PAULSEN & TISHER

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAULSEN & TISHER

[2021] FCCA 1582

Catchwords:
FAMILY LAW – Parenting – whether a child aged 13 should continue living in a week about arrangement or should live with her mother and spend alternate weekends with her father – where the child has lived in shared care arrangement for most of her life – where the child wishes to continue to live week about – where there is a considerable risk that the mother will not be able to manage the child’s behaviour if this arrangement is changed – where the mother’s allegations about the child being at unacceptable risk of harm or at unacceptable risk of educational neglect in the father’s care are not made out – parties to have equal shared parental responsibility and week about to continue.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA

Applicant:

MS PAULSEN

Respondent:

MR TISHER

File Number:

NCC 1989 of 2019

Judgment of:

Judge Terry

Hearing dates:

18 & 19 May 2021

Date of Last Submission:

19 May 2021

Delivered at:

Newcastle

Delivered on:

21 May 2021

REPRESENTATION

Counsel for the Applicant:

Mr Mueller

Solicitors for the Applicant:

Thiyama-Li Family Violence Legal

Counsel for the Respondent:

Mr Doupe

Solicitors for the Respondent:

Rice More & Gibson Solicitors

Counsel for the Independent Children’s Lawyer:

Mr Guyder

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW Tamworth

ORDERS

All existing Orders concerning X born in 2008 (“the child”) are discharged.
The parents shall have equal shared parental responsibility for the child.
The child shall live with the parents as agreed or, failing agreement, as follows:
(a)During school term:
i.Week 1 commencing Monday 24 May 2021 from after school until the commencement of school Monday 31 May 2021 and each alternate week thereafter with the mother.
ii.Week 2 commencing Monday 31 May 2021 from after school until the commencement of school Monday 7 June 2021 and each alternate week thereafter with the father.
(b)During Terms 1, 2, 3 school holidays:
i.From after school on the last day of the school term until 3.30pm on the day which marks half way with the Respondent Father.
ii.From 3.30pm on the day which marks half way until the commencement of school on the first day of the school term with the Applicant Mother.
(c)For half of the Term 4 school holiday period with each parent as agreed between the parents but failing agreement as follows:
i.In 2021/2022 and each alternating year thereafter with the mother for the first fortnight and with the father for the second fortnight and alternating thereafter.
ii.In 2022/2023 and each alternating year thereafter with the father for the first fortnight and with the mother for the second fortnight and alternating thereafter.
(d)At Christmas:
i.In even years, from 5.00pm on Christmas Eve until 12.00noon Christmas Day; and
ii.In odd years, from 12.00 noon Christmas Day until 5.00pm on Boxing Day.
(e)If Father’s Day falls when the child is not already spending time with the Father, from 5.00pm on the Saturday before Father’s day until 5.00pm o Father’s day;
(f)If the child’s and the Father’s birthday fall when the child is not already spending time with the father, then for a minimum of two hours if the birthday falls on a school day and a minimum of four hours if the birthday falls on a non-school day as agreed or, failing agreement, commencing 3.30pm.
The Father’s time pursuant to Order 3 shall be suspended if Mother’s day falls on a weekend when the child is not already spending time with the Mother, from 5.00pm on the Saturday before Mother’s Day until 5.00pm on Mother’s Day.
If the child’s and the mother’s birthday fall when the child is not spending time with the mother, then the father’s time pursuant to Order 3 shall be suspended on the child’s and the mother’s birthday for a minimum of two hours if the birthday falls on a school day and a minimum of four hours if the birthday falls on a non-school day as agreed or, failing agreement, commencing at 3.30pm.
For the purposes of facilitating Orders 3, 4 and 5, changeover shall occur as agreed or, failing agreement, at school on school days and if not a school day all changeovers occur at Town K Police Station.
Each parent encourage and facilitate telephone communication between the child and the other parents whilst the child is in their care as requested by the child by no less frequently than once every 3 days.
Each parent keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within 7 days of such change.
In the event of child illness or emergency, the parent with whom the child is with contact the other parent forthwith and inform them of the matter.
Each of the parties, their servants and agents be hereby restrained by injunction from:
(a)Denigrating the other party;
(b)Using illicit drugs in the presence of the child or for 24 hours before or during any time when the child is spending time with them or living with them and must not permit a third party to use illicit drugs in the child’s presence.
Both parents be permitted to liaise directly with the child’s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the child’s progress.
Each party is at liberty to attend at the child’s school for the purposes of any function or activity normally attended by parents.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1989 of 2019

