conclusion because Mr P has provided the vast majority of care for M C up to this stage and there is no cogent evidence to suggest that M C is at any significant risk of harm whilst this arrangement continues.  To the contrary, the evidence of all the medical practitioners, who have been involved in this case, is that M C is healthy and thriving. 

2. Mr F is fixated on establishing that Ms P is an incompetent and neglectful parent.  His negative view of her robs him of objectivity.  His essentially negative view of Ms P has the potential to be emotionally damaging to M C.

3. Up to this stage, for a variety of reasons, Mr F has not been substantially involved in providing care for M C.  In my view, in such circumstances, it would be unwarranted to substantially change arrangements for her care.  The parenting relationship between the parties is fraught with difficulties and suspicions.  This factor, when combined with the different parental aspirations of the parties, makes a shared parenting regime an untenable outcome in this case.

4. In future, I am fearful that Mr F will use every opportunity he has with M C to gather evidence against Ms P to advance his view that she is an inappropriate carer for M C.  Mr F is unlikely to accept the view of any medical practitioner who disagrees with him.  With regret, I must find that in order to de-escalate the conflict between the parties, Ms P alone must have the capacity to make all decisions regarding the medical treatment M C receives, other than in cases of extreme emergency.  It is also necessary for me to make orders that emphasise to the parties the importance of restraining themselves from making derogatory comments about the other in the hearing or presence of M C.

5. It is Ms P’s position that Mr F is a heavy user of alcohol.  There is some evidence to support her contention in the form of Ms MacL’s testimony that she has smelt alcohol on Mr F, when he has collected M C in the past.  I suspect this consumption of alcohol has the potential to inflame the situation between the parties and cannot be regarded as being optimal for the care of M C.  Accordingly, orders should be made restraining Mr F from consuming alcohol before and during contact. 

6. For reasons already provided, I am satisfied that it is appropriate to make orders for Mr F to have contact to M C on two occasions each week, namely on each Tuesday and Thursday between the hours of 9.00am and 3.30pm.  Regrettably, at this stage and for some time to come, the child must be exchanged between the parties within the confines of the C Police Station.  I urge the mother and those supporting her to ensure that she is punctual in respect of these arrangements. 

7. Neither party has closely considered arrangements for longer periods of contact or what should occur when inevitably Ms P wishes to visit her family on B I.  At this juncture, I propose orders that will allow Ms P to travel to B I for periods of up to one week, on giving Mr F seven days notice of her intention in this regard. 

8. In my view, at this stage, it is premature to consider the issue of overnight contact.  Relations between the parties are too raw and the prognosis in respect of contact too uncertain for overnight contact to be considered at this stage.  I must also bear in mind that M C is still only a child of very tender years. 

The contravention application

1. The provisions of the Family Law Act, which deal with the consequences of a failure to comply with orders and other obligations that affect children are set out in Division 13A. The expression “contravened an order” is defined in section 70NC as follows:

   “A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:

   (a)where the person is bound by the order – he or she has:

   (i)intentionally failed to comply with the order; or

   (ii)made no reasonable attempt to comply with the order; or

   (b)otherwise – he or she has:

   (i)intentionally prevented compliance with the order by a person who is bound by it; or

   (ii)aided or abetted a contravention of the order by a person who is bound by it.”

2. Section 70NE defines the meaning of “reasonable excuse for contravening an order”. A reasonable excuse includes the circumstances set out in sub-section (1A), (2), (3) and (4) but is not limited to them. These sections provides as follows:

   “(1A)[Lack of understanding of obligations] A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:

   (a) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

   (b) the court is satisfied that the respondent ought to be excused in respect of the contravention.

   (2)[Breach of residence order to protect health or safety]

   
   

   A person (the respondent) is taken to have had a reasonable excuse for contravening a residence order in a way that resulted in a child not living with a person in whose favour the order was made if:

   (a)   the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)   the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   (3)[Breach of contact order to protect health or safety]
   A person (the respondent) is taken to have had a reasonable excuse for contravening a contact order in a way that resulted in a person and a child being deprived of contact they were supposed to have had under the order if:

   (a)   the respondent believed on reasonable grounds that the deprivation of contact was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)   the deprivation of contact was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   (4)[Breach of specific issues order to protect health or safety] A person (the respondent) is taken to have had a reasonable excuse for contravening a specific issues order by acting contrary to section 65P if:

   (a)   the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)   the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).”

