Pascoe and O'Keefe and Anor

FAMILY COURT OF AUSTRALIA

PASCOE & O'KEEFE & ANOR

[2018] FamCA 350

FAMILY LAW – CHILDREN – PARENTING – where husband has engaged in family violence - where mother and father both have disabilities impacting upon capacity to care for child.

Family Law Act 1975 (Cth) – ss 60B, 60CA, 60CC, 60DAA

Morgan & Miles (2007) FLC 93-343
U & U (2002) 211 CLR 238

APPLICANT:

Ms Pascoe

1st RESPONDENT:

Mr O’Keefe

2nd RESPONDENT:

Mr Pascoe

INDEPENDENT CHILDREN’S LAWYER:	Mr D Lee
FILE NUMBER:	CAC	790	of		2015

DATE DELIVERED:

21 May 2018

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

1 - 4 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Davis

SOLICITOR FOR THE APPLICANT:

Robinson McGuinness

SOLICITOR FOR THE 1ST RESPONDENT:

Self-representing

SOLICITOR FOR THE 2ND RESPONDENT:	Prudential Legal Solutions
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Gabbedy Milson Lee

Orders

Mr O’Keefe (“the Father”) shall have sole parental responsibility for D, born ... 2014 (“the child”).
The Father shall keep Ms Pascoe (“the Mother”) promptly informed, in writing, which may include by text message, of all major long-term decisions regarding the child.
The child shall live with the Father.
The child shall spend time with the Mother as follows:
(a)During NSW school term time each alternate weekend from after school time Friday (or 3pm if not at school) until school time the following Monday morning (or 9am if not at school), commencing on the first weekend of each term;
(b)During the 2018 NSW term school holiday periods, from midday Friday until midday the following Monday on the middle weekend of the school holiday period;
(c)For the first week of the 2018 NSW Christmas school holiday period;
(d)From the commencement of 2019 for the first week of each NSW school holiday period;
(e)Notwithstanding the above Orders, the child shall spend time with the parties as follows:
(i)With the Mother on Mother’s Day for a period of no less than four hours;
(ii)With the Father on Father’s Day for a period of no less than four hours;
(iii)the child shall spend a period of no less than two hours on a school day and four hours on a non-school day with either parent, or any sibling, on their birthday.
(iv)At Christmas:
A.With the Father from 12 noon 24 December 2018 to 12 noon 25 December 2018 and each even numbered year thereafter; and
B.With the Father from 12 noon 25 December 2019 to 12 noon 26 December 2019 and each odd numbered year thereafter.
Mr Pascoe is restrained by injunction from:
(a) Consuming alcohol while the child is in the same household as he is; and
(b) Being intoxicated in the child’s presence.
The parent with whom the child is living or spending time with will facilitate and encourage the child in speaking with the other parent by telephone, via the National Relay Service in the case of the Mother, and/or Skype/Facetime at all reasonable times, including at least once per week.
In aid of the above Order the Father will ensure that the child has available to her in his home a device supporting audio visual communication with the Mother, such as Skype.
Neither party shall denigrate the other parent, or members of their family to, or in the presence of, the child, or allow any other person to do so.
That this Order be an authority to all medical and health practitioners engaged in the care of the child to provide to both parents all information and reports about the child’s health and wellbeing upon either parent’s request.
That this Order be an authority to all schools and pre-schools attended by the child to provide both parents with information and notices, including, but not limited to, reports, updates, invitations and photograph order forms for the child.
Both parents are at liberty to attend any events that are held by, or at, the child’s schools or pre-schools.
The parents will inform each other as soon as practicable (and within 24 hours) of any significant illness, accidents or injury suffered by the child; any significant medical or dental treatment provided to the child; and any medication the child is to take whilst in the other parent’s care.

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

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

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 790 of 2015

Ms Pascoe

Applicant

And

Mr O’Keefe

First Respondent

And

Mr Pascoe
Second Respondent

REASONS FOR JUDGMENT

Background

The Applicant in this matter is Ms Pascoe (“the Mother”), the First Respondent is Mr O’Keefe (“the Father”), and the Second Respondent is Mr Pascoe, who is married to the Applicant. These proceedings relate to the child, D (“the child”), born in 2014, who is the biological child of Ms Pascoe and Mr O’Keefe.
At present the Mother and Father have Orders in place for a shared care arrangement on a 4/3 split to the Mother. Mr Pascoe is excluded from the Mother’s home while the child is there by virtue of interim orders.
The Mother is totally deaf and does not communicate orally. Rather, she relies upon Auslan, writing, such as texts, the National Relay Service, which is a telephone based service allowing Auslan to be converted to text, some ability to lip read and her ability to read body language.
Mr Pascoe has a mild intellectual disability. He has some capacity to communicate in Auslan. He and the Mother have two children, B, who is nine years old and C who is eight years old. They are expecting another child in 2018 and hope to move from E Town to F Town.
The Father is 69 years old, with adult children. He lives by himself out of town, about 35km from the Mother. He has quite limited ability to communicate using Auslan. His home is about 70 kilometres from F Town.
The Mother asks that the child live primarily with her. The Father seeks to exclude Mr Pascoe from the child, unless under supervision, on the basis of risk of exposure to family violence. If the child is otherwise to be exposed to Mr Pascoe in the Mother’s household, the Father seeks that the child live with him.
This matter has been accorded priority in the list due to the urgent circumstances of the Mother being due to give birth this year while, pending final determination, Mr Pascoe is restrained from being in the home while the child is present. The need to resolve this very difficult circumstance prior to the Mother giving birth has meant that the matter was listed at a significantly earlier date than may otherwise have been anticipated. In the ordinary course, it is unlikely that the matter would have been reached for hearing for another 18 months to two years. Such an outcome would have placed an intolerable burden on the parties with consequential detrimental impacts upon the child.

