Rabb and Bachman - [2011] FMCAfam 558

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RABB & BACHMAN

[2011] FMCAfam 558

FAMILY LAW – Parenting orders – parental responsibility – denigration of a parent – illicit drug use – child protection concerns.

Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAA, 65DAC

Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
MRR v GR [2010] HCA 4
Slater & Light [2011] FamCAFC 1

Applicant:

MR RABB

Respondent:

MS BACHMAN

File Number:

BRC 1264 of 2009

Judgment of:

Lapthorn FM

Hearing dates:

8, 9 and 10 November 2010, 1, 2 and 3 March 2011

Date of Last Submission:

3 March 2011

Delivered at:

Brisbane

Delivered on:

9 June 2011

REPRESENTATION

Counsel for the Applicant:

N/A

Solicitors for the Applicant:

Mark Treherne & Associates

Counsel for the Respondent:

Mr Pietrese

Solicitors for the Respondent:

Hofstee Lawyers

Counsel for the Independent Children’s Lawyer:

Ms McDiarmid

Solicitors for the Independent Children’s Lawyer:

Barbara Fox Solicitor

ORDERS

That all previous parenting orders and undertakings given be discharged.
That the child [X] born [in] 2007 live with the Mother.
That the Mother have sole parental responsibility for the child in relation to all major long term issues affecting the child, subject to the condition that the mother consult with the father at least 21 days prior to the making of any such decision and specifically in relation to:
(a)The child’s education;
(b)The child’s religious and cultural upbringing;
(c)The child’s health;
(d)The child’s name; and
(e)Any proposed changes to the child’s residence that would make it more difficult for the child to spend time with the father.
That the child spend time with the Father at all such times as may be agreed between the parties but failing any such agreement as follows:
(a)Until the child commences school:
(i)Each alternate weekend from 4:30pm Friday to 4:00pm on Sunday;
(b)Upon the child commencing school:
(i)Each alternate weekend from after school Friday until before school on Monday; and
(ii)For one half of all gazetted school holidays at the end of terms 1, 2 and 3, as agreed or failing agreement the first half in even numbered years and the second half in odd numbered years.
(iii)For two non-consecutive periods of one week each during the gazetted school holidays at the end of term 4 each year as agreed but failing agreement the first and third weeks in even numbered years and the second and fourth weeks in odd numbered years.
Notwithstanding any Orders herein, the child shall spend;-
(a)Mother’s Day from 9.00am to 5.00pm with the Mother;
(b)Father’s Day from 9.00am to 5.00pm with the Father;
(c)From 3.00pm Christmas Day until 5.00pm Boxing Day with the Father in odd years, and from 5.00pm Christmas Eve until 3.00pm Christmas Day in even years;
(d)From 5.00pm Christmas Eve until 3.00pm Christmas Day with the Mother in odd years, and from 3.00pm Christmas Day until 5.00pm Boxing Day in even years;
(e)One half day with each parent on the child’s birthday.
That changeovers occur:
(a)Upon the child commencing school, at school when a school day;
(b)Otherwise at the [G] Contact Centre whenever available;
(c)Otherwise inside the [R] Police Station.
That the father return the child to the mother in accordance with these orders at the conclusion of any period of time spent.
The Mother and the Father shall:-
(a)Keep the other parent informed at all times of their mobile telephone number;
(b)Keep the other parent informed of the names and addresses of any treating medical or other health practitioners that treat the child and authorise any treating medical practitioner to release the child’s medical information to the other;
(c)Keep the other informed of the child’s place of education and authorise by this Order the day-care, pre-schools and schools attended by the child to give each parent information about the child’s education progress and other related activities.
That each party is restrained from denigrating the other parent to or in the presence of or within the hearing of the child whilst the child is their care.
That the Father is restrained from taking the child to medical practitioners in relation to any sexual or physical allegations other than as directed by the Court or the Department of Communities Child Safety Services.
That the mother is restrained from using any illicit substances whilst the child is in her care and within 24 hours of the child returning to her care.
That the appointment of the Independent Children’s Lawyer be discharged.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 1264 of 2009

MR RABB

Applicant

And

MS BACHMAN

Respondent

REASONS FOR JUDGMENT

Introduction

The parents of [X] are unable to agree about her future parenting arrangements and have asked the court to make orders. Each of the parents would like the child to live primarily with them and spend time with the other parent on weekends and during school holidays when she is older. [X] was born [in] 2007.
In determining their dispute a number of issues arose. A significant issue was the parenting capacity of each of parent. The mother’s ability to care for her children has been compromised throughout their lives and there has been previous involvement from the state child welfare agency. The father expressed significant concern for [X]’s safety because of this and has made numerous notifications to various agencies in relation to the mother’s care of [X] and her other children. He has repeatedly accused her of being a paedophile.
The father’s significant denigration of the mother, to her and a number of professionals he has seen, either in relation to these proceedings or otherwise, raises significant concern as to his ability to promote a positive relationship between the child and her mother.
The father has a significant criminal history some of which includes violence and drug related charges. There is a history of domestic violence orders between the parties.
The mother has a lengthy history of drug use and she has alleged that the father is a supplier although not a user of drugs.
Another significant issue is whether the parties have the ability to effectively communicate in order to make ongoing decisions for this child.