MS PAULSEN

Applicant

And

MR TISHER

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This matter involves a dispute about parenting arrangements for X, who is 13 years old.
Her parents separated when she was about four and after she started school she lived with her parents in a shared care arrangement which involved a split week, and this continued for about the next six years.
There was a brief pause in her time with her mother following an incident in May 2019 but on 19 July 2019 orders were made by consent for X to live in a week-about arrangement from Monday to Monday. That arrangement is still in place and X’s wishes it to continue.
The mother does not consider that this would be in X’s best interests. She proposed that X live with her and spend time with the father each alternate weekend from Friday to Sunday, on one afternoon after school each week and for half of the school holidays.
The mother said that X was suffering educational neglect when she was with the father. She was also concerned that the father was delegating some of her care to her brother Mr B, who is 22, and who the mother said was not a fit and proper person to be caring for her.
The mother said that there were concerns that the father and Mr B may be having inappropriate relationships with under-age girls or supplying cannabis to them. She relied on a Crime Stoppers report raising those issues which I will refer to later in the judgment.
The mother also raised a number of other concerns about the father’s parenting capacity.
The mother acknowledged that X may be unhappy if an order was made to end the equal time arrangement, but said that her safety had to be prioritised. She said that she had accessed support and counselling to assist her to manage any issues which arose and that X had a strong bond with her three young siblings who were in the mother’s care and would hopefully settle after this order was made.
The mother sought an order for sole parental responsibility and an order that the father be restrained from leaving the child in the care or control of Mr B.
The father proposed that the existing arrangement continue, notwithstanding that he had concerns about the mother’s parenting capacity, her ability to manage X’s behaviour without resorting to threats and violence and the extent to which Mr C, a man with a number of drug-related convictions and who had reportedly been violent to the mother, remained in the mother’s life.
The father said that X loved her younger siblings and wanted to spend time with them and he did not want to stand in the way of that happening, and for that reason, notwithstanding his concerns, he proposed a continuation of the week-about arrangement.
The father denied that he was neglecting X’s education or that Mr B was unfit to care for her while the father was at work. He sought an order for equal shared parental responsibility.
The Independent Children’s Lawyer proposed that X’s wishes be respected and that she continue to live in the week-about arrangement. Counsel for the Independent Children’s Lawyer said there were historical issues with both parties but the greatest risk of harm to X would arise from her decamping from the mother’s home if an order was made that she had to live there and spend only two nights a fortnight with her father.
The Independent Children’s Lawyer supported an order for equal shared parental responsibility. As it was put to the family report writer, the parents’ capacity to cooperate and make joint decisions was a bit fragile but they had managed to make appropriate decisions for X in the past when major long-term issues had arisen, and the Independent Children’s Lawyer submitted that an order for equal shared parental responsibility was appropriate.

The evidence

The evidence in the case was given by each of the parties. Neither of them called any other witnesses. A family report was prepared by Ms D a Regulation 7 Family Consultant, and all of the witnesses were cross-examined.
I had some concerns about the evidence of both parties; concerns that they were not always telling me the exact truth or perhaps telling me a sanitised version of what might have happened in the past or being economical with the truth.
My concerns in that regard will become obvious when I discuss some of the discrete issues in the case, but I will just mention a couple of them.
Both parents said that they were not really guilty of the offences they were convicted of; in the father’s case, an assault on the mother, and in the mother’s case, making a false statement to the police.
a)The mother said she was not living with Mr C, and that may currently be true or it may not, but X has made contradictory statements about it in the past.
The mother denied that her new baby born in 2021 was Mr C’s child but declined to name that child’s father, and another concern was that the recent reports to Crime Stoppers, which the mother denied making, contained information very similar to some of the evidence she gave in her affidavit and some of the things she said to the family report writer.
The father had perhaps a greater appearance of frankness, and he actually gave some evidence that he was not required to give and made some admissions against interest. For example he mentioned a couple of minor assaults on the mother during the relationship that the mother did not mention and he revealed that he had another child that the mother did not mention. However I do have some concerns about his evidence as well.
I do not consider that either of the parents sat down and deviously thought about not telling the exact truth, rather I suspect that they both wanted to present themselves in the best light and that as a result I might not have given full and frank information about everything that occurred in the past.

Background

The mother and father were in a relationship from 2006. The mother said that the relationship ended in October 2012, the father in January 2012. Nothing turns on that.
There was a dispute about whether they ever lived together in the same residence. They gave contradictory information about that, with the father saying they did and the mother saying they did not. Some of the subpoena material supports one version of events and some supports the other. I cannot make any findings about that dispute and nothing turns on it now.
X, born in 2008, is the parties’ only surviving child. The mother had two miscarriages, and the parties’ daughter E was born with severe cerebral palsy and died at five months and their son F was stillborn. The loss of those children was a significant grief to the parties.
The father has two older children, Ms G, who was born in 1999, and Mr B, who was born in 1997.
Ms G lived with the mother in Town H after the father and her mother separated, whenever that might have been, and she has not spent time with the father since 2012. I will refer to that again later because that happened in connection with some allegations that I need to consider.
Mr B lives with the father and appears to have done so since he was about six or seven, which would put it at a time prior to the father commencing a relationship with the mother. Mr B has not spent any time with his mother for about five years.
The father mentioned in his affidavit that he had a son, Mr J, who was born, on my calculation, in about 1995. He said he had spent no time with him since he was a very young baby. He said that Mr J had bonded with his stepfather and his relationship with Mr J had never revived, although apparently Mr J is living in Town K.
The mother has three younger children: L, born in 2014, M, born in 2015, and N, born in 2021.
L and M’s father is Mr C. The mother denied that he was N’s father. I cannot make a finding about that. There is reason to be suspicious about it because Mr C still calls round to the mother’s home from time to time, and the mother declined to name the man she said was N’s father.
The focus of this matter however is not on any of those children but on X, and as I mentioned, after she started school in 2013, she began spending time with the parties in pretty much an equal time arrangement with a split week. She lived with the mother from Monday afternoon to Thursday morning, and with the father from Thursday to Monday. The mother said this was imposed on her by the father. The father did not agree, but regardless of how it came about it was in place for the next six years.
On 8 May 2019 the father reported to police that the mother had verbally abused him and threatened to flog X. The mother agreed there was an incident that night. She agreed that she called the father a four-eyed cunt and she agreed that she was having trouble managing X’s behaviour but she denied threatening to flog X.
I am inclined to accept the father’s evidence about that incident because not only did the father refer to what the mother had called him, he also referred in his affidavit to calling her a vile name, including the word “slut”. His admission about responding with some quite vile verbal abuse has the appearance of frankness about it, so I am inclined to believe that he did hear the mother threaten to flog X, and it would not necessarily be inconsistent with other evidence I have heard.
Whether of course the mother would ever have done it is something else but I am inclined to accept the father’s evidence that it was said.
The father reported the incident to the police and after X next came into his care he retained her.
She spent a little bit of time with the mother after that. Something was organised on Mother’s Day and on a couple of other days, but there does not appear to have been regular time for the next couple of months.
The police applied for an ADVO for X’s protection. When that matter went to Court on 10 July 2019 it was resolved by the mother agreeing to give an undertaking in terms of condition 1 on the ADVO and the ADVO application was withdrawn.
On 1 July 2019 the mother filed an application for parenting orders and it is that application which is currently before me.
The mother’s application was given a first return date of 19 July 2019 and on that date the parties agreed to an order that X live in a week-about arrangement.
On 19 November 2019 a Child Inclusive Child Dispute Conference took place. X told the family consultant that she was happy with the week-about and that order was not altered.
The mother was not happy about it though, which was her prerogative, and the Court ordered the preparation of a family report. The family report writer did not make a clear recommendation and in the end the matter was listed for trial.