Material Relied Upon

The Applicant relied upon the following documents:
a)Affidavit of the Applicant filed 12 February 2018;
b)Affidavit of Ms G filed 16 January 2018;
c)Affidavit of Mr H filed 12 January 2018;
d)Affidavit of Ms J 12 January 2018; and
e)Affidavit of Ms K 16 January 2018.
The First Respondent relied upon the following documents:
a)Affidavit of the First Respondent filed 15 February 2018; and
b)Affidavit of Ms L annexed to the affidavit of the First Respondent filed 15 February 2018.
The Second Respondent relied upon the following document:
a)Affidavit of the Second Respondent filed 24 January 2018.
The Independent Children’s Lawyer (“ICL”) relied upon the following document:
a)Affidavit of Ms M, the Single Expert, filed 12 October 2017.

The Orders sought by each of the Parties

The Mother seeks, in her Amended Initiating Application filed on 12 January 2018:
1.That all previous Orders be discharged.
2.That the mother have sole parental responsibility for the child D born in 2014 (the child).
3.The mother shall keep the father, Mr O’Keefe, informed of all major decisions in relation to the care, welfare and development of the child.
4.That the child live with the mother.
5.The mother be permitted to relocate the child’s residence to the F Town region.
6.That the father shall spend time with the child as follows:
a.Each alternate weekend from 10am on Friday until 5pm on Sunday; and
b.At all other times as agreed between the mother and father in writing.
7.Notwithstanding the above Orders, the child shall spend time with the parties as follows:
a.With the mother on Mother’s Day for a period of no less than four hours;
b.With the father on Father’s Day for a period of no less than four hours;
c.The child shall spend a period of no less than two hours on a school day and four hours on a non-school day with either party, or any sibling, on their birthday.
d.At Christmas:
i. With the mother from 12 noon 24 December 2018 to 12 noon 27 December 2018 and each even numbered year thereafter; and
ii. With the father from 12 noon 24 December 2019 to 12 noon 27 December 2019 and each odd numbered year thereafter.
8.That for the purpose of changeovers:
a.In the event the mother is permitted to relocate the child’s residence to the F Town region, changeovers shall occur at the petrol station at N Town, New South Wales.
b.In the event the mother is not permitted to relocate the child’s residence to the F Town region, changeovers shall occur at E Town Woolworths, New South Wales.
9.The parent with whom the child is living will facilitate and encourage the child in speaking with the other parent by telephone and/or Skype/Facetime at all reasonable times, at least once per week.
10.Neither party shall denigrate the other parent, or members of their family to or in the presence of the child, or allow any other person to do so.
11.That this Order be an authority to all medical and health practitioners engaged in the care of the child to provide to both parents all information and reports about the child’s health and wellbeing upon either parent’s request.
12.That this Order be an authority to all schools and pre-schools attended by the child to provide to both parents with information and notices, including but not limited to, reports, updates, invitations and photograph order forms for the child.
13.Both parents are at liberty to attend any events that are held by or at the child’s schools or pre-schools.
14.The parents will inform each other as soon as practicable (and within 24 hours) of any significant illness, accidents or injury suffered by the child; any significant medical or dental treatment provided to the child; and any medication the child is to take whilst in the other parent’s care.
15.Both parents will provide the other with no less than 14 days’ notice of an intention to travel interstate with the child (outside of ACT/NSW) for any period longer than 4 days.
The First Respondent seeks, in his Amended Response to Initiating Application filed on 14 April 2018:
1.That I, [Mr O’Keefe], am granted full parental responsibility of my child [D].
2.During contact with the child and [Ms Pascoe], [Ms Pascoe] will be restrained from allowing [Mr Pascoe], from spending any time with the child, unless supervised professionally or by the child’s Maternal grandparents.
3.That [Ms Pascoe] be restrained from drinking alcohol whilst in the presence of the child or within 12 hours of having contact with the child.
4.That the child [D] is to live with her father full time and spend time with her mother as determined by the court in the best interests of the child.
5.That the child is to be known as the [D O’Keefe].
6.That the birth certificate be changed to reflect her father’s details and her correct name.
The Second Respondent sought orders in accordance with those sought by the Applicant mother.
The Independent Children’s Lawyer (“ICL”) supported the orders sought by the Applicant Mother.

Procedural History

The parties filed an agreed chronology[1] shortly before the hearing which provided, relevantly:
[1] Exhibit C2.

DATE	DESCRIPTION
2013	Mr Pascoe charged with assaulting the Mother and sentenced to good behaviour bond.
2015	Mr Pascoe was charged with breaching the Mother’s Apprehended Violence Order (“AVO”) and was sentenced to a good behaviour order for 12 months.
20 August 2015	Consent Orders signed, which provided for the child to spend time with the Father each weekend from 9am on Saturday until noon the following Monday.
19 June 2017	The Father withholds the child in contravention of the August 2015 Consent Orders.
22 June 2017	Mother applies for a Recovery Order in the Federal Circuit Court seeking the child be returned to her.
23 June 2017	Orders made by Judge Hughes that the child live with the Mother and spend time with the Father, and that Mr Pascoe not be at the Mother’s home or within 100 metres of the child at any time that the child is in the care of the Mother.
7 July 2017	Orders made by consent that the child live with the Mother and spend time with the Father.
21 July 2017	Father refuses to return the child to the Mother in breach of Orders dated 7 July 2017.
4 August 2017	Mother applies to the Court for the return of the child.
14 August 2017	Orders made for the return of the child by the Father to the Mother.
14 August 2017	Matter transferred to the FCoA.
15 November 2017	Mother obtains an Interim Apprehended Violence Order against the Father.
Late 2017	Department of Family and Community Services (“FaCS”) conducts an appraisal which found no concerns in relation to the Mother and Father’s care of the child.
10 January 2018	Father unsuccessfully seeks an Apprehended Violence Order against the Mother, seeking to prevent the child from being in contact with the Mother.
5 March 2018	Father unsuccessfully seeks an Interim Apprehended Violence Order against Mr Pascoe.
6 April 2018	Father seeks to proceed to trial.