The Applications and Evidence

In his Initiating Application filed 16 February 2009 the father sought orders for the child to live with him and for him to have sole parental responsibility for the child. He proposed that the child spend time with the mother supervised either by him or by another person agreed upon between the parents. He sought restraint on the mother spending time and communicating with the child if she was under the influence of either alcohol or illicit drugs. He also sought an order that the mother undertake a parenting course as well as drug rehabilitation program prior to spending any unsupervised time with the child.
The father filed a notice of Child Abuse or Family Violence on

18 August 2009.
At the conclusion of the hearing his solicitor advocate tendered

2 minutes of order at the request of the court. The first of which set out the primary orders he sought at the end of the trial. The second minute of order was a fall back position in the event that the court did not agree that the child should live with him. His preferred minute of order provided for the child to live with him and for him to have sole parental responsibility for the child but made provision for him informing the mother as to a number of significant factors. He proposed that the child spend time with the mother until the child commenced formal schooling each weekend from Friday afternoon to Sunday afternoon and once the child commenced school each alternate weekend from Friday after school to before school Monday and for one half of the short school holidays at the end of terms 1, 2 and 3 and for one week during the Christmas school holiday period. His minute of order also provided for other important days. He proposed that changeovers occur at the [G] Contact Centre until the child commenced school and thereafter at the child’s school. He proposed that the parents keep each other informed at all times of their mobile telephone number. He accepted restraint from denigrating the mother in the presence of the child or otherwise and he sought an injunction restraining the mother from using cannabis whilst the child was with her. He also proposed that there be mediation prior to any Application Contravention filed. He sought that the Independent Children’s Lawyer remain in place for a period of time.
His alternate position was very similar to those orders save that they provided for the child to live with the mother and for the parties to share parental responsibility. Under these orders he would have periods of time with the child in the same way he proposed for the mother in his primary proposal.
In support of his application the father relied on:
a)his affidavits filed:
i)16 February 2009;
ii)16 August 2010;
iii)30 August 2010;
b)The affidavit of Ms D filed 2 September 2010; and
c)The affidavit of Ms C filed 1 September 2010.
During the course of the hearing the father withdrew the affidavit of Ms P who is his step-daughter. Ms P had commenced to give evidence on day three of the hearing and as a result of my concerns as to her ability to give that evidence the trial was adjourned to enable a psychiatric report to be prepared. When Ms P attempted to give her evidence she appeared to be extremely stressed. She consumed significant amounts of water after almost every question even to the point of filling her glass two or three times before attempting to answer a question. She appeared to be dry-retching at times as well as looking sideways, touching her eyes and hair in a manner that appeared to attempt to hide her face. She could not physically answer many questions. I formed the view that she was experiencing significant difficulties in giving her evidence. Dr McGuire observed similar behaviours when she interviewed her a month later although without the dry-retching movements which Ms P described to Dr McGuire as being reflux. I do not intend to make any findings in relation to the evidence given by Ms P as I granted leave for her affidavit to be withdrawn without objection.
The father was cross-examined at length by counsel for the mother and the Independent Children’s Lawyer and both Ms C and Ms D were also cross-examined.
The mother relied on her amended response filed 19 January 2010 wherein she sought orders for the child to live with her and for the parties to have equal shared parental responsibility. She proposed that the child spend time with the father as agreed between the parties but failing agreement from Friday afternoon to Sunday afternoon in one week and in the second week from Thursday morning until Saturday morning. She also proposed half of the school holidays at the end of terms 1, 2 and 3 and for one week during the Christmas school holidays. She also sought periods of time on special occasions for the child to spend with both parties. She proposed that the child move between both parties at the [R] Police Station and sought orders for the exchange of information between the parties and for a mutual non-denigration order.
At the hearing at the request of the court the mother tendered a minute of final orders sought. Her position had changed somewhat. She proposed that the child live with her and that she have sole parental responsibility for the child. She proposed that the child spend time with the father each alternate weekend from Friday afternoon to Sunday afternoon until she commenced school and that once she commenced school each alternate weekend from after school Friday to before school Monday; for one half of the school holidays at the end of terms 1, 2 and 3 and for one week during the Christmas school holiday periods. She also sought a specific order for the child to spend time with both parties on significant occasions. She proposed that changeovers occur at the [G] Contact Centre until the child commenced school and thereafter at the child’s school. She sought an order that the parties keep each other informed of their mobile telephone number and that the mother keep the father informed of details of the child’s treating medical and other health practitioners and the child’s schooling. She also sought a mutual non-denigration order.
In support of her case she relied upon her affidavits filed:
a)8 September 2009;
b)19 January 2010; and
c)24 August 2010.
The mother gave evidence and was cross-examined.
The Independent Children’s Lawyer tendered a minute of order at the conclusion of the hearing wherein she sought that orders be made providing for the child to live with the mother and for the mother to have sole parental responsibility for the child. She proposed that the child spend time with the father each alternate weekend from Friday afternoon until Sunday afternoon until the child commenced school and thereafter each alternate weekend from after school Friday until before school Monday and for half of all school holidays. The Independent Children’s Lawyer supported the parents’ request for specific orders for special occasions and the orders sought in relation to handovers were similar to those sought by the parents in that they provided for handovers to occur at the [G] Contact Centre or at the child’s school whichever was applicable and if those places were not available then the [R] Police Station. The Independent Children’s Lawyer also sought an order that the parties keep each other informed of their residential addresses and telephone numbers as well as keeping each other informed of the child’s treating medical practitioners and schooling. She sought a mutual non-denigration order and an order restraining the father from taking the child to see medical practitioners in relation to any sexual or physical allegations other than as directed by the court or the Department of Communities (Child Safety Services). She also sought a continuation of the undertaking given by the father on

