RADCLIFFE & MARLOW

FAMILY COURT OF AUSTRALIA

RADCLIFFE & MARLOW

[2014] FamCA 1173

FAMILY LAW – CHILDREN – Best interests – with whom the child shall live and spend time – where the child has meaningful relationships with both parents – children’s views – sibling relationships – where the father, when the child was previously in his care, was inclined to exclude the mother from the child’s life for his own convenience – where the father has not actively sought assistance for the child and is not child focussed – where there is a need to protect the child from physical or psychological harm through subjection to neglect in the father’s household – where the mother has actively and consistently sought assistance and support for the child – where the mother has become extremely child focussed and has been compliant with orders – where the child needs stable arrangements – child to live with the mother – child to spend substantial and significant time with the father

FAMILY LAW – CHILDREN – Parental Responsibility – where the parties have an inability to communicate effectively – mother to have sole parental responsibility for decisions other than those relating to the child’s connection to Aboriginal culture.

Family Law Act 1975 (Cth) ss 60CC, 64B

APPLICANT:

Ms Radcliffe

RESPONDENT:

Mr Marlow

INDEPENDENT CHILDREN’S LAWYER:

Coast Law

FILE NUMBER:

(P)SYC

439

2013

DATE DELIVERED:

23 December 2014

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATES:

10, 11 and 12 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Mooney

SOLICITOR FOR THE APPLICANT:

Legal Aid NSW (Gosford)

COUNSEL FOR THE RESPONDENT:

Mr Graham

SOLICITOR FOR THE RESPONDENT:

Nash Allen Williams & Wotton

COUNSEL FOR THE RESPONDENT:

Mr Murray

SOLICITOR FOR THE RESPONDENT:

Coast Law

Orders

That all prior parenting orders made in this Court, in the Family Court of Western Australia and in the State Courts of Western Australia in relation to the child L MARLOW born … 2006 are discharged.
That the mother shall have parental responsibility in respect of long term issues for the child (including but not limited to education at school and medical treatment) other than in respect to connection to Aboriginal culture for which the father shall have parental responsibility.
That the child shall live with the mother.
That the child shall spend time with the father as follows provided that the father remains compliant with Order 9 herein:
4.1Until such time as the father holds a current Drivers Licence valid in New South Wales:
4.1.1each alternate weekend from after school Friday to 4.00 pm Sunday with the father to collect the child from school (Out of Hours School Care) on Friday afternoon and return the child to her mother in Town X at the Coles Supermarket on Sunday at

4.00 pm;
4.2After the father obtains a current Drivers Licence valid in New South Wales:
4.2.1each alternate weekend from after school Friday to before school Monday with the father to collect the child from school/ After Hours School Care on Friday afternoon and deliver her back to school on Monday morning.
4.3Each Wednesday in the Town X area from after school until 6.00 pm with the father to collect the child from school/After Hours School Care and deliver the child to the mother in Town X at the Coles Supermarket.
4.4It is anticipated that the child will recommence playing netball in the season commencing in about March 2015 on Saturday mornings and:
4.4.1the father shall be responsible for ensuring that the child attends each and every netball or any other sporting fixture that the child is required to attend or participate in at those times that she is spending with him whether those fixtures are for training or competitive games; and
4.4.2the mother shall ensure that the child has her sports uniform with her at those times.
4.5From the Christmas school holidays commencing in 2014 and each Christmas school holiday period thereafter, the child shall live with each parent as follows:
4.5.1with the mother from the day that school terms ends until 11.00 am on Christmas Day;
4.5.2with the father from 11.00 am Christmas Day until 3.00 pm Boxing Day; and
4.5.3thereafter until the day before school term resumes in a week about pattern of time between the parents commencing with the mother with changeover time to be 3.00 pm at Town X at Coles Supermarket at all times; and
4.5.4if the pattern of week about time results in the child living with the father on the day before school term resumes, he shall return her to her residence at 3.00 pm on the day before school term resumes.
4.6From the commencement of the term school holiday breaks between Terms 1, 2 and 3 in 2015 and each year thereafter, the child shall spend one half of all school holiday time with the father with time to commence from after school on the day that terms breaks up until 3.00 pm on the day that represents the midpoint of the school holiday period noting that if there are an odd number of total nights in the school holiday period the father may have the benefit of the additional night and with changeover to occur directly from school at the break up and at Town X at Coles Supermarket at the conclusion of the father’s time.
4.7The father shall not have the child on the weekend which includes Mother’s Day but in substitution the father will have the child with him on the following weekend at the same times as set out in Order 4.1.1 or 4.2.1 above.
4.8The mother shall not have the child on the weekend which includes Father’s Day but in substitution the mother will have the child with her on the following weekend at the same time as set out in 4.1.1 or 4.2.1 above; and
4.9Such further times as the parties may agree from time to time.
The mother shall make the child available for telephone conversations with the father each Tuesday and Thursday between 5.00 pm and 5.30 pm with the father to initiate the telephone calls between those times and the mother is to ensure that her mobile phone is charged and switched on and that she accepts any calls between those times to facilitate the communication.
When the child is spending time with the father during school holidays the father shall make the child available for telephone conversations each Tuesday and Thursday between 5.00 pm and 5.30 pm with the mother to initiate the telephone calls between those times and the father is to ensure that his mobile phone is charged and switched on and that he accepts any calls between those times to facilitate the communication.
The parents shall, unless another means is agreed between them, communicate by text message about matters relating to the welfare of the child and shall notify immediately by text if that parent will be late for changeovers.
The mother shall each year of the child’s primary education, enrol the child in the Out of Hours School Care (OOHSC) on Wednesdays and alternate Fridays.
The father shall be responsible for any fees for OOHSC directly to the service at least weekly in advance for the child to attend the service on Wednesdays and alternate Fridays until the conclusion of her primary school education in 2018.
The Independent Children’s Lawyer shall provide a copy of these Orders to the Principal of Y Public School and to the Director of the OOHSC Service associated with that school.
Leave is granted for the maternal grandmother to read the family report dated