Credibility

All three parties should be approached with some caution in terms of their reliability or credibility as witnesses. The Father repeatedly changed his responses while under cross-examination. The Mother frequently answered that she could not remember when challenged about relevant matters. Although in large part this was in the context of events involving the consumption of alcohol, it either meant that she could not be a reliable historian because she could not remember, or that she resisted questioning by claiming that she could not remember. While Mr Pascoe was frank about a number of matters, including his dislike of the Father, he too was unable to give accounts of occurrences while intoxicated. Further, his oral evidence as to the extent of his violence to the Mother conflicted with his affidavit evidence.

Key Issues

Orders were made on 10 November 2017 that set out the issues requiring resolution, as agreed by the parties, as follows:
a)The risk, if any, of physical or emotional harm to the child in the care of either party including, but not limited to, the impact of alcohol abuse by any party;
b)Allegations of violence occurring in the household of the Mother:
i)In the presence of the child;
ii)As between the Mother and Mr Pascoe, and by whom such violence was perpetrated;
iii)Violence upon any of the children within the Mother’s household;
c)Allegations of violence towards the Mother perpetrated by the Father;
d)The parenting capacity of each of the parties including the capacity of the Mother and Mr Pascoe and their capacity to parent jointly;
e)The benefits to the child of spending time with either of the parents or Mr Pascoe;
f)The degree to which it may be anticipated that the parties will comply with Court orders; then
g)Should the child, D Pascoe:
i)Predominantly live with the First Respondent, Mr O’Keefe;
ii)Predominantly live with the Applicant Mother, Ms Pascoe in the absence of the Second Respondent, Mr Pascoe; or
iii)Predominantly live with Ms Pascoe with Mr Pascoe being present; further
1.If Mr Pascoe is permitted to be present under the previous paragraph, under what conditions, if any, should the child be allowed to come into contact with Mr Pascoe.

The evidence

The Father and Mr Pascoe have known each other since Mr Pascoe was a child. Previously Mr Pascoe, the Mother and the Father were on good terms. The Mother and Mr Pascoe would visit the Father on his farm. According to the Father they lived there for a period. Although there is some dispute about this, it is not a matter that is necessary to resolve.
The Mother and Mr Pascoe have been in a relationship since about March 2006, although they separated for a period of time.
Given the issues of risk, and in particular the risk of violence, the interactions between the parties, and violence between the Mother and Mr Pascoe occurring before the child was born are important matters to consider.
Exhibits F2 and F7 were both records produced by the New South Wales police service. They show a police attendance on the Mother and Mr Pascoe on 3 May 2009. The records show information taken from the Mother, although it was taken without an interpreter, calling into question its accuracy. It records that Mr Pascoe had shaken B, in order to stop her from crying, and struck her to the side of her head dislodging a cochlear device. He is then recorded as having grabbed the Mother. B was subsequently taken to hospital. No evidence of an injury to B was led. The Mother later made a different statement asserting that no assault had occurred.
Exhibit F7 records that on 5 July 2010 one of the children called a friend of the Mother and Mr Pascoe, Ms L, who could hear an argument taking place between the Mother and Mr Pascoe and consequently called the police.
Exhibit F7 records an incident occurring on 23 March 2011 where the Mother told the police that Mr Pascoe had assaulted her by squeezing her head between his two hands, and then on 24 March 2011 pushed the Mother. Mr Pascoe made some admissions as to having his hands on the Mother’s head, albeit he said he merely put them there to attract her attention.
Although not contained in the police records, the Mother admitted in her affidavit material that in 2011 she committed a high range alcohol driving offence while B and C were in the car with her.
Mr Pascoe accepts that the Mother obtained an Apprehended Violence Order against him in approximately 2013, following what he describes as a “misunderstanding,” where he assaulted the Mother by slapping her. He says that this incident occurred when they were both drinking, that he was charged with assault and placed on a Good Behaviour Order.
Exhibit F2 records an incident on 14 January 2014 involving the Mother and Mr Pascoe. Both had consumed alcohol. They were reported to the police by a neighbour as having had an argument on the front lawn. The neighbour alleged to the police that Mr Pascoe had punched the Mother to the face, which had caused the neighbour to leave the neighbour’s house and to intervene. Mr Pascoe denied having punched the Mother and subsequently alleged that the Mother had thrown a can at him and pushed him. The Mother at the time claimed that she was hit in the face.