18 September 2009 that he would return the child to the mother at the conclusion of any period of time that the child spent with him, and the mother’s undertaking not to use any illegal substances 24 hours prior to and during any time the child is in her care.
The Independent Children’s Lawyer had filed affidavits from:
a)Ms B filed 12 August 2010;
b)Mr P filed 1 December 2009;
c)Mr P filed 12 August 2010; and
d)Dr M filed 3 February 2011.
Ms G, a case officer with the Department of Communities (Child Safety Services) gave evidence of the Department’s involvement with the mother.
A number of documents were tendered into evidence[1]. I have had regard to those documents along with the affidavits read in each party’s case as well as the oral evidence given.
[1] F1 Affidavit of Ms H
Throughout these reasons I will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.
The father’s first language is Spanish and he was assisted by an interpreter throughout the proceedings. He gave evidence of being able to speak and understand English reasonably well but not being able to read and write the language. I formed the view having observed him in the witness box that whilst he had difficulty at times with the language and some concepts he understood the questions ask of him or sought clarification before answering.
His evidence however was concerning. He was an expressive man who appeared at times to be irritated by the court process. He was at times dismissive of relevant lines of enquiry and had to be warned on a number of occasions to answer the questions. At other times he was argumentative and wanted to make statements over and above what was necessary to answer the questions asked and had to be warned accordingly. At other times he was simply not responsive to the questions. At times his evidence was inherently unbelievable and my overall impression was that he was not a reliable witness.
The mother’s evidence was also concerning in that her oral evidence was sometimes inconsistent with her affidavit evidence however overall I preferred the evidence of the mother where it differed from that of the father as she was more forthright in her oral evidence. She was willing to make concessions in favour of the father such as his ability to care for the child and readily conceded she has faced many difficulties in her parenting of her children and her drug taking. This is not to say I have accepted all of her evidence and where I consider it necessary to do so I will refer to those parts of her evidence that I have rejected.
The father who is 55 years of age was born in Cuba. He migrated to Australia in 1980 after a brief period in the United States of America and is now a permanent resident of Australia. He lives on the Gold Coast in a three bedroom unit which he rents through the Department of Housing. He is not currently in any paid employment although he gave evidence of previously working in various jobs but mainly in the construction industry.
His step-daughter Ms P also lives with him. She is in her mid twenties and has lived with the father since her mother died when she was ten years of age.
The father gave evidence in his affidavit filed 16 August 2010 of having 4 other children to three mothers. His eldest child, Mr D, was born in 1984 and has a child of his own. The father maintains a relationship with Mr D and his grandson. He had a relationship with a woman who he named Ms K but separated before their child was born. He believes the child would be around 13 years of age and lives with her mother in Canada.
In his affidavit he also gave evidence of having two children to a woman he did not name. These children, who were not given names in his affidavit were said to be 3 years old and 2 years old and were a boy and a girl. He said he had a good relationship with their mother and that [X] and these children were very close. This evidence was contentious. The mother claimed to have no knowledge of their existence. The cross-examination of the father on this topic was deeply troubling. The father was reluctant to give evidence about these children and their mother saying they were not relevant to the proceedings. Eventually he said the mother’s name was [omitted] but he did not know her surname. He then said that their names were [Y] and [Z] but he called them [omitted]. He denied inventing their existence. When the father saw Dr McGuire just one month after giving this evidence he initially denied to her that he had these children. It was only after she told him the mother said that he did that he changed his story. He left the interview room after admitting this returning later and saying to Dr McGuire:
“I am not supposed to be here. What does this have to do with Ms Bachman? Why should I sit here and talk nice. If I had done what Ms Bachman did I would be in jail. I should not be here talking to you”.
His evidence of [X] having a relationship with these children was inconsistent in that he said at one point these children would be at his place when the child visited and then he said he visited the children and sometimes [X] would visit with him. I am not persuaded the father was telling the truth about these children. However even if he is their father I am not persuaded [X] has a relationship with them.