The parties current circumstances

The mother and father both live in Town K and they are currently living about two and a half kilometres from each other.
The mother said that she lived in her home only with L, M and N, and with X when she was with her. She denied that Mr C lived there. She said he came to the house to pick up L and M to spend time with them.
The father is suspicious that Mr C is commonly resident in the home and I can understand why he would have that suspicion. X told the family consultant at the Child Inclusive Conference that Mr C was living there. However she told the family report writer in July 2020 that he was not and there is no evidence which would allow me to make a finding that he does more than visit.
How often he visits and whether he stays over I just cannot make a finding about.
The father lives with Mr B, and X when she is with him. In her affidavit the mother referred to some other people she said were living in the father’s house but this was not put to the father in cross-examination or raised as an issue during submissions.
X attends Town K Secondary College. She commenced year 7 in 2020, the COVID year, when there were some disruptions to schooling, and the family report writer, who saw her in the middle of that year, commented that she was struggling to adapt to attending high school.
X clearly finds academic work challenging and she has experienced some bullying and has got into some fights and had two short suspensions this year.

X’s best interests

Any orders I make about X must be determined by treating her best interests as the paramount consideration, and to determine her best interests I must have regard to the matters in section 60CC (2) and (3) of the Family Law Act.
Section 60CC(2) contains the primary considerations and section 60CC(3) the additional considerations and I am going to start, as I often do, with the additional considerations, and I am also going to start by ruling some out, because some of them are just not relevant to the matters I have to decide.
One that is not relevant is the extent to which each party has taken or failed to take the opportunity to spend time with the child, make decisions about her or communicate with her. Both parents have always been very keen and involved parents.
Child support was not raised as an issue during the hearing and practical difficulty and expense is not an issue. The parents currently live quite close to each other, but even when the father was living further away and was living out on the O Street, that did not prevent regular time occurring between X and each of her parents.
The attitude to the child and responsibilities of parenthood is something I can consider, but in this particular case it is not a consideration that would assist me.
The first of the considerations that does assist me is the views of the child and the weight to be given to her views.
X has consistently said for two years that she is happy with equal time. She told the family consultant at the Child Inclusive Child Dispute Conference in 2019 that she was content with the week-about arrangement that had commenced in July that year. She told the family report writer in July 2020 that she was content with it. The family report writer said as follows:
When asked for her views regarding the current week about arrangement X said; “it’s good because if I live with dad I am not quite sure if I’ll get to see L and M.” She said her lack of certainty was; “because mum said if I move out I wouldn’t be able to see L and M.” X described herself as; “close” to L and M.[1]
[1] Family Report paragraph 135