Exhibits F2 and F7 record that on 15 January 2014 the Mother was arrested for an alcohol driving offence in the high range. She attended the police station, initially denying driving, but with the closed circuit television revealing that she had driven to the police station. Her two older daughters were in the car at the time of the offence, then aged four and five years.
The child was conceived at some point in early 2014. How that came about is the subject of dispute, the Mother alleging that it was by virtue of a sexual assault upon her, the Father saying that it was at the instigation of the Mother. To the extent that it is relevant to issues of family violence and risk it is necessary to consider this issue.
The Father says that the Mother came to his bed on three occasions, after saying that she wanted a son with him. In his oral evidence the Father clarified that this communication occurred by the Mother wiggling her little finger at him and pointing to a picture of the Father’s sons.
The Mother denies this and says that she does not recall intercourse with the Father occurring, but that it must have happened at a time that she alleges he was plying her with alcohol. She says that when she becomes intoxicated she does not remember things. She says that she formed the view that the intercourse was without her consent.
Incongruent with this claim are the later text messages from the Mother in 2017. A number of text messages were contained at Exhibit F1. Aside from one of these messages, the Mother accepted that they were all messages sent by her to the Father. Without dealing with all of the messages, or all of their content, the following appeared relevant:
·16 February 2017 - “Hi honey”, the text message contained a request for money. It was signed off with “love you xxx”.
·16 March 2017 - the text commenced “Hi honey", it then contained a request for money to “get [the child] something and for [C] birthday”. It also asserted “[B] and [C] want to say hello to you”, it ended with “love you xxxx”.
·22 May 2017 - this text contained a request for money and was signed off “xxx”.
·16 April 17 - this text involved a request for money, it was in friendly terms and asked the father to give the child “a big cuddle and kiss from me”.
That is, around this time in 2017 the texts were friendly, cooperative, and to some degree intimate. They sat poorly with the notion that the Mother had concluded that she had been sexually assaulted by the Father in the conception of the child.
This warmth seems to be further echoed in the text message of 12 June 2017 which followed the handover of the child to the Father where he first retained her in breach of the orders, prior to the retention. That message is as follows:
Hey how are [the child] is she okay? She doesnt look happy when she go in your car yesterday it worry me. [Ms L] want to know why are you in hurry up to leave yesterday? Is everything ok please give [the child] big cuddle for me x”.
Controversially, the Mother is recorded as telling the Single Expert that conception was the result of an affair with the Father. The Mother disputes signing this, saying that a mistake must have been made during the interview. Even without relying on the Mother describing it as an “affair” the Mother did not characterise the conception of the child to the Single Expert as being without consent.
The Father also says that the Mother provided pictures of the child to him, and that he provided an iPad to her for that purpose, prior to any paternity testing. He suggests that this was because the Mother knew by this time that the child was his. The Mother accepted that she showed the Father pictures of the child through her telephone, although she does not accept that she described the child as being the Father’s and her child.
Particularly relying upon the messaging as set out above, I do not accept either that the Mother has, in truth, formed the view that the child’s conception was other than by consent, or that it was without consent.
The Father alleges (without the support of corroborative material) that in March 2014 the ambulance service called him, apparently on behalf of the Mother, to ask him to look after B and C following an assault by Mr Pascoe on the Mother. He alleges that the Mother told him that Mr Pascoe had rammed her against a wall with his stomach. The Mother denied such an incident.
The child was born in 2014.
The Father alleges that on the Australia Day weekend in 2015 he received a call from B saying that Mr Pascoe was hurting the Mother, while she held the child, by kicking her in the shins.
Exhibit F2 showed a police attendance on the Mother and Mr Pascoe on 2 March 2015. The evidence of the Father was that he had earlier been called by C regarding an incident going on in the house. Hearing B screaming and Mr Pascoe yelling at her to put the phone down, he had called the police.
This attendance occurred in the context of the then current Apprehended Violence Order (presumably obtained in the context of the assault in 2013) against Mr Pascoe. The Order included a condition that he was not to approach the Mother within 12 hours of consuming alcohol. He had recently consumed alcohol and attended at her home.
The records indicate that the Mother and Mr Pascoe had an argument in relation to the paternity of the child. The police record the Mother as having stated that she had been assaulted by Mr Pascoe. The police accepted they had difficulty in obtaining an account but alleged that the mother expressed fear for her safety and that of the children. Under cross-examination the Mother denied that she had said such a thing and indicated that she had difficulty communicating with the police as they did not obtain an interpreter for her.
The police recorded C as telling them of an assault in which her Mother had been kicked by Mr Pascoe.
Mr Pascoe made admissions to the police of having taken a telephone from the Mother which she had been holding in her hand behind her back. In her oral evidence the Mother agreed that Mr Pascoe had taken the telephone from her and stated that she had been swinging the hand holding the telephone backwards and forwards so that at times it was behind her back. She denied any other assault. When asked by the police whether or not he had kicked the Mother, Mr Pascoe said “not that I remember”. According to Mr Pascoe, he was convicted of breaching the AVO and placed on a 12 month Good Behaviour Order.