The father has a lengthy criminal history in Australia. Some of the offences have included possession and supplying a dangerous drug; unlawful damage to property, theft; going armed in public so as to cause fear and unlawful wounding. There were many breaches of bail. He told Dr McGuire that he had served time in Cuba for murder and that he had been charged with further violence related offences in Australia but had been acquitted. The mother had accused the father of being a supplier of drugs to her and others but that he was not a user of drugs. Although the father admitted the conviction of the drug related offences he denied being a supplier. I accept the mother’s evidence that the father supplied her with illicit drugs but there is no evidence to support he is a regular supplier of drugs to others.
The mother is 36 years of age. She used to live in the same Department of Housing complex where the father lives but now lives in another area of the Gold Coast. She has completed an [omitted] course through TAFE but is not perusing that profession at the moment. She has some [omitted] work at present.
The parties had a sexual relationship for about two and a half years between 2005 and 2008 but they never lived together in a de-facto relationship.
The mother has four other children to three different fathers, none of whom currently spend any time with their children. Her first child [A] is 19 years of age and lives independently of the mother although she sees her regularly. The mother told Dr McGuire that [A]’s father is incarcerated for life for the murder of two people.
[B] who is 16 years of age is also living independently of the mother having obtained an apprenticeship although at the commencement of the hearing he was living with her. [C] is 14 years of age and lives with the mother. According to the mother the father of [B] and [C] abused alcohol and was violent towards her including holding knives to her throat. She left him because of this violence and he has not had any involvement with the children since that time.
[D] who is 6 years of age is the son of the mother and Mr E. As a result of domestic violence in her relationship with Mr E the Department advised the mother to leave him in order to protect the children.
Both [C] and [D] have been diagnosed with Attention Deficit Hyperactivity Disorder. [C] also has an intellectual impairment.
The mother has been the primary carer for [X] for most of her life. However there was a period in early 2008, when the child was only a few months old, when the father primarily cared for the child. The circumstances surrounding how this was arranged were disputed between the parties. The father maintained that they agreed for him to leave his employment and care for [X] full time. He said the mother told him that he could care for her until she was “grown up”. The mother’s version was that she went back to study at TAFE and asked the father to look after [X]. Initially he would do this at her place but after a while he would take the baby to his place if she had a work placement of a night. She said this continued for about a 4 month period. As a result of a number of incidents of what she described as controlling and abusive behaviour by the father including the breaking into her home at 3.30 in the morning on 30 June 2008 the mother decided to retain [X] in her care when the father brought the child back to her on 2 July 2008. She obtained a domestic violence order at around this time. Although I was not convinced that either parent’s version was accurate I am persuaded that the father played a significant role in the caring of the child in the first 10 months of the child’s life and was her primary carer for at least 4 of those months.
The mother has had extensive involvement with the Department. The mother continues to receive assistance from various agencies. The documents tendered from the Department were voluminous. Although I have read all that I was asked to read from these documents I propose to simply summarise the Department’s involvement with the mother as having arisen as a result of notifications that: she has been unable to properly care and control her children; has exposed herself and them to family violence; has been unable to protect them from sexual harm; has perpetrated sexual abuse and behaved inappropriately with children; and her older boys have been involved in criminal acts.
The father has made numerous notifications to the Department, Police and hospital staff that the child was not being look after appropriately in the mother’s care. In the witness box he summarised his concerns as being: the inability of the mother to properly feed the child and attend to her medical needs; her involvement with perpetrators of family violence; her drug taking including marijuana, heroin and amphetamines; and her inability to protect her children from sexual abuse including her own inappropriate sexual behaviour to and around her children. He said this last issue was his main concern.
The parties attended a legal aid conference in September 2008 and reached an agreement as to the child living with the mother and spending time with the father on weekends. Orders were drafted for filing in the Family Court of Australia but there was no evidence of the orders having been made.
The following month the child was taken by the father to the [omitted] Hospital as he believed the child had been sexually abused whilst in the care of the mother however he was advised the child had eczema. Until he gave an undertaking not to take the child to medical practitioners in relation to sexual abuse and physical care the father had taken the child to numerous medical professionals. He did not consider he was being listened to.
A domestic violence order was made on 15 December 2008 protecting the mother from the father for a period of two years. The mother’s evidence was that the father has regularly stalked her and been intimidating and harassing towards her. The father was convicted of a breach of this order in 2009. It expired during the course of the hearing and the mother indicated she would be seeking a further order. The mother consented, on a without admissions basis, to a domestic violence order sought by the father in 2009.
In January 2009 the police conducted a welfare check of the children in the mother’s care, after the father had made a notification to the Department, but considered the children to be safe.
The father had by this time lodged his application for parenting orders in this court.
In March 2009 the Department removed the children in the mother’s care placing them in foster care. After about 4 weeks the children were returned to her after she agreed to engage with the Department and seek support. In August 2009 the father lodged a complaint with the Ombudsman over the Department’s decision to return the children to the mother. Ultimately the Department did not proceed with action in the Children’s Court.
The father filed a Notice of Child Abuse or Family Violence in this court on 18 August 2009 where he alleged:
[D] is [X]’s 4 year old brother and is known to have molested children at pre-school as observed by teachers. Including rubbing of penis on other child’s face. His mother Ms Bachman shows inappropriate sexual behaviour in exposing breasts, regularly appearing fully naked in front of all of her children including my 20 month old daughter. For above reasons I believe my daughter [X] is in grave danger of abuse and should be placed in my [the father’s] custody and taken from Ms Bachman immediately.
I have seen evidence [X] is suffering physical abuse, I have witnessed Ms Bachman the mother yelling, swearing abuse at all of her children I see [X] with bruising, scratches, broken tooth she is malnourished and her feedings routine has become chaotic. I believe she is over medicating [X] with some type of drug as she has no sleeping patterns anymore.
This house where my daughter lives the mother and all her children are a risk to [X]. The mother was abused by her brother and has no idea of appropriate sexual behaviour [X] is at risk at any time from visitors as well. Ms Bachman brings men unknown to her from pub and has inappropriate sexual conduct.
On the same date as the father filed this Notice of Risk, Federal Magistrate Slack made orders by consent providing for the child to live with the mother and spend time with the father each week from 5.00pm Friday until 3.00pm Sunday. The father gave an undertaking that he would return the child to the mother at the conclusion of any period of time that the child spent with him and that he would not take the child to medical practitioners in relation to any sexual or physical allegations other than as directed by the Court or by the Department.
When questioned why he entered into these consent orders if he had concerns as to the mother’s ability to care for and protect the child the father gave evidence that he felt this was the only way he was going to see the child. I do not accept this evidence. If he was so concerned about the welfare of the child in the mother’s care that he filed a notice of risk and making the allegations he did therein he would not have consented to orders that provided for the child to live primarily with the mother even if he would be seeing the child each week. His evidence in this regard lacked all credibility.
Mr P, Social Worker prepared two family reports at the request of the Independent Children’s Lawyer. His first report was prepared in November 2009 and the second report was prepared in August 2010. In the first report Mr P concluded that the parents were unable to communicate effectively notwithstanding that they were using a communications book. He observed that the child was equally fond of both parents. He did not share the father’s concerns about the child’s welfare in the mother’s care and he formed the view that the father’s allegations were unsubstantiated. He observed the mother’s relationship with her children to be a good one. He formed the view that the current parenting arrangements were appropriate for the child.
In the second report Mr P said that he experienced difficulty in engaging with the father. When Mr P contacted the father to organise the interviews for the updated report the father launched into what