On 20 November 2020 X told the school counsellor that she wanted to live with her father but the mother had said she would not let her see the younger children if she did, and implicit in that is, again, an acceptance of living in the equal time arrangement.
The Independent Children’s Lawyer told the Court during the hearing that X’s current view was that she wanted the week-about to continue.
The father also said that was what X wanted and the mother did not suggest that the child was expressing a different wish. Both parents told the family report writer in July 2020 that X was happy with the current arrangement.
There is no doubt that X’s view is that the current arrangement is working for her and she wants it to continue.
I have to consider, of course, the weight to be given to her views. She is 13, so she is not mature in the sense of being able to make every good decision for herself, but as the family report writer said during cross-examination, children of that age are becoming increasingly firm that they want their views to be heard and considered. They want to order the world the way they want it ordered, and it can be difficult to make children of that age do things they do not want to do.
X’s views have been consistently expressed over a period of two years, and I am satisfied they are genuinely held, so from those perspectives her views should be given weight, but they are only one matter I have to consider in order to determine what to do and her safety and proper care have to be weighed into the mix.
I must consider the nature of the relationship of the child with each of her parents and any other relevant person.
X has a good relationship with both of her parents, with some reservations to that.
The mother did not suggest in her evidence that X had a poor relationship with the father and X has never expressed dissatisfaction about living with the father. At the family report interviews she expressed a lot of pleasure in the things that they did together. The family report writer said as follows:
X said she enjoys everything about living with her father. She particularly enjoys going fishing with him. She said she had no problems or worries at her father’s home.[2]
[2] Family Report paragraph 137
The family report writer said that X seemed a bit flat when she was with her father that day, but she was also a bit flat with her mother, if you read the next section, and she was unwell that day. I do not have any doubt that the child has a good relationship with the father.
In some respects X has a good relationship with her mother but there have been some issues in their relationship. The father maintained that was the case, and during an interview with the school counsellor on 20 November 2020 X complained about some things the mother had said to her, which I will refer to again later in the judgment.
X’s relationship with the mother is not so poor that she is not wanting to live with her in the week-about arrangement but she does not have quite the same easy relationship with her mother as she does with her father.
X has a very good relationship with her little brother and sisters and she has a good relationship with Mr B as well.
The next thing I have to consider, after skipping over the ones that are not relevant, is the likely effect of any change in the child’s circumstances.
The mother proposed a significant change. I cannot make a finding about whether that would be overall beneficial or detrimental to X until I make a finding about the remaining section 60CC(2) and (3) matters.
The next relevant consideration, after skipping over practical difficulty and expense, is the capacity of each parent to provide for the needs of the child, including her intellectual and emotional needs.
Quite a lot of issues were raised under this heading in relation to both parents, so it is going to take a little while to work through those.
The mother has three younger children and there do not seem to be issues with her care of those children. There is no Departmental involvement. L has a very good school attendance record. However some issues were raised about the mother which have to be weighed into the mix, perhaps weighed in and then in some respects dismissed or I will have to say I cannot make a finding about them.
Both of the parents in this case have historically used cannabis. The mother denied that she had ever used it in front of the children. I could respond, well everybody says that. They say they go into the laundry or the shed to do it, which does not necessarily make it any better. However the mother said that she was not currently using cannabis and she produced clean drug test results in December 2019 and 27 February 2020.
The father said that on 7 January 2021 X sent him a photo of cannabis which she said she had found in the mother’s house. The mother was not asked about that in cross-examination but I cannot make any findings about what it means. He also alleged that X told him the mother would lock herself in her room and come out with red eyes. The father deduced that this meant she was using cannabis but it could have other meanings.
I cannot make a finding on the state of the evidence that the mother continues to use cannabis.
Another concern which was raised about the mother’s capacity to parent overall is the presence of Mr C in her life. Mr C has a number of convictions for drug offences. The father said that X continued to tell him that Mr C came to the house, that he sold ice and that people came to the house to get drugs.
I cannot place any weight on those statements. X may have said things like that but whether she was referring to the present or the past, or whether she was saying things to pursue her own agenda about where she lives rather than because they were necessarily completely true, I do not know.
X also told the family report writer that she had seen Mr C assault the mother and grab her by the throat.
The mother vehemently denied that Mr C was doing drugs at her house. I do not know that she denied his drug use generally. That would be difficult, given his history. She vehemently denied that he had assaulted her.
I cannot make any findings, on the balance of probabilities, about what might have gone on in that relationship. I cannot make any findings about the extent to which Mr C is currently coming to the mother’s house, but he is a person of concern. People get themselves into these situations, but it does create some potential risks of harm.
However the father did not want to prevent X spending time in the mother’s home as a result of that issue and that issue alone would not mean that I would not make the orders the mother was seeking.
One thing that might cause me to do that though is the concern about the mother’s capacity to handle X’s behaviour.
An ADVO was taken out against the mother for the protection of X in May 2019 and I accept the father’s evidence that the mother threatened to flog X on that occasion.
The ADVO matter was settled in July 2019 with undertakings.
The father alleged that prior to that X had made many complaints about the mother hitting her with a thong or pulling her hair but that this stopped after the undertaking was given.
I cannot rule out the possibility that that sort of thing has happened for X in the past. It is clear from the mother’s own evidence that she has had some problems managing X’s behaviour. She said that X was headstrong and knew what she wanted. When she was asked about what might happen if the Court made the orders she wanted she agreed that X might just walk out of her house, and she then added:
She has done that before when I would not let her do what she wanted.
The mother was then asked what she would do about that and she said she would go after her and try and talk to her.
To an extent I have some sympathy with the mother. She told the family report writer that week-about was very difficult for her because in the week X was with the father she got everything she wanted, including $20.00 a day for lunch, and then she came to the mother, who had two other children at the time of those interviews and less income to spread around, and she talked about the problems that created for her.
The parties also obviously have different parenting styles.
The mother has certainly had difficulties managing X’s behaviour, and I am satisfied that she has sometimes gone to the extent of threatening her, for example threatening to flog her, and on 20 November 2020 X told the school counsellor that the mother had suggested to her that she should kill herself – not that the mother would have meant that, but X found that very harsh and unkind and hurtful.
I am satisfied the mother does have a propensity, perhaps in frustration, perhaps through not having any other means to manage the situation, to speak in that way to X, and it is not helping in terms of X feeling happy and settled in the mother’s care.
That causes me to be concerned about whether putting X in the mother’s primary care and restricting her time with the father to two days a week would actually work for X. X is likely to act out if that happens, and it is really open to question whether the mother is going to be able to handle the situation if she does.
I know the mother hopes she will be able to and the mother is having some counselling that she hopes will support her, but I do have some concerns that the mother may not be able to handle the situation if X is extremely unhappy about the order the Court makes.
The family report writer was sympathetic to the mother. I am not going to discuss family violence now, I will discuss it shortly, but there was family violence in the relationship perpetrated by the father some time ago and the family report writer said as follows:
Diminished parenting capacity for adult victims of family violence is not uncommon in those who have been victimised by sustained and prolonged abuse, and may lead to substance abuse, depression and anxiety, which can compromise parenting. In this matter, the Family Consultant regards the mother’s marijuana use and mental health struggles as likely to be indicators of the stress and trauma she experienced as a victim of family violence. The writer is of the view that the mother’s experience in the relationship with the father has also heightened her vulnerability to be the victim of family violence in other relationships.
The information available supports the mother’s parenting of X is likely to have been compromised in the past. It is noted, however, that during the Court proceedings the mother has demonstrated her drug free status and has provided evidence to the Court that she has sought appropriate therapeutic treatment and intervention for her mental health issues. Further to this the mother has proven her willingness to engage with support services such as Town K Family Support Services. It is of some concern, however, that X reported the mother has threatened to harm her on a number of occasions.[3]
[3] Family Report paragraphs 151 & 152
However whether one has sympathy for the mother or not, the reality is that the problem with her capacity to manage X’s behaviour exists and has been there for years, and it is open to question whether the mother is going to be able to handle the situation it if X acts out if an order is made that X does not want.
There were quite a few concerns raised about the father’s parenting of X, and one of them was about her school attendance while in the father’s care.
The mother included in her affidavit a detailed table of the days X had missed over almost her entire schooling history, except for a couple of years where the records were not available, and she strongly pressed the Court to find that the child had had more absences in the father’s care.
That finding is open to the Court. The father admitted that when he was living out on the O Street, X often missed the bus because it left extremely early and she did not get up in time to catch it. He also told the family report writer that there were occasions when his pain medication made it a bit difficult for him to get going.
There have been more absences in the father’s care than the mother’s and the family report writer stressed that it was damaging for the child if she did not attend school regularly. She said that it amounted to educational abuse.
The mother said that she only lived 750 metres from the school and X could walk to school from her home. She said that if X lived with her the Court could be absolutely assured that she would attend every day unless she was sick or there was some other good reason for her not to attend.
The mother pointed out that L had very good school attendance and pressed very strongly for the Court to consider changing the child’s living arrangements because she was better able to attend to the child’s educational needs.
The mother gave evidence in her affidavit about becoming involved with caseworkers at Town K Family Support Services to learn strategies to assist X with her learning, because X’s issue is not just school attendance but struggling with the academic case load.
Although X has had more absences in the father’s care, he is trying very hard at the moment to make sure that she gets to school every day the school is open. He said that he currently had a job as a farmhand. He described the system he had in place to make sure that X got up to get the bus and get to school, and she has only had one unexplained absence in his care this year.
He also pointed out that the school, being a high school, immediately texted if X was not at school and that he attended to that issue immediately, and I accept that. When he was asked about the past absences he said one of the reasons he moved into town was to try and improve that situation of X missing school.
During submissions the Independent Children’s Lawyer pointed out that the child’s absences over the years, while probably a little higher than those of other children, had not been excessive to the point of involving a truancy officer, although what often happens now is that there is a referral to the Department of Communities and Justice and the police. They go round looking for children who do not attend school. There has been no involvement of that sort in relation to X and the Independent Children’s Lawyer’s position was that the Court could not find that X’s education would be under threat if she lived with the father.
The family report writer said that in order to consider the parents’ respective capacities to get the child to school it should have a look at L’s attendance record, and it is very good, but there is information in the tendered material about Mr B’s school attendance and it was very good as well. There are some very positive reports about Mr B and his attendance to his schoolwork and his attendance at school.
In broad general terms it may be that the mother, who is not working and who lives close to the school, would have a better chance of making sure that X attended school every day, but on the other hand X’s actual attendance at school does not seem to be the problem at the moment. The problems are that she is struggling with peer relationships and with her academic work. Those things need to be attended to but I cannot be satisfied that the mother is better able to do that than the father. Another aspect of that is that if X is very unhappy with a change to her living arrangements and she acts out as a result, her situation at school may rapidly deteriorate, not improve.
Another issue raised by the mother was Mr B’s presence in the father’s home but I cannot find that there is any reason to be concerned about Mr B.
Mr B is 22 and is on a disability support pension. He has had longstanding issues with ASD or ADHD or both but there was no evidence that his behaviour was an issue in the father’s home. Mr B has used cannabis in the past but there was no evidence he continued to do so.
Mr B’s name came up in the Crime Stoppers report. The mother said that the Court should be very concerned about the fact that somebody had recently made an anonymous report to Crime Stoppers which suggested that the father and Mr B were seeking out under-age girls and giving them alcohol. I think there may have been some suggestion that X was occasionally in the car.
The father’s case was that the mother herself had made the report.
I cannot be sure if the mother made the report or not but for the following reasons I am suspicious that she may have.
In paragraphs 15 and 16 of the mother’s affidavit she alleged that when she was 18 she was given alcohol, money and marijuana and a motel room was booked, which was very similar to the things that were reported to Crime Stoppers.
The following also appears in the family report:
The mother said she met the father; “through a couple of girls who knew him, he was giving young girls money and cannabis for sex and that was how I met him, when I first came back to Town K.”[4]
[4] Family Report paragraph 77
This is very similar to the information that appears in the Crime Stoppers report.
I do have some suspicion that the mother may have either made or been behind the report to Crime Stoppers report and I am not convinced that anything that is in the Crime Stoppers report should cause me to be concerned about the father’s parenting capacity.
The father’s medication was raised as an issue. He is taking Tramadol which is a very strong pain-relief medication and the dosage has been increased. The father said that this had to happen from time to time because he became used to a certain level of medication and it ceased to do its work and then the amount has to be increased.
The mother said that in her experience the medication made the father sleepy and the father agreed with the family report writer that this did sometimes occur. However he is currently employed five days a week and none of the evidence available to me suggests the father’s Tramadol use is impacting on his parenting capacity.
Cannabis use is also an issue with the father. He has used cannabis over quite a number of years. He had a drug driving charge in 2008, was charged with possession in 2013 and had another drug driving charge in 2017 at which time he lost his licence.
The father said that he had ceased using since then and when I asked him why, he said it was because he did not want to lose his licence again.
There is no evidence that the father continued to use cannabis. He produced two clean urinalysis results and he did a hair test on 28 January 2020 which was clean. The mother told the family report writer that she did not believe that cannabis use was not a current issue for the father.
The mother raised a matter which I have put down here under the heading “tech concerns”. She was concerned that the father had allowed the child to have TikTok on her device and that he did not put parental controls in place.
That issue is not sufficient to cause me to make one decision rather than another about where the child lives but I would urge the father to carefully consider controlling the child’s internet use. TikTok is a fun program that children like but it has been used, according to things you read in the news, as a vehicle to abuse children or to enable people who should not be doing so to hook up with children.
The father needs to be a little more careful about ensuring that he keeps a watch on X’s internet use, because there are lots of apps and websites that can be used by people, paedophiles, to contact children and children need protection from that. Just because all of X’s friends are using it does not necessarily make it a wholly desirable site that does not need any control.
I have discussed all those potential concerns about the father but it is important to note that when X was seen at the child inclusive conference and at the family report interviews she presented as a well looked after, confident child, so there are obviously positives about the father’s parenting capacity, just as there are about the mother’s.