Mr Pascoe accepts that he was drinking heavily at about this time to “try to numb the hurt” resulting from the Mother being pregnant to the Father, who Mr Pascoe had previously regarded as “an elder and a family friend.”
Exhibit F2 records that on 3 March 2015 the police saw bruises to the Mother’s shin and arm (the 2 March report alleging kicking to the shins).
The Father sought and obtained paternity testing through the Federal Circuit Court on 17 July 2015.
The Mother accepted that she attempted suicide in May 2015 by overdose of Panadol. No ongoing issue of risk flowing from this matter was pursued at the trial.
The Mother and the Father entered into consent orders in relation to the child on 19 August 2015. These provided for the child to be with the Father every weekend from Saturday through to Monday. They contained various other matters including restraints in relation to the consumption of alcohol. The Mother complained that she had no legal advice prior to signing the terms, and no interpreter to assist her in understanding what it was that she was doing. She says that she felt coerced into signing the terms out of fear that the Father would attempt to remove the child from the Mother completely.
The Father did not dispute a lack of legal advice and interpreter. He accepted that he had taken her to his lawyer’s office for the signing of the terms.
Perhaps in contrast with the alleged circumstance of coercion, shortly thereafter the Mother increased the Father’s time with the child beyond what was provided for in the Orders, meaning that he commenced having the child each weekend from Friday through to Monday. The Mother explained in her affidavit that this was “because the child’s relationship with (the Father) appeared to be going well.” In her oral evidence she sought to depart from this explanation to say that she had done so in order that he would give the Mother more flexibility with the child so that they could travel.
Exhibit F2 records that on 9 December 2015 the mother and Mr Pascoe alleged that the Father had made threats to them by telephone. The height of these threats appeared to be the phrase “come on come on round". The police noted that there were disputes in relation to changeovers. The police negotiated changeovers to take place outside the police station as both parties were in attendance.
Exhibit F2 records that on 2 February 2016 a hospital wardsman called the police following the Mother's attendance at hospital in an ambulance. The wardsman called the police as the Mother had gestured with a closed fist to her head and he had inferred that this involved an assault by Mr Pascoe. Mr Pascoe attended and asserted that the Mother had suffered a fit and that he had called the ambulance to assist her. At the time the Mother smelt of intoxicating liquor. Mr Pascoe appeared not to have been drinking. The doctors confirmed to the police that her attendance was in relation to a seizure.
Exhibit F2 records that on 12 September 2016 a verbal argument had taken place between the Mother and Mr Pascoe regarding the bath time of the children. Mr Pascoe had called the police after having consumed four long necks of beer. He was emotional on presentation. He asserted that he wanted no charges pressed against the Mother. It is not clear what the Mother was supposed to have done in this particular instance. It is not suggested by this record that Mr Pascoe had done something to the Mother.
The Father alleges that on 12 June 2017 B told him that Mr Pascoe smacks the child hard and makes her cry, and that it happens “all the time.” Subsequently he says that he asked the child on 16 June 2017 whether Mr Pascoe smacked her. She said nothing and hugged him. She had previously said that her Mother did not smack her. The Father inferred that this meant that Mr Pascoe has smacked the child.
On 19 June 2017 the Father withheld the child contrary to the Orders of August 2015. He accepted that he had decided to withhold the child prior to his collection of the child from the Mother.
The Mother had to commence proceedings to secure her return. On 29 June 2017 Orders were made, primarily by consent, providing for the child to live with the Father and to spend time with the Mother each weekend pending further Order. Orders were made preventing Mr Pascoe from coming into contact with the child.
On 7 July 2017 further Orders were made by consent in the Federal Circuit Court that continued a 4/3 arrangement favouring the Mother and provided that Mr Pascoe would not come into contact with the child unless supervised by FaCS. This had the effect of excluding Mr Pascoe from his home each weekend when the child was present.
The Father says that on 19 July 2017 he thought that the Mother had breached the Orders by having Mr Pascoe in the home with the child. Accepting that she was with Mr Pascoe, the Mother explains that, at that time, the child was being cared for by her friend Ms G. Ms G confirmed that on 19 July 2017 she had the child overnight. Neither was challenged about this.
On 21 July 2017 the Father again withheld the child. He was cross-examined as to his rationale. In the context of his suspicion that the Mother had breached the Orders by allowing the child to come into contact with Mr Pascoe, the basis that he advanced was that the child was having nightmares, was constipated, withdrawn and had stopped her toilet training. He did not consider the possibility that this may have stemmed from his previous withholding of the child.
Again the Mother was required to apply to the Court for the child’s return. On 14 August 2017 orders were made for the child’s return to the Mother and the matter was transferred to the Family Court of Australia due to the case’s particular complexities.
Until the retentions by the Father in June and July 2017, the parents appeared to have acted on a cooperative basis. Those two retentions, each requiring Recovery Order proceedings, marked the end of a cooperative relationship and the commencement of assertions that there were difficulties in relation to handovers. Since that time the Mother says that she has had problems with the child on changeover, being resistant to going with the Father.
As at the swearing of his affidavit, Mr Pascoe had only seen the child on two occasions under supervision since then, although it appears that there has been further supervised time since.
In December 2017 the Father applied at the E Town Local Court for an Apprehended Violence Order directed at the Mother and Mr Pascoe, on the basis of what the Father says are false reports being made about him. He named the child as a protected person.