Mr P described as a verbal assault accusing him of allowing the child to be “exposed to a paedophile”. Mr P described this conversation as being problematic and the father disconnecting the phone call. The father ultimately attended the interviews as requested and was accompanied by his step daughter Ms P. During his interview with

Mr P the father complained bitterly that he had trouble in engaging with the Department about his child protection concerns with respect to all of the mother’s children.
During the father’s interview with Mr P he described the mother as a “dirty dirty woman”. Mr P described the interview as a difficult one for him to engage in, with the father not allowing Mr P to talk at times. Mr P said he had difficulty making sense of the various comments made by the father. These comments however appeared to indicate that the father had difficulties engaging with the Department and that the mother’s child [D] had been sexually abused in the care of the mother and that the subject child was also at risk.
Mr P concluded that the child had a positive relationship with both parents and that the father was a caring and attentive father who wished to play an active part in the child’s life but that the mother was more generous of the two parents so far as her attitude to promoting the child spending time with the father was concerned. Mr P maintained his view that the arrangement that the child had in seeing both parents each week was appropriate and meeting the young child’s needs and should continue until at least the child started her preparatory year at school. Mr P somewhat pessimistically formed the view that a significant issue in this case was the father’s continuing and serious contentions that the mother was unfit to parent her children and he felt that there was nothing that he or any child protection authority could say or do which would persuade the father otherwise. When cross-examined on this point Mr P felt that the child was likely resilient to the father’s descriptions of the mother but he did agree that over the long term such behaviour could be described as abusive.
Dr McGuire observed the father to be warm, affectionate and child focussed when with the child but at the same time was also indulgent and tended not to set limits for the child. Of concern was his inability to refrain from berating the mother in front of the child. The doctor described the father as shouting “about the mother’s shortcomings in front of the child, displayed the child’s legs with various bruises to me, commented that the child’s eyes were swollen. The eyes did not appear swollen to me.”
Dr McGuire concluded that the mother gave a credible account of her fear of the father and that there appeared to be a significant imbalance of power in the relationship. Given my observations of the parties and after considering all of the evidence I have arrived at the same conclusion.
The doctor did not diagnose any psychiatric disorder for either party but she was of the view that there were concerns for both parents. Her evidence suggests she was more optimistic of the mother engaging positively with various agencies to assist in her parenting deficits and drug taking. She was pessimistic as to the father’s ability to cease denigrating the mother or accepting a court order contrary to his concept of what is in the child’s best interests.

Legal Principles

All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act 1975. In determining their outcome the Court is required to have regard to the objects and principles that underlie that part[2] and must consider the best interests of the child as the paramount consideration.[3] In determining what is in a child’s best interests the court must consider a number of factors set out in s.60CC.
[2] s.60B
[3] s.60CA
The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[4] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests the principles are:
a)Children have a right to know and be cared for by both their parents;
b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;
c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
d)Parents should agree about the future parenting of their children; and
e)Children have a right to enjoy their culture.
[4] s.60B lists the objects and principles for Pt VII.
The legislative framework which must be followed[5] mandates that when making a parenting order the court must apply a rebuttable presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[6] This presumption may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the child’s best interests for it to apply.[7]
[5] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
[6] s.61DA
[7] s.61DA(2) & (4)
For the purposes of Pt VII, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[8] Unless there is a court order to the contrary each of a child’s parents has parental responsibility for that child until they reach the age of 18 years.[9] When a court has made an order for two (or more) people to share parental responsibility for a child any decision involving a major long-term issue must be made jointly by those people after consulting each other.[10] A major long-term issue in relation to a child means an issue:
[8] s.61B
[9] s.61C
[10] s.65DAC
about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.[11]
[11] s.4
In the event that the court finds that the presumption applies or orders the parties to have equal shared parental responsibility the court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable.[12] If the court finds that equal time is not in the child’s best interests or reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so must be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.[13]

The primary considerations: s.60CC(2)

[12] s.65DAA(1)(a) & (b), MRR v GR [2010] HCA 4

[13] s.65DAA(2)(c) & (d)

The benefit to the child of having a meaningful relationship with both of the child’s parents

Both parents have had a significant involvement in the child’s life and the evidence is clear that [X] has a close relationship and secure attachment with both of her parents. Notwithstanding the significant issues in both households I am satisfied that she would clearly benefit from continuing to develop those relationships. In order to determine how it would be best to ensure the development of the parent/child relationships it is necessary in this case to consider the risks she faces in each household.