3. To find a contravention proven the court must be satisfied that the order has been contravened and the alleged offender has not provided that he or she had a reasonable excuse for that contravention. The standard of proof in determining whether the order has been contravened is set out in section 70NEA and is proof on the balance of probabilities. This is also the standard of proof to be applied in determining whether a person who has contravened an order affecting children had a reasonable excuse for that contravention. In applying the civil standard of proof I must also have regard to the matters discussed in Briginshaw v Briginshaw.[29] 

   [29] Briginshaw v Briginshaw (1938) 60 CLR 336

4. It is the mother’s position that she had a reasonable excuse for contravening the orders.  It is her position that the parties mutually agreed to vary the orders so that Mr F would collect M C at DAIWS rather than at the N Police Station.  She asserts that she was never opposed to contact on this basis, however Mr F failed to attend at DAIWS as agreed.  As a result, she came to the view that he was essentially disinterested in having contact, a view which was fortified by the letter from Mr F’s solicitor indicating his client questioned M C’s paternity.

5. The test as to whether or not Ms P had a reasonable excuse must be judged objectively.  Her conduct must be reasonable when judged by an objective standard.  It is not sufficient for Mr P herself merely to think that what she is doing is reasonable.  In Kelly & Kobelnek[30] Justice Hannon expressed the test as follows:

   “In my opinion the respondent, in order to exculpate herself from the contravention must establish that she has or had a reasonable excuse according to an objective test namely, whether a reasonable person in the position of the mother would consider on reasonable grounds that she had a reasonable excuse for the contravention.”

   [30] Kelly & Kobelnek unreported decision of Justice Hannon Family Court of Australia at Hobart delivered 10 March 1998

6. Ms P was under a positive duty to ensure that the orders of 25 May 2004 were complied with and that M C had contact with her father.[31]  The difficulty in this case is that neither party applied to the court to change the orders of 25 May 2004, when it became apparent they were not working.  Neither party raised any difficulties with the orders prior to the competing applications being fixed for final hearing.  The parties seem to have agreed initially to rather ambitious orders, which in the period since, both have resiled from to some degree or other. 

   [31] See Stevenson v Hughes (1993) FLC 92-363

7. Although the issue as to whether or not Ms P has a reasonable excuse for contravening the orders must be judged by an objective standard, I consider that this objective standard must be informed by a consideration of this objective person with the attributes and background of Ms P.

8. In this regard, I do not consider that Ms P was fully informed of all the obligations imposed upon her by the orders.  She is not a sophisticated person.  She relied on her solicitor.  She believed that it would be acceptable for Mr F to come to DAIWS to collect M C.  Her solicitor clearly gave her this impression.  Ms P wished for someone like Ms MacL to be an intermediary between the parties.  She herself had difficulty getting to N Police Station.  I accept she was not fully aware of the obligations placed on her by the orders.

9. Matters were further compounded by the domestic violence order Ms P took out against Mr F.  It is also clearly the case that Mr F also presented himself at DAIWS and contact between him and M C took place.  By his actions he indicated some acquiescence to a change in arrangements for contact.  Thereafter, I accept that he failed to attend at DAIWS.  This failure to appear coincided with his request for parentage testing.  In all these circumstances, I consider that an objective person, with Ms P’s background and attributes, would consider that Mr F had become disinterested in pursuing contact.

10. Clearly this was not the case.  As I have already found, Mr F was becoming increasingly frustrated with the situation and with his solicitor in particular.  However, his solicitor did not raise these issues with Ms P herself or those advising her.  It was only when Mr F elected to pursue action on his own behalf in November of 2004 that Ms P and her solicitor realised the true position.  By this time, there had been no contact for a considerable period of time.  In all these circumstances, I consider that Ms P has a reasonable excuse for contravening the orders and for that reason I propose to dismiss the contravention application.

1. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding two hundred and three (203) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate:  C White

Date:  4 August 2005