Other matters

The Father’s position was that, but for the presence of Mr Pascoe, the child should live with the Mother. His case was that Mr Pascoe poses a risk to the child of exposure to family violence, a risk particularly connected to Mr Pascoe’s consumption of alcohol and anger issues.
In answer to this both the Mother and Mr Pascoe gave evidence as to reduced alcohol consumption. Each said that they had attended Alcoholics Anonymous. Mr Pascoe said that for a short period, it appeared of two weeks, he attended on Alcoholics Anonymous, and then went “cold turkey” off alcohol, although he concedes that until a few months ago he still drank alcohol, albeit to a reduced degree.
Mr Pascoe also gave evidence as to the assistance that he has received from Mr O, a counsellor, who he says has provided him with effective anger management strategies. These strategies, he says, help him both to avoid becoming angry and, secondly, should he become angry, to manage that anger.
Mr Pascoe also pointed to the motivation that he has to reduce his alcohol consumption so that he is no longer separated from his family, which is the consequence of the current orders put in place by the Federal Circuit Court in June 2017.
Mr Pascoe has struggled to find places to stay while excluded from the home, staying with some relatives in P Town for a period, and also with his sister in Q Town. He describes himself as living out of a swag. It has been a period of great practical, financial and emotional strain. He says that if the Orders continue in this fashion, it will result in the end of the relationship between he and the Mother.
Mr Pascoe says that he loves the child in the same way that he loved her when she was born (at which time he thought that she was his child). He says that he has come to understand that being a father “is more than just being a biological father.” The Mother says that the child refers to Mr Pascoe as “daddy” and asks after him. She says that in her house the child’s Father is referred to as “[Mr O’Keefe]” and that is how the child refers to him. The Father says that when the child is at his home she does not refer to him as Mr O’Keefe but as “dad”. In contrast the Father alleges that the child tells him that she “hates” Mr Pascoe.
The Mother relied on Exhibit M1, a safety assessment produced out of the FaCS records, occurring in about October 2017. This document set out multiple attendance upon the children, a meeting with the Mother and an attendance at the home and included contact with B and C’s school. These did not disclose a current alcohol consumption issue or conflict issue between the Mother and Mr Pascoe (both B and C denying such problems). No current care or safety issues were identified in this process. This cannot be regarded as definitive, but identifies no apparent and current deficiency during the investigation by FaCS.

F Town

The Mother and Mr Pascoe plan to move to F Town. Mr Pascoe has family there. There is an appropriate school for B, who has hearing difficulties to attend, including with a deaf teacher who has previously taught B. Mr Pascoe intends to continue with his counselling from Mr O even if he lives in F Town. The Mother and Mr Pascoe each plan to continue to use R Group and S Group, who provide support and case work.
As noted above, the change in travel is from the current distance between the Father and the Mother of 35km to a distance of 70km. While the Father expressed a willingness to undertake travel based on the current distance, he said that he was unwilling to undertake travel to F Town, suggesting in response that the child could attend a school in between his home and F Town. No evidence was advanced to suggest that the increase in travel time presented a significant impediment to spending time with the child, such as to render any particular orders impracticable.

Communication

There are significant problems in communication between the parties. Firstly, there are the practical difficulties posed by the Mother being deaf and the Father having little Auslan. Secondly, relations between the parties are currently hostile. In particular, Mr Pascoe says that he hates the Father and, while he conceded the Father ought to have time with the child, also stated he did not think that he should have any time with the child.
The Father, on the other hand, has poor regard for Mr Pascoe and is fixed in his view that Mr Pascoe cannot change, and that he should not have contact with the child unless supervised. The Father also concedes that he does not trust the Mother.
Whether any of these positions are justified, they present practical impediments to cooperative parenting.

The evidence of the Single Expert

Ms M was appointed by the parties as the Single Expert in this case. She interviewed the parties, and assessed the children in September 2017. Her report became Exhibit C3 in the proceedings.
She recommended that the child should live with the Mother (contingent upon an assessment as to whether the Mother and Mr Pascoe are suitable) and that the child spend each second weekend and perhaps a night in the off-week with her Father. In coming to that conclusion the Single Expert expressed opinions regarding a number of underlying matters.
Ms M said that the child’s current state of development was such that she should be in a position to cope with longer periods of time between seeing those people who are important to her. She also assessed her as forming or consolidating her attachments but as presently having no attachment or separation issues with the adults in her life. In relation to those attachments she said at [7.7.1]:
At this stage, [the child] is used to being separated from the second respondent, [Mr Pascoe], and has almost equal time with her mother and father, appearing attached [to] the key adults in her life and to her siblings. I would anticipate, given her age, that she would adapt to changes in her arrangements and some separations from key adults, providing the adults concerned were not duly upset or engaged in continuing conflict with each other.
Ms M appeared to draw no distinction in the attachment and relationship between the child and her Mother and the child and her Father.
What pushed the matter in favour of the child living primarily with the mother was the sibling relationships. She noted that the children appear to enjoy their time together and that “the relationship with a sibling is usually the longest relationship that an individual will experience in their total lifetime." However, her assessment of the sibling relationships went no further than that she had "no reason to doubt a positive relationship." That is, it appeared to be the absence of a negative assessment rather than an actual assessment of the relationships.

At the same time, Ms M accepted that the views currently held by the child’s siblings, as expressed at [6.9] - [6.13], which were highly critical of the Father, are matters which might go to the undermining of the relationship between the child and her Father.
On the question of exposure to violence, Ms M was taken through the entries in the police subpoena material that had been tendered. Exposure to family violence such as is outlined there, she said, could make a child anxious, distressed and unsettled. She would not want continuing exposure to such family violence and noted a heightened risk that a child exposed to such violence will become an anxious person with impaired ability to cope with stress.
Against this she drew some comfort that the assessment by FaCS, which stated that there was no risk. Whether, however, that forms a basis to assess a reduced risk of family violence will stand or fall on the quality of the material produced by FaCS to the Court. The interviews and contact with the school as outlined above give some basis to an assessment that there is no risk, but is of limited value in comparison to the assessment of other historical factors, particularly given the limited information disclosed as to why such a view was formed.
Ms M also looked to the Mother and Mr Pascoe’s claims and efforts at reducing their alcohol consumption and also to the completion of courses as matters reducing the risk of family violence exposure. Assuming that the reduction in alcohol consumption has taken place as described, the durability of the changes remains an open question. Little detail was given as to the manner in which the Mother and Mr Pascoe had gone about reducing their alcohol consumption, or what, in addition to the current motivation to have a reduced alcohol consumption, will aid them in maintaining such a reduction. It should, however, be acknowledged that they appear to have trusting and supportive relationships with Mr O and R Group.
On the question of communication between the Mother and the Father, Ms M was not sure how the practical difficulties they face would affect time that the child should spend with each of them, but thought that the domestic violence order application made by the Father against the Mother, including the child as a protected person, made it difficult to know how the parents would be able to cooperate.
On being asked to assess the impact of the end of the relationship between the Mother and Mr Pascoe (which he had indicated would occur if he was not able to come back into the home) she expected that this would be extremely distressing for the Mother, especially in the context of the Mother having a new baby.