The need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence

The mother has a history of living with violent, harassing and controlling partners. Although the mother has taken appropriate action to obtain domestic violence orders in the past she has not always had them enforced and has allowed her partners to return to her property on occasions. On one occasion Mr E is reported to have poured petrol around the perimeter of her home threatening to burn it down whilst she and a number of her children where inside.
[B] on one occasion was physically violent towards his mother and threatened her with a knife requiring police intervention. Both the mother and [B] received support and assistance through referrals from the Department.
When [D] was 4 years old he was sexually assaulted by a 15 year old youth who was staying at the mother’s home. She was in her bedroom watching television leaving the children to their own devises in the lounge-room when this occurred. Although the mother denies using marijuana before this assault took place she admitted that she may have used it later on that night not having any knowledge at that stage that [D] had been sexually abused. There is no evidence to suggest the mother was responsible for this assault and although she may not have been sufficiently vigilant it is difficult for parents to observe all of their children at all times. Having said that however this incident appears to be another example of the chaotic nature of the mother’s home and when taken with the many other issues investigated by the Department is suggestive of the children being at risk of neglect from the mother’s lack of capacity to manage her children and remain drug free. I accept the mother’s evidence however that she is committed to overcoming these deficits in her care of the children by engaging with the supportive programmes she has been referred to by officers of the Department. Her stated commitment to overcoming her reliance on marijuana is to be applauded but I am not persuaded she has been able to achieve that to date. Until she is able to remain drug free there will continue to be a risk of neglect in her household.

I do not accept the father’s allegations that the mother is a paedophile. His solicitor advocate conceded there was no evidence to make such a finding. He submitted it is likely that the father has developed a perception of the mother from his interpretation of what he witnessed the mother do. Counsel for the ICL asked the father what he understood a paedophile to be. He replied when a man or woman touches a child and goes to bed with a child and does something sexual to a child. I am satisfied that the father holds the view and has expressed the view that the mother is the sort of person who would sexually abuse children.
He has made a number of allegations of the mother exposing her breasts to under aged boys, and walking around her house naked or in skimpy clothing. He accused her of allowing older children to masturbate over younger children and that he had witnessed this on one occasion. There was no evidence of a substantiated investigation by the Department in relation to this allegation.
Although not in his affidavit, he gave evidence of having witnessed the mother having sex with an under-aged boy named [omitted]. His evidence was that he went over to the mother’s house at around 11pm one night and looked through a window and saw her having sex with this child. His presence at the mother’s house late at night and his admission to looking through her window confirms the mother’s accusations that the father would stalk and harass her. He said he had tapes of the mother having sex with this child but was unable to produce them when asked. When re-examined on this point he conceded that he could not see clearly and had made assumptions. I am of the view that the father was telling the truth when he said he was at the mother’s home late one night and that he was peering through her windows as he has likely done that on many occasions. I reject however the remainder of his evidence in this regard and find that he fabricated it in an unsophisticated attempt to persuade me that his belief the mother is a paedophile was justified.
Although the mother’s children have been at risk of harm from her involvement in family violence I am satisfied that she has insight into this issue and continues to seek the support of child welfare agencies. She is also seeking the support of agencies to help with her lengthy history of drug use as well as assistance with the raising of the children.
There is no evidence to suggest that the child is at risk of abuse or neglect whilst in the father’s care except for his inability to refrain from denigrating the mother to the child. The mother willingly gave evidence that the father was otherwise good to the child. His denigration of the mother however is extreme and I accept the evidence of Dr McGuire that it is likely to have a long term detrimental impact on the child if it does not cease. In my view, although the father’s behaviour in this regard could be described as emotionally abusive it is more appropriate to consider this issue when I consider the parenting capacity of the parents and their willingness to promote a relationship between the other parent and child.[14]
[14] See Slater & Light [2011] FamCAFC 1 at paragraphs [41] and [42]

The additional considerations: s.60CC (3)

Any views expressed by the child and any factors that the Court thinks are relevant to the weight it should give to the child’s views

Given the age of the child her wishes were not canvassed.

The nature of the relationship of the child with each of the child’s parents and other persons

The observations of Mr P and Dr McGuire suggest the child is well bonded to both parents. I accept that evidence. Given the child has been significantly cared for by both parents throughout her life it is not surprising she has a close relationship with them. The proposals of each of the parties and the ICL would ensure those relationships continue. There is some threat in the longer term to the child’s relationship with the mother if the father is unable to refrain from denigrating her in the presence of the child. I will consider that issue in more detail below.
The child would also have close relationships with Ms P and her siblings in the mother’s home which would continue under the differing proposals.
I do not accept the father’s evidence that she has a close relationship with [Y] and [Z] if they exist at all.

The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent

The mother has always promoted a relationship between the child and the father although he complains that there was a period in 2008 when the child was not made available to him. This was in the context of the mother having obtained a domestic violence order after he broke into her home late at night. Her proposal for the child to spend time with the father would ensure that she continues to her see her father and maintain and develop their relationship.
Although the order the father seeks would maintain the child’s relationship with the mother it is clear that he does not have a positive opinion of the mother. He has not been able to refrain from expressing his views to any professional that he is come into contact with. He has repeatedly denigrated the mother and regrettably has often done so in front of the child. I find he is unlikely to desist doing so. I do not accept the submission made on his behalf that his inability to rationalise the things he perceives of the mother is partly explicable by his lack of education and cultural differences.
The risk of ongoing denigration according to Dr McGuire was that the child’s relationship with the mother could over time be compromised, lead to confusion in the child’s relationship with the mother and shake her confidence in her.
Whilst recognising the child had a close relationship with both parents she recommended, when giving her evidence, the child remain living with the mother but spend supervised time with the father because of the ongoing denigration. She accepted it was important to weigh up the close relationship the child had with the father, which she would experience as a significant loss if their time was curtailed, with the long term implications for the child and her relationship with the mother if the father was unable to refrain from his denigration of the mother.
Mr P was of the view that the impact on the child of the denigration of the mother would not be significant in the next year or so but by the time she is of school age there would be longer term negative consequences although if she turns out to be a resilient child she would be able to rise above it. In is oral evidence he maintained his position that the child should live primarily with the mother and felt that alternative weekends with the father was appropriate if the mother was supportive of that. He was not supportive of the child spending supervised time with the father believing it to be unnecessary. He did not elaborate on this.
I am satisfied the father will not be able to put aside his views of the mother and is likely to continue to expose the child to critical comments of her mother. I can not predict that the child will be resilient. This is a significant issue to which I have given significant weight.