2 June 2014.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)SYC439 of 2013

Ms Radcliffe

Applicant

And

Mr Marlow

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These are competing applications by the parents of one child, aged eight years nine months (‘the child’).
The applicant is the mother, aged 33. Her household consists of herself, the subject child and a younger child J, aged five, from a subsequent relationship.
The respondent is the father, aged 42. He lives alone; has an older daughter O from a prior relationship, aged 17, with whom he presently does not have any contact. Both parties live on the central coast of New South Wales, about 40 kilometres apart.
The child has been living with the mother for almost two years. Prior to that she lived with the father in Western Australia for six years. The mother wishes to maintain the current arrangements, but expand the amount of time that the child spends with the father. The father is asking for the child to return to live with him and to spend time with the mother as agreed between the parties.
There is a dispute over parental responsibility. Essentially each party asks for sole parental responsibility, although the mother proposes equal shared parental responsibility in relation to religious and cultural observances and upbringing. Included in that is a reference to the fact that the father identifies as Aboriginal, which has implications for the child.

History of relevant events

The parties met and commenced living together in November 2001 on the Central Coast. Soon after they moved interstate for a short period. The mother acknowledges difficulties with her mental health, commencing in her early twenties, in particular anxiety, depression and episodic paranoia. The father has been jailed for assault on a stranger. Both of the parties suffer from epilepsy with occasional grand mal seizures.
The relationship was quite a volatile one. The mother had a tendency to overreact to outside threats in a way intended to be protective of herself from the father, or of both of them, from third parties, which led to abusive language and physical engagement between the parties and with others.
In mid-2005 the parties moved to Western Australia. Both of them had been regular users of cannabis and the mother proposed that they move away in order to break associations in the area, cease using cannabis and raise the child, who the mother was by then expecting.
On 16 November 2005 the father says he took the mother to see a doctor, after she had attempted to push a knife into her pregnant stomach. The mother denies that she did any such thing and that she saw a doctor. There is a letter from a doctor to a psychiatrist[1] referring the mother for assessment and diagnosis, “after attempted suicidal tendency last night”. One possible explanation is that the mother was taken by the father to see the general practitioner to obtain that referral; and that she does not remember it due to her emotional state at the time. Another possible explanation is that the referral was not used. There is no evidence that the mother did see the psychiatrist, or that there was any other consequence of the referral or the incident. I am unable to determine exactly what happened on that day.
[1]Affidavit of father filed 07/11/2014, Annexure ‘A’
In 2006 the child was born in Western Australia. The parties both cared for the child.
On 8 August 2007 the parties separated with the mother moving into a women’s refuge. The child remained with the father. The mother took this course, on her evidence, not by choice, but because the police directed her to do so. It seems likely that the mother was in a distressed state post-separation. Her oral evidence was that looking back on it, she would not have been able to care for the child at that time. The separation was clearly devastating for the mother.
In October 2007 proceedings were commenced in the Local Court of Western Australia and a series of interim orders were made, all for the child to live with the father. The father asserts that the mother made multiple threats against him.
On 12 October 2007 a recovery order was issued on the application of the mother. One month later it was discharged and week about residence began for the child between the parents. She was then aged about 20 months old.
In mid-2008 the mother became pregnant with her second child J, to her then partner in Western Australia, with whom neither she nor that child have apparently had any further contact.
In 2009 the child J was born. He was subsequently diagnosed as autistic. About one month later, at Easter 2009, the mother became concerned about the possibility that the subject child had been sexually abused by the father. She was concerned about bruises between the child’s legs. She took the child to the hospital, where she was examined and no abuse was identified.
On 21 September 2010 orders were made by consent in a Federal Magistrates Court in Western Australia for the child to live with the father and the child to spend time with the mother every weekend. Other orders were made for the parties to keep each other informed of contact details and medical issues.
The father was injured in December 2010, when he fell from a motorised skate board.
In March 2011 the mother raised complaints about the physical care of the child. This is consistent with the father being restricted by his injuries
In April 2011 the father was involved in a work accident, where his shoulder, sternum and spine were injured. He ultimately received some compensation in respect of this injury. His capacity to respond to the needs of the child was reduced by injury and further by the sedating effect of the pain killers he took for the injuries. He did not ask third parties (including the mother) for help.