Discussion

The paramount consideration in determining what order should be made is, pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”), the best interests of the child. That is to be determined on consideration of the matters set out at s 60CC of the Act, in accordance with the objects set out in s 60B and the reasoning process set out at s 65DAA.
Having regard, in particular, to the factual considerations as identified by the parties, as they are largely examined above, it may be seen that these considerations engage the Primary Considerations, along with the Secondary Considerations as they deal with the characteristics of the child, her relationships (which necessarily include those with her sisters) and the capacity of the parents and Mr Pascoe to provide for the child’s needs.
Making a determination as to the child’s best interests requires careful consideration of the evidence led and arguments pursued by the parties, while recognising that it is best interests that set the boundary for making the determination.[2] In this case, the parties presented polarised positions as to the Orders that should be made. Those polarised positions do not represent the only options available to the Court, and each party was given the opportunity to address the Court should Orders be made other than in accordance with what each sought. In such an instance, each party sought a substantially shared arrangement be put into place.
[2]U & U (2002) 211 CLR 238 per Gummow and Callinan JJ, and separately Hayne J.
The Act provides for a process of reasoning that requires a determination as to the allocation of parental responsibility, in order to determine the applicability of the statutory scheme and “structured discretion”[3] set out at s 65DAA that follows an order being made for equal shared parental responsibility. If applicable, this scheme requires the Court to consider whether equal time is in the child’s best interests, is reasonably practicable and, if so, to consider making such an order.
[3]Morgan & Miles (2007) FLC 93-343 per Boland J.
There is a presumption in favour of equal shared parental responsibility. That presumption is rendered inapplicable in the following circumstances:
Family Law Act 1975 - Section 61DA
…
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or

(b) family violence.