The likely effect of any changes to the child’s circumstances including the likely effect on the child of any separation from either of his or her parents or any other child or other person with whom he or she has been living

If the child’s primary residence was changed so that she lived with her father there would be some prospect of the child missing her other siblings in the mother’s household. Overall however the frequency of periods of time with the mother each week as proposed by the father should not seriously undermine her relationships. The risk of undermining those relationships however is heightened by the father’s inability to refrain from denigrating the mother in front of the child. Should she spend longer time with the father and less with the mother this risk would in my view increase.
The current orders provide for the child to spend every weekend with the father. The mother and ICL seek to reduce this to every second weekend. Dr McGuire was of the view that as the child has established a close relationship with the father she would be able to sustain this relationship if the time was reduced to alternate weekends.
Dr McGuire preferred the child spend supervised time with the father given the concerns as to denigration and her view that there were many unknowns as to the father’s history. Neither the mother nor the father sought supervised time. Given the father was unable to refrain from being critical of the mother when he was around others I am not satisfied that supervision would assist this issue.
I accept the evidence of Dr McGuire that the child’s relationship with the father is likely to be maintained with an alternate weekend regime and I am of the view that there would be a corresponding reduction in the exposure to the child of the father’s denigration of the mother if she is seeing him fortnightly rather than weekly.
Mr P felt the child could cope seeing the father for extended periods of time during school holidays when she commences school and the ICL sought orders accordingly. Both the mother and father sought orders providing for the child to spend time with the other parent for half of the term holidays throughout the year but for only one week over the longer holidays at the end of the year. I am of the view that one period of time up to three weeks duration may be too long for this child to be away from the mother especially if she will be exposed to the father’s denigration during that time. Having said that I am of the view that the child would experience a loss in not seeing her father for a lengthy period of time over the holidays especially in her younger years. For these reasons I propose to make orders providing for the child to spend two non-consecutive one week periods of time with the father over the end of year holidays. This would also give the mother some respite should her household remain chaotic.

The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

Both parties live in the Gold Coast area. Because there has been conflict between the parents at handovers in the past the child has moved between the parties through the services of the Children’s Contact Service on the Gold Coast. In order to avoid ongoing conflict between the parents this should continue at least until the child commences school where she could be collected and returned to the school. Although there would be some costs implications in having handovers at a contact centre I do not consider that expense would over burden the parents.

The capacity of each of the child’s parents and any other person, including any grandparent or other relative of the child, to provide for the needs of the child including emotional and intellectual needs

There can be no doubt, given the significant involvement by the Department, that the mother’s household has been dysfunctional for many years. Not only has she had issues with family violence and drug use she has lacked the capacity at times to control the children’s behaviours and provide appropriate supervision of them. To her credit she has been able to recognise a number of these issues and has voluntarily sought assistance from the Department and other agencies to address problems with parenting, family violence, drug use and depression.
Notwithstanding this insight into her difficulties I am satisfied that she has at times had her parenting compromised by her long term marijuana use. The most recent drug screen test provided by the mother showed a positive reading for the presence of cannabis although she gave evidence of not having used marijuana for between 3 and 4 months. I have found her evidence on this point difficult to accept. I do however find that the mother would like to give up her use of marijuana so that her parenting is not compromised but that given her long history of substance abuse she is finding that difficult.
The mother who used to live in the same complex as the father has found herself in dispute with a number of her neighbours. There were occasions where neighbours have complained about her older boys behaving rudely and aggressively towards others in the complex with the mother being unable or unwilling to control or direct their behaviour. I accept the evidence of Ms D in this regard. Hopefully the mother will be able to use the assistance she is receiving to improve her parenting skills. Now that her two older children have left home some of the issues she has had may also be reduced.
The mother described the father as being a good father for [X] and he provided her with a cluttered but otherwise clean home. She felt though that he tended to wrap her in cotton wool and she could not be herself. I make no finding as to the later but I am satisfied that, except for the significant issue of denigration, the father is able to appropriately care for the child.

The maturity, sex, lifestyle and background of the child and of either of the child’s parents

The father is Cuban and as such has much to offer the child in broadening her cultural heritage. Ensuring the child sees both her parents regularly would ensure she has an understanding of her Australian and Cuban backgrounds.

The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents

I am not satisfied the mother has been able to rid herself of her reliance on marijuana. Drug testing results clearly show that the mother has returned a positive drug screen in February this year notwithstanding her evidence that she had not used cannabis for over 4 months. Notwithstanding this I am satisfied she is attempting to address all of her issues and desires to be more child focused.
The father is committed to the care and wellbeing of the child but his negative views of the mother cloud his ability to appropriately care for the child. By his ongoing denigration of the mother the father has demonstrated he is unable to shield the child from the parental dispute.