I observed during submissions that the father came across during cross-examination as a knowledgeable and caring parent. He was asked about X’s asthma and her dental treatment and he gave very informed answers. He was asked about the issue of bullying and fighting and he was knowledgeable about what was happening with the school.
There is also evidence in the tender bundle about him taking X for speech therapy years ago.
It is also worth noting here, because I commented about the mother’s capacity to handle X’s behaviour, that neither the mother nor X made any complaints about the father physically disciplining or excessively disciplining X or having any difficulty managing her behaviour.
I must have regard, if the child is an Aboriginal child, to the child’s right to enjoy his or her Aboriginal culture, including the right to enjoy that culture with other people who share that culture, and the likely impact of any proposed parenting order under this Part will have on that right.
X is “P” through her mother. It is a very important aspect of her life. However this is not a case where living with one parent rather than the other should be preferred because it will better enable X to connect with her culture. If X lives in a week-about arrangement she will be able to do that during the time she is with the mother.
The father was questioned about this issue and he responded, “Anything to do with her culture, I encourage.” He said he encouraged her to go to what he called “everything Aboriginal”, and he said he was not a prejudiced person. There is nothing to suggest that he is and the mother did not run a case that the father was racially prejudiced.
The father was asked if he was Aboriginal. He said he had been told by a relative that he may have some Aboriginality but he had not checked it out.
I must consider any family violence involving the child or a member of the child’s family.
That has a number of facets in this case.
The father was charged with assault occasioning actual bodily harm on 14 June 2008 after the mother complained that the father had punched her in the side of the face at a tavern. She said that as a result she slipped over and suffered a facial injury.
The father pleaded guilty and was convicted.
As is so common in this Court, the father denied that he had actually assaulted the mother. He said that she had slipped over and bitten her own lip and he made some excuses for why he pleaded guilty. Nevertheless he was charged and convicted and I do not accept his denials about what happened on that occasion.
The father was charged with assault and stalk/intimidate in June 2011 arising out of a complaint by the mother. He pleaded not guilty and during her evidence before the magistrate the mother admitted that she had made up the allegations. As a result the father was found not guilty and the mother was charged with making false statements. She was convicted and placed on a section 9 bond.
The mother said she was not guilty of that offence. She set out in her affidavit what she alleged the father had said to her, the same allegation she apparently made to have him charged, and said that he actually had said it and suggested she was wrongly convicted. Well I am not going to go behind that conviction either.
The parties both mentioned some assaults on each other when they were living together so there was no doubt there was some family violence.
The father admitted an assault the mother did not mention. He said that in 2009 he hit her with an open hand. He said he felt bad and apologised.
The father alleged that the mother was violent and abusive to him and he described an incident where she hit him in the back after chasing him out of the house with a washing basket. The mother more or less admitted to the family consultant that this occurred. The abuse the mother dealt out to the father on 8 May 2019 also comes within the definition of family violence and that was not denied by the mother.
Both parents made some additional allegations about family violence during the relationship during the family report interviews. The family report writer said as follows:
The father said the parents started to argue more than usual after 2010 and the mother became controlling of him. He said; “she would always ask where I was or get the shits if I would want to go somewhere, even if I asked her to go, even if she didn’t want to go. For the next couple of days you’d pay for it. She’d just try and pick arguments or just ignore you and that. I thought that’s fine I can put up with that, I just used to go to my mother’s or my mate’s place. I used to say to her ‘if you don’t talk about things, nothing will get resolved’ and she wouldn’t have a bar of it.” The father said as a consequence of the general disharmony in the relationship the mother evicted him from the home on about ten occasions. He said; “I wanted to put my name on the house lease, and she would never ever do it. It meant she had the control, if we had a disagreement, she would just tell me to get out and that I had no right to be there.” The father said the mother physically assaulted him on one occasion and was persistently verbally abusive towards him. He said; “she has threatened to burn my car and truck, or threatened to have me bashed, but I didn’t worry about it. There was no point reporting it to police. I would have been the laughter of Town K. That’s why a lot of women get away with it. You are going to be the laughing stock if you say the women is bashing you. That’s why there is no reports of it.”
The mother described the father as engaging in a persistent pattern of behaviour towards her which included verbal abuse, intimidation, physical abuse, sexual abuse, and controlling behaviour. In relation to the alleged verbal abuse towards her by the father, the mother said: “I got called a bad parent, a slut, that I was a murderer from killing my own babies and I was just a no good cunt.” The mother stated this pattern of behaviour has continued to some extent post separation, describing the father as threatening, intimidating and stalking her.
In her interview on 1 July 2020 the mother alleged the father had kicked in the front screen door of her home, smashed her belongings and damaged the walls of the home. In his interview on the same date the father stated; “I did not damage the screen door. I did put two holes in the walls, but I fixed them. I got gyprock and fixed it.”[5]
[5] Family Report paragraphs 79 - 81
These allegations were not explored at trial and exploring them would not have helped me.
There is no doubt that there has been some family violence in the parties’ relationship and the family report writer said as follows:
On either parent’s version of events, X’s earliest experience has been of being parented in the context of family violence and parental drug abuse. Given this it seems likely she has experienced one or both of her parents as emotionally unavailable due to their personal experience of family violence and drug use and this is likely to have had a salient impact on X’s early development. Following separation X has resided in a shared care arrangement in the context of high parental conflict which is likely to have further impacted on her development and emotional wellbeing. It is central to X’s current and future wellbeing that into the future she is provided with caregiving which prioritises her safety and is focussed on her needs. There is dispute as to which parenting arrangement is most likely to provide this for X.[6]
[6] Family Report paragraph 146
There was an allegation that Mr C had been violent to the mother. I cannot make a finding about whether that occurred. It would be unsafe for me to do so based simply on something X said which the mother denied.
While there has been family violence between the parents it is important to note that the parents have been separated since X was about four, so going on for 10 years, and apart from the incident on 8 May 2019, which is capable of coming within the definition of family violence in the form of verbal abuse, it is not a situation where there has been ongoing family violence between them to which the child has been subjected.
I must consider whether there have been any family violence orders.
The father’s report to the police in May 2019 resulted in a short-term ADVO being made but going into that issue will not assist me.
I finally have to consider whether it is preferable to make the order least likely to lead to further proceedings.
An order that the child’s living arrangements be changed as the mother proposed is the order most likely to lead to further proceedings. There is the considerable risk that the mother will not be able to handle that situation and that the child will rebel.
The primary considerations are the benefit to the child of having a meaningful relationship with both of her parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
X has a meaningful relationship with both of her parents and she benefits from that.
Neither parent was able to identify much good about the other at the family report interviews. That was referred to by the mother’s counsel in the mother’s case outline document.
However a saving grace in this situation is that there is no evidence of the father ever badmouthing the mother, so X’s relationship with the mother is not likely to be undermined if she continues to live in the current arrangement. The father is not a maligning or alienating parent.
X has complained about the mother badmouthing the father, but she has moved well past allowing that to undermine her relationship with her father. It is not a centrally important consideration in the matter except to say that X’s relationship with her mother could be undermined if I made the orders the mother wants and the child strongly objected to being where she did not want to be.
I must consider the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
I cannot find that Mr C’s presence in the mother’s household is likely to expose X to that.
Some of the things the mother has said to X could amount to abuse. Threatening to flog her is arguably something that could be viewed as family violence perpetrated against the child and therefore abuse. What X told the counsellor the mother had said on 20 November 2020 also could come within that category.
I cannot rule out the possibility that those things might happen again in the future. The mother said that she had been having some counselling to assist her to manage her anxiety so that she did not slip into that kind of behaviour. She said that she would be able to deal with X more calmly in the future.
I have some reservations about whether that is true given the recency of what X said to the school counsellor. There is a risk that the mother may say those things to X in the future and they are abusive.
However while that is not pleasant and is not good and it could ultimately undermine X’s relationship with her mother, it is not sufficient to mean that she should have limited time with her mother.
A concern was raised in the material about allegations made by Ms G in 2012. In different parts of the subpoena material they were noted as either substantiated or not substantiated.
The father vehemently denied that there was any truth in the allegations. I cannot make a finding that there is and the allegations that were made nine years ago. There is not the smallest evidence to suggest that X was at risk of sexual harm from the father.
The family report writer said that the fact that the father had been convicted of assault occasioning in relation to the mother and that there had been some other family violence perpetrated by him was a concerning issue. She said as follows:
It is of some concern the father continues to deny the behaviour for which he has been proven guilty and this may heighten the risk of his future re-offending. In terms of future risk, however, for X in the father’s household, there have been no reported incidents since 2012 and there are no allegations the father has physically harmed X and/or that the father parents X in a punitive and/or harsh manner. Noting that the father is not in a relationship at this time it is assessed the risk of X experiencing family violence in the father’s household is currently low. If the father were to re-partner, it is likely that the risk to X of being exposed to family violence in her father’s household would increase.[7]
[7] Family Report paragraph 149
As noted the family report writer suggested that if the father were to re-partner the risk of X being exposed to family violence in the father’s household would increase. I am not sure whether I would entirely go there given the length of time that has passed since the father committed that offence, and the fact that there have been no incidents of that kind between him and the mother for many years but in any event the father has not repartnered.
One of the things I have not mentioned is that the father has a conviction for a very serious offence of violence in the early 2000s which saw him spending 18 months in prison. However I do not accept, on the current state of the evidence, sitting here in 2021, that there is an unacceptable risk of X being exposed to family violence in the father’s care.
I am not convinced that there is an unacceptable risk of X being exposed to abuse, neglect or family violence in either parent’s care. I do not say there is no risk and I am a little bit concerned the mother could act out verbally again, but there is not an unacceptable risk of any of that occurring.