In July 2011 the mother moved from Western Australia with her son, then two years old, back to the Central Coast of New South Wales. She was returning for assistance and support from her family. She says that she was able to make contact with the father and the child for a couple of months, after which the telephone numbers for the father were disconnected.
Between July 2011 and February 2013 the mother had no contact with the child. I accept that she wrote letters and attempted telephone contact.
In October or November 2012 the father removed the child from her school.
In October 2012 the mother spoke to the Department of Child Protection in Western Australia (‘the Department’) about her concerns in relation to the child.
In November 2012 the mother was contacted by the child’s school with concerns about her welfare. The mother made a report to the Department. The mother was made aware of the number of absences the child had had from school. There is some evidence to suggest that the father had indicated an intention either to home school the child, or to return to the east coast with her.
In November 2012 the mother filed an Initiating Application in a Local Court on the Central Coast, seeking orders for sole parental responsibility and residence for the child.
On 25 November 2012 the father moved from his address in Western Australia to set off, he says, to return to live in New South Wales. He drove a utility fitted out with sleeping and cooking equipment, although he was unlicensed to drive, his license having been medically suspended due to a previous head injury. In fact the father stopped in a rural town in Western Australia and enrolled the child into a school there.
On 21 December 2012 orders were made at the Local Court on the Central Coast of New South Wales for the mother to have sole parental responsibility and residence; recovery orders, a warrant and a publication order were all made.
Three months later, in February 2013, the child was removed by the Department in Western Australia and moved by arrangement into the mother’s care. The mother had travelled to Western Australia with the maternal grandmother to receive the child.
On 7 February 2013 the mother and child returned back to New South Wales. The mother says the child’s hair was infested with nits, which took some time to bring under control. Despite long separation, the child was happy to be reunited with the mother.
On 11 February 2013 orders were made in the Federal Circuit Court for telephone contact only between the father and the child and directions were made for hearing. The child was enrolled into school close by to the mother’s home on the Central Coast.
In April 2013 the father moved from Western Australia back to the paternal grandmother’s home on the Central Coast.
On 19 June 2013 he filed a Response seeking sole parental responsibility for the child and residence back with him.
On 20 June 2013 the father was restrained from entering or remaining in the vicinity of the school at which the child was attending.
The father moved out of the paternal grandmother’s home into a mobile home in a caravan park, which he has made his permanent residence. The park is primarily a “Seniors’” facility.
On 12 August 2013 the parties and child attended a Child Inclusive Conference. The Family Consultant, in noting the issues that impeded resolution, said this:[2]
It seems possible that [the child] will continue to be exposed to her parents’ conflict and allegations against each other regarding risk issues, inappropriate behaviour and not facilitating the other parents’ relationship.
That prediction has certainly come true.
[2]Child Inclusive Memo dated 12/08/2013, p 3
In August 2013 the mother completed parenting courses run at a local primary school.
On 3 September 2013 interim orders were made for time between the child and the father, initially supervised by the maternal grandmother and progressing to unsupervised time.
During the same court event, the matter was transferred to this Court.
On 9 October 2013 the mother filed a Notice of Risk alleging the child had been neglected between July 2011 and February 2012 and identifying aspects of neglect, absences from school, inappropriate clothing and a failure of basic hygiene.
On 9 October 2013 the father filed a Notice of Risk alleging physical violence by the mother against himself and the child at the time of separation and assault and abuse of the child by the mother later that year. He also raised the allegations of sexual abuse made by the mother against him and examination of the child in 2009.
On 7 March 2014 further interim orders were made.
In April 2014 the mother had an epileptic seizure, after which the child called an ambulance and managed her younger brother’s distress in the five minutes or so until the ambulance arrived.
On 29 April 2014 orders were made by consent providing for weekly contact between the child and the father and telephone communication.
In August 2014 the mother commenced a vocational course at TAFE.
In the latter half of 2014 the parties attended legal aid mediation conferences but were unable to come to a resolution.
On 28 September 2014 the mother asserted that she was verbally abused at a changeover by the father’s friend who attended. Both parties travel by public transport, which takes some considerable time and changeovers are at a train station.
The hearing commenced before me on 10 December 2014 and concluded within the allocated time.