Any family violence involving the child or a member of the child’s family and any family violence order that applies to the child or a member of the child’s family if the order is a final order or the making of the order was contested by a person

I have already addressed the mother’s history of violent relationships. Although somewhat belatedly I am satisfied the mother has developed insight into the effect of this lifestyle on her and the children and will continue to seek the support of her counsellor in this regard.
The mother’s evidence was that the father had never been physically abusive of her but she felt he was manipulative and controlling. His personality was clearly more dominant than hers. His own evidence of attending the mother’s home late at night and looking through her windows confirms that he has acted in a stalking and harassing manner which would warrant the mother being fearful of him.
During the course of the hearing the mother’s domestic violence order expired but she indicated an intention to obtain another order. There was no evidence as to whether the order obtained by the father and consented to by the mother was still operative.
Given the nature of the relationship between the parties it is imperative that they do not come into contact with each other in the presence of the child and the orders for handovers to occur at the contact centre or the child’s school address this.
I am persuaded that the mother should not be required to disclose to the father her address, especially in light of his evidence of attending her home late of a night. Therefore I decline to make the order sought by the ICL for the parties to keep each other informed of their address. They do however need to keep each other informed of their telephone numbers so that they can contact each other in cases of emergency or to discuss the needs of the child.

The extent to which each of the parents has fulfilled or failed to fulfil, his or her responsibilities as a parent s.60CC(4)

Both parents have failed to exercise their parental responsibilities to the child however the mother appears to addressing her issues. The father on the other hand does not seem to be able to resist denigrating the mother and is unlikely to do so in the future.

Presumption of Equal Shared Parental Responsibility

I am satisfied the presumption of equal shared parental responsibility has been rebutted. There have been domestic violence orders made against both parties and there is one confirmed breach by the father. I accept the mother’s evidence that the father has been intimidating and controlling of her.
There has been high conflict between the parents including in front of the child.
The father does not respect the mother as is evident by his continual denigration of the mother. They do not have the ability to communicate effectively in relation to the child with just one example being the child being baptised without the mother’s consent.
I have been invited by all parties to make a sole parental responsibility order. The issue of parental responsibility is important. To make an order for sole parental responsibility should only be considered when there is no alternative. To exclude a parent from the decision making process in relation to a child’s long term care welfare and development is to deprive a child of input from that parent. There are occasions however when that is necessary. To effectively make co-parenting decisions the parents must be able to communicate in a respectful and effective manner and be able to work through their differences to reach a child focused decision. To do this parents usually need to share a level of trust and respect or at the vey least have the ability to be objective about the other parent and the child’s needs.
That does not exist in this case. When I consider all of these issues I am of the view that the mother should have sole parental responsibility. She indicated in her evidence that she would be prepared to inform the father of her proposed decisions prior to making them and inviting a response from him. This will go some way towards ensuring the father has some input into decisions affecting the child.

Consideration of Equal Time or Substantial and Significant Time

Because the presumption of equal shared parental responsibility has been rebutted and I have declined to make such an order I am not required to consider the provisions of s.65DAA.

Discussion

I accept the submission of the Independent Child’s lawyer that there are child protection concerns in both households. I find however that the mother is more likely to positively engage with child welfare agencies for assistance. The father, on the other hand, is less likely to engage with these agencies if they take a view different to him. He has been repeatedly critical of the officers of the Department and has been less than co-operative with the staff at the [G] Children’s Contact Service. The evidence of Ms B suggests he has found it difficult to follow directions at times and had received written warnings about his behaviour. He also complained about the child being cared for by a male worker at the centre. This attitude was consistent with his evidence when he said that people from the various agencies he has approached about the child would not listen to him because he was “black”.
I am persuaded there is no merit in the father’s accusations that the mother is a paedophile. His criticism of her general parenting ability has had some foundation but his perception of her abilities is clouded by his overall negative view of her. Her history of illicit substance use, particularly marijuana, is a major concern and one to which I have given significant weight. If it were not for her engagement with the various agencies I would have greater concerns for her ability to parent this child. The father’s ongoing denigration of the mother, in my mind out weighs the deficits in the mother’s parenting. I am persuaded the child should continue to live primarily with the mother.

I have given significant weight to the father’s ongoing denigration of the mother. However I have also given weight to the very good relationship the child has with him.
Although Dr McGuire preferred the child’s time with the father be supervised such an arrangement is unlikely to see the father refrain from denigrating the mother. Indeed the father might be more inclined to bad mouth the mother when others are present. Supervised time would also see a significant reduction in the time the child could spend with the father. Many contact centres are only able to offer periods of up to two hours. Such a small period of time would be too great a reduction in time for this child to maintain her positive relationship with the father.
I am persuaded that alternate weekends would be a better option for this child’s time with the father. This would balance her need to spend time with him but also reduce the exposure to the denigration of the mother.
I have declined the father’s request for the retention of the appointment of the ICL as I am not persuaded there is much to be gained in keeping the oversight of the ICL.
For these reasons I make the orders set out at the commencement of this judgment.

I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Lapthorn FM

Date: 9 June 2011

F2 Pink communication book – [X]

F3 Certificate of attendance for Post Separation Parenting Workshop for father

F4 Minute of final orders sought by applicant father

F5 Alternate minute of final orders sought by applicant father

F6 Bundle of documents from Department of Communities (Child Safety)

M1 Criminal history of applicant
    M2 Letter from Benevolent Society dated 24/2/2011
    M3 Faxed letter from Dr C of QML Pathology received 1/03/2011
    M4 Draft minute of orders sought by respondent mother

ICL1 Bundle of documents from Department of Communities (Child Safety Services) file, Queensland Police file and Drug testing results for the father and mother

ICL2 Summary of notes of Ms G
    ICL3 Bundle of documents from Department of Communities (Child Safety Services) File
    ICL4 Pathology report dated 11/2/2011 – mother’s drug testing
    ICL5 Pathology report dated 21/01/2011 – father’s drug testing (2 pages)
    ICL6 Minute of final orders sought by ICL