Parental Responsibility

In terms of parental responsibility I must consider section 61DA of the Family Law Act 1975.
There has been family violence between the parents so the presumption in s. 61DA does not apply. However I can still make an order for equal shared parental responsibility and that is the order the father asked me to make. The mother sought an order for sole parental responsibility.
This is not a case in which I would be inclined to make an order for sole parental responsibility except in the event that I made an order that the child lived primarily with the mother. If the child continues to live in the week about arrangement there is everything to be said for the parents continuing to share parental responsibility.
The parents are not very good at doing that. They do not communicate very well. The father said that the mother screamed and shouted at him, and given the other evidence about her behaviour I accept that may occur.
The mother certainly feels that there is a power imbalance and that she is not listened to by the father and that may be the reason she shouts and screams.
They are not very good communicators but as Counsel for the Independent Children’s Lawyer pointed out, regardless of that decisions do get made for X.
The father impressed me in the witness box as being very knowledgeable about such things as the need for dental work and asthma management. I would not want to see him cut out of the equation in making decisions.
I also would not want to see the mother cut out of decision making. She is keen to make sure that X does as well as possible at school and has been talking to organisations such as the Town K Family Support to try and get some support for that. It would be good for X if the mother continued to be involved in decision making about her.
Absent me making an order that the child lives primarily with the mother, in which case an order for sole parental responsibility may be required, I would not be making an order for anything other than equal shared parental responsibility, because I would not want to see either of these parents cut out of decision-making for the child.