While there is uncertainty as to the precise nature of, or extent of, family violence, the police records are sufficient to provide reasonable grounds that Mr Pascoe has engaged in family violence toward the Mother. I accept that Mr Pascoe has engaged in violence toward the Mother and B at least as set out in the police records for May 2009 in the case of B, and as set out in the police records of March 2011, 2013, January 2014 and March 2015 in relation to the Mother, or in accordance with the admissions made by Mr Pascoe. The admissions attributed to Mr Pascoe, and, with the caveat that the scope of violence might not be accurately understood, the complaints by the Mother to the police, described violence that caused fear. The recourse to police on these occasions is sufficient to ground that inference. The presumption is rendered inapplicable.
Given the necessity to determine the allocation of parental responsibility on the basis of the child’s best interests, further consideration of the s 60CC matters is necessary before a determination as to parental responsibility can be made.
Significantly, there appears to be no distinction drawn as to the child’s attachment, or as to the nature of the relationships between the child and each of her parents. This is perhaps reflective of the shared care regime that has been in place for most of the child’s life.
On the central question of risk to the child, there is a history of the Mother being exposed to family violence as indicated above. At times there is clear evidence of the children also being exposed to the violence, as seen in the call to “Ms L” and B’s account to the police regarding the kicking to the shins. The incidents between the parties, and the violent examples of conflict between the parties as shown in those records and by their admissions, spans a considerable period of time. Often it is closely allied to the abuse of alcohol.
It was strongly put by the ICL that the steps taken by the Mother and Mr Pascoe to deal with their alcohol abuse, and to deal with their relationship problems, acts to mitigate the risk of exposure to family violence. Mr Pascoe’s evidence as to the steps that he has taken, the reason for those and what he has learned, in particular about anger management, support such a submission. Mr Pascoe, through his lawyer, also offered to comply with whatever further Orders might be necessary (presumably including to consume no alcohol in the presence of the child).
However, these steps can be reasonably seen merely as reducing the risk of exposure to violence, rather than reducing the risk to a negligible level. It may be concluded that there is now less risk of exposure to family violence. However, the degree of reduction in risk, particularly as connected to the consumption of alcohol, is largely reliant on self-reporting, in circumstances where there should be caution before accepting those witnesses. While it is true that Ms J gave some evidence as to the limited drinking on the part of Mr Pascoe over New Year 2017, this can only provide the most limited support, given the reasonably brief periods of interaction between Ms J and the parties. Although it gives some support, corroboration of an isolated instance in relation to alcohol does not set a good foundation to conclude that the alcohol issue is solidly under control.
A further matter that goes to the reduction of risk is that soon the child will start at school, meaning regular exposure to mandatory reporters outside her home. This adds to her protection from family violence, by increasing the likelihood of report of injury, or perhaps of report of exposure to violence. However, this is a limited reduction in risk, particularly if the violence is alcohol fuelled, running the risk that the violence may be occasioned without thought as to the consequences of reporting under such circumstances.
Risk has to be considered in the context of the other considerations to determine whether there is an unacceptable risk. That is, how the consequences potentially falling from that risk interact and balance with, for example, the benefits potentially accruing to the child from having contact with that person, must be considered.
The issue of violence is a serious one, particularly given the potential consequences as outlined by the Single Expert.
The remedy sought by the Father for this risk is either the exclusion or supervision of Mr Pascoe, which in practice equate to much the same thing.
A consequence of such exclusion is prejudice to the ongoing nature of the relationship between the Mother and Mr Pascoe. The impact this has on the Mother is likely to impact on the child. Additionally, the secondary effect of the impact upon the child’s sisters should be recognised. If either the child is excluded from the home because Mr Pascoe is there, or Mr Pascoe is excluded from the home, or the relationship between the Mother and Mr Pascoe disintegrates, B and C will be impacted, and this, in turn, will impact upon the child.
A further consequence, relying in particular on Mr Pascoe’s descriptions in his affidavit, and to the Single Expert, is that Mr Pascoe loves the child. Supervision or exclusion reduces for the child the benefits flowing from this relationship, because under such circumstances the child’s experience of Mr Pascoe is limited.
While some criticism was offered in respect of the Father, due to his age, due to health concerns and due to him being on a farm, none of these matters, either individually or cumulatively, lead to a risk of any significance. Neither parties’ complaints in relation to the manner in which the other parent clothes the child, or does or does not seek medical assistance, are of sufficient magnitude to impact upon a consideration either of risk or of capacity to provide for the child.
Unacceptable risk involves both a consideration of the likelihood of risk, the magnitude of the consequences should that risk come to fruition, and the protections that might reduce such risk and consequences, along with the benefits that may be available to a child through that relationship. These considerations may, and often will, point in different directions. It is the synthesis of those factors that determines whether time with that person presents an unacceptable risk or, in other words, is in the best interests of the child.
Family violence is a serious matter. There is, however, a spectrum of family violence and of the risks associated with it. In this case there is not a significant risk that the child will be the subject of violence. There is a risk that she may be exposed to family violence, in particular upon the Mother. The nature of that violence appears to have been episodic and, within the range of family violence, at a low level of intensity. The frequency also appears to have diminished, and factors have been identified to reduce the risk in the future.
A particular factor is the impact the proceedings have had on Mr Pascoe so far by virtue of his exclusion from his home. Those proceedings have taken a heavy toll, sufficient to have caused him to make changes both to his alcohol use and anger management. These may not be bullet proof, but show a trend toward less risk.
The extent of the risk means that the regime governing where the child should live, and the time that she will spend with each parent, needs to give the child some protection by reducing that risk. That reduction in risk needs to, as much as is consistent with the child’s best interests, provide the child with the benefits of time within the Mother’s household. Those benefits are enhanced by the time being without supervision, although a lack of supervision also reduces the current level of protection.
By the child living primarily with her Father, the risk of time in the Mother’s household is reduced, both because of the reduction in time in that household, and by virtue of the level of scrutiny that the Father will be able to bring to bear under those circumstances.
That reduction in risk, coupled with the steps taken by the Mother and Mr Pascoe (despite the uncertainties attached to those steps), allied with limitations on the consumption of alcohol, when considered in the light of the benefits of unsupervised time, mean that the risk presented by unsupervised time in the household of the Mother with Mr Pascoe present, is not unacceptable while under the circumstance that the child lives primarily with the Father. As noted above, this will give the child greater benefits within the Mother’s household.
Notably, each party sought substantial time in the event the orders they seek are not made. For the Mother it was suggested that a 6/8 Order favouring the Father could be made if the child was ordered to live with him. The Father suggested equal shared time rather than orders that the child live with the Mother and have each second weekend and off week time with him.
Such Orders would provide the child with benefits of relationships in both households. However, they also expose the child to too great a degree to the potential violence in the Mother’s household.
Other matters of significance arise. One is the relationships between the child and her sisters. The Single Expert regarded this as the primary matter leading to her conclusion that orders should be made to see the child primarily living with her Mother, despite a lack of direct assessment of those relationships. Despite this lack of direct assessment, these constitute important long-term relationships for the child and so it is important that the child spend significant time with her sisters.
It should also be recognised that the child’s exposure to Auslan in the Mother’s home is what will provide her with proficiency to be able to communicate and more fully enjoy the relationship with her Mother.
In considering all of these matters, the background of the deficiencies in the parties’ capacity to communicate and cooperate must be recognised.
That lack of communication and cooperation points away from an Order for equal shared parental responsibility, as the requirements for cooperation in decision-making would be unable to be met, given the current difficulties between the Mother and the Father.
Orders should be made for the child that will allow her to have substantial time with each of the important people in her life, while reducing her exposure to risk and at the same time seeking to reduce the problems associated with the lack of communication.
The Orders will provide for the child to live with her Father, and to spend time with her Mother (and therefore with her siblings and Mr Pascoe) on an alternate weekend basis, from after school time Friday until school time Monday. This arrangement limits the risk of exposure to family violence and takes into account the practical difficulties that may be caused by the Mother’s contemplated move to F Town and the child’s looming commencement of school.
The fact that the child will be living primarily with the Father means that it is appropriate, in the context of the communication difficulties, for him to exercise sole parental responsibility. He will still be obliged to ensure that the Mother is kept fully informed of matters relevant to the child’s schooling and health.
Noting the chequered history between the parties, which currently sits at an all-time low but which has previously seen cooperation, the parties will be at liberty to depart from these Orders by agreement in writing. Circumstances may change, the parties may again find that they can cooperate and they may conclude that different arrangements will work for the child. In such an event they may depart from the arrangements catered for in the Orders.

I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 21 May 2018.

Associate:

Date: 21 May 2018

[2018] FamCA 350

21 May 2018

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Injunction

Procedural Fairness