The evidence

The parties relied on the following documents:
Mother:
a)Amended Initiating Application filed by mother filed 22/10/2014
b)Form 4 Notice of Child Abuse filed by mother on 09/10/2013;
c)Parenting Questionnaire filed by mother on 16/01/2014;
d)Affidavit of mother filed on 07/11/2014;
e)Affidavit of Ms R (maternal grandmother) filed on 07/11/2014;
Father:
f)Response to Initiating Application filed by father on 19/06/2014;
g)Form 4 Notice of Child Abuse filed by father on 09/10/2013;
h)Parenting Questionnaire filed by father on 31/01/2014;
i)Affidavit of father filed 07/11/2014;
j)Family report dated 02/06/2014.

The mother

The mother impressed as a person determined to be candid in her responses, conscious that she made several concessions about limits on her own capacity as a parent. She also made positive concessions about the father; in particular that there had been no problems in recent months and that the child was enjoying and looking forward to her time with the father.
She was cross-examined quite extensively about events in the past, which is understandable, with particular reference to her decision to leave Western Australia in 2011, with the implicit acknowledgement in that departure that the child was being appropriately cared for by the father.
I came to the conclusion that during the first four years in Western Australia post-separation, where the child lived with the father and spent time with the mother, that the mother always hoped for and tried to effect the child coming to live with her, but was generally satisfied with how the child was cared for.
It was after her return in 2011 to New South Wales with her two year old son that things went badly wrong. She was unable to contact the father and her letters were returned. She became increasingly concerned. She was extremely open to the possibility of the child being returned to her care, when raised by the Department in Western Australia at the end of 2012.
The mother has acknowledged that she has had her hands full with the two children meeting again after a long period of separation from each other. She readily agreed that the child found her younger brother at times frustrating and upsetting and each of the children has physically attacked the other. The evidence supports the mother having appropriate assessment and treatment for her son and appropriate psychological assistance, privately and at school, for the subject child. She has asked for help from her own mother when she needed it and although she might not have sought all the assistance she would like, she has a safety mechanism in place for assistance by the maternal grandmother.
The mother’s evidence about the child’s behaviour at school was impressive. She said, “There has been bullying, although I know she is not completely innocent. She does act out a bit.” The mother appeared to use the phrase “act out” to mean acts of physical aggression. The mother has obtained a referral to a social worker in 2015. The child has seen a psychologist in 2014, but visits ceased. The mother reported that the psychologist had said to her that “the child was a lovely little girl and everything is fine”. However subsequently, the child reported to the mother that she was having problems at school with another student. When the mother attended at the school to inquire she learnt for the first time, to her disappointment, that the child had hit this girl earlier in the year. The mother determined to speak to the welfare teacher about an investigation into what the problem was. The day before her appointment with the welfare teacher, the child hit the same girl again.
With this conduct in mind, consistent with the child’s behaviour at home of hitting her brother when he was annoying her, the mother is determined to seek out effective help for the child in 2015.
The mother was also candid about her epilepsy. Her evidence is that the seizure in April 2014 has been the last one and that her neurologist has altered her medication in a way that has been effective for her. Again, she made ready concessions that managing the children sometimes tired her out and did bring on, at least the sensation of, a possible seizure. When that happens, she makes contact with the maternal grandmother and seeks assistance with the care of the children.
The mother also agreed that she often felt angry with the father. She had a particular dilemma. She started the child playing netball on Saturdays. She saw a benefit for the child in participation of a sport and in a break away from her brother at weekends. The orders provided for the father to see the child on Saturdays. He was unwilling and unable to get her to netball on Saturdays, so for five weeks the child missed seeing the father. The mother stated that the child was upset. The proposition was put to her that it was more important for the child to see the father than to play netball. The mother said that she did not think so. I did not infer that she meant that she regarded time with the father as unimportant, rather that she thought that the father could have compromised by seeing the child on Sunday and by making the effort to come and watch her play netball on Saturday.
The mother’s description of the parties’ inability to communicate well was quite illuminating. She said they can get along well at changeovers, unless the father is late, then when she asks why the father is late, they each believe that one is “yelling at the other”. It does seem to me that both are sensitive to criticism and do not back away when they feel criticised, so that arguments escalate quite quickly.