Conclusion

I have to decide whether I should make the orders the mother is seeking or the orders the father is seeking. The family report writer did not make any clear recommendations in the report. She said as follows:
It is difficult to provide clear advice relating to future parenting arrangements for X as there are historic and current potential safety concerns for X in both households. This assessment has identified the greatest current concerns for X in the mother’s household as verbal abuse/emotional harm towards X by the mother and if the mother is in a relationship with Mr C. The greatest concerns identified for X in the father’s household are the substantiated sexual harm of Ms G and the father’s history of perpetrating family violence. There are also the concerns regarding educational neglect of X to be considered. Given the complexities of this matter a judicial decision will be required relating to issues of risk.[8]
[8] Family Report paragraph 158
The family report writer said that a judicial decision was required in respect of future parenting arrangements for the child.
Both parents have their good and their bad parts. The father has served a term of imprisonment for an offence of serious family violence. That was nearly 20 years ago. He was convicted of assaulting the mother in 2008. He has previously been a cannabis user and he has three convictions arising out of that, and there have been some issues in the past with him getting X to school.
However there are good bits about the father as well. Mr B has been in his care since he was six years old. He has a very good school record. He is on a disability support pension. He was using cannabis although there is no evidence he currently is and he is not a child who is in trouble with the law or who has been in and out of the juvenile justice system. In broad general terms the father seems to have done a good job bringing up Mr B.
The father has an employment history. He has an injury but he is currently working as a farmhand and he is a good model for his daughter in that regard.
The father clearly loves X and she enjoys spending time with him. She does not make any complaint about him being a harsh disciplinarian or being cruel or unkind to her. She no doubt enjoys being the only child in his household and getting some spending money, but it is not just that. I am satisfied that she feels safe in the father’s care and not at risk of being harshly disciplined or threatened.
The mother has her good and bad parts as well. As her counsel pointed out in his case outline document she has fewer convictions than the father. She is doing a good job caring for L and M and as far as is known for N, and L has a very good school attendance record.
Those are the good things about the mother and she also has been keen to be a part of X’s life throughout the child’s life.
The mother’s choice of Mr C as a partner and a parent of her children is not ideal. He has numerous convictions for drug-related offences and he has not done a drug test in these proceedings. I am somewhat concerned that she was not entirely frank about the extent to which he is currently in her life. He certainly does not add value to X’s life.
The mother has been a bit better than the father at getting X to school but she has had a troubled relationship with her over the years and has had difficulty managing her behaviour, leading to an ADVO being made for X’s protection from her.
As recently as November 2020 X told the school counsellor that her mother had been very unkind and was telling her she should go and kill herself.
Both parents have their good and bad parts. They have not managed co-parenting X particularly well. They are different and have different parenting styles. X seems to prefer the more relaxed style and the greater largesse she gets from the father. I accept that this has created a difficult situation for the mother but she has not handled that difficult situation well and the biggest concern for me is that if an order is made for X to live primarily with her it is seriously open to question whether she will be able to manage that situation.

The family report writer said this:
When asked how X would feel about living primarily with her, the mother said, “I don’t think she would go much good on it, because she knows I got two other children, and she knows everything has to be divided into three, where at her dad’s, it’s all on her. There’s no dividing between the children.[9]
[9] Family Report paragraph 53
The mother recognises that there would be enormous difficulty if an order was made for X to be primarily with her. She is to be commended for focusing on X’s education, because it is very clear that X has struggled at school since she started high school. She has struggled academically, and she has been getting into fights.
However the solution the mother proposes of drastically cutting back her time with the father is unlikely to work for X. It is unlikely to improve the situation for her, because no matter how much support the mother may have to assist her to attend to X’s education, if the child is forced at the age of 13 to be where she does not want to be the difficulty she experiences as a result may mean that nothing improves or changes for her in relation to her education.
Even if the mother is better able to meet her educational needs, if X is upset and angry about where she is living there may be no net benefit to her at all.
X is 13 and it is simply not in her best interests to make an order that is contrary to her wishes.
She is safe with her father; she feels safe with him, and she is happy living with him. There are some issues in her relationship with her mother but she does not want to lose her relationship with her mother or her siblings. She is willing for the week-about to continue and her week with mother will give the mother an opportunity to provide X with some additional assistance with her education, because the assistance she needs is not just with getting to school. She needs to be supported academically and in dealing with her peer relationships.
I therefore intend to make an order that the week about arrangement continue.
The mother sought an order that X not be left alone in the care of Mr B. There is nothing in the evidence to suggest that this order needs to be made. Mr B does not pose a risk of harm to X. There is nothing to suggest that he is not appropriately assisting her to get up in the morning, have breakfast and get on the bus.

I certify that the preceding two hundred (200) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate:

Date: 12 July 2021

[2021] FCCA 1582

21 May 2021

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Family Law

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Injunction

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