Relationship with the maternal grandmother

The mother conceded that she had clashed with the maternal grandmother as a younger woman and that part of the reason for getting away to Western Australia was because of that clashing. The maternal grandmother has apparently never liked the father and did not conceal her views from the mother. It led to trouble. The mother said she now gets along reasonably well with the maternal grandmother, although she still challenges the mother’s behaviour. The change in the mother is that she now accepts that when the maternal grandmother does that, it is with the intention to promote the child’s best interests.
No doubt with the mother’s return to the Central Coast, there was a reconciliation, to a great extent, between the mother and the maternal grandmother. The child has a very close association with the maternal grandmother.
All adults will have to be respectful of the child’s relationship with each of them and conceal their feelings of dislike from each other.
My overall impression was that the mother has made a profound commitment to being a mother to the children. She does not have a current relationship. She has made a decision to ease the conflict between the two children by setting up a separate bedroom in her two-bedroom apartment for the subject child with a bed and a desk for school work and sleeping in a double bunk arrangement with the younger child in the other bedroom.
She impressed as extremely focussed, both on the welfare of the children and the need to ask for help for herself and them as required. She has complied with the orders for Sunday contact for the child and the father, which involves public transport by both bus and train, and I am confident that whatever orders are made, the mother will make every effort to comply with them.

Drug use

The mother readily concedes varying levels of use and reliance on marijuana. Given her overall candour and there being no evidence conflicting with her statement, I accept what the mother says, that she ceased using cannabis in June 2011, just prior to leaving Western Australia.

Mother’s conduct

For a period of time in 2006 the mother slept with a knife under her pillow. I accept her evidence that she did so to protect everyone in the household at that time, which was shortly after the child was born. The context for that practice was a burglar having entered the property, who was encountered by the mother. Police were called. Out of fearfulness for herself, the child and her partner, she began that practice, but ceased it within six months. There is nothing about that behaviour that constitutes a risk to the child then or now, eight years later.

A new psychologist for the child

The mother has taken some trouble and effort to establish a place for the child with a psychologist in Town M. The mother has sought the assistance of a social worker who will assist her to take the child to appointments. The social worker assured her that she would provide help as needed, in response to the mother’s statement, “I don’t care where I have to go I will go wherever it takes to get her the help that she needs”.
It seems to me that the mother is clear sighted about the need for the child to have specific assistance to address deficiencies in her learning, both social and academic, and to also address some of the emotional difficulties she still has in making the adjustment of living with the mother and brother and seeing the father less often. This is despite the fact that the child herself has expressed a wish to stay living with the mother; the change has nonetheless been a very big one for the child.

The maternal grandmother

The maternal grandmother presented as a youthful grandmother, assured, intelligent and thoughtful. She gave birth to the mother when she was about 18 years old. In 1990 she married her current husband and they have two young adult daughters, aged 21 and 18. The mother took her new step-father’s name after the maternal grandmother remarried and apparently enjoyed a close bond with her step-father as a child.
Adolescence was full of challenges for the mother. At 12 her first step-sister was born. In the following year, she had her first epileptic seizure. She was taken to doctors and medication began, which effectively controlled those seizures. At the beginning of the following year, in January 1996, her second step-sister was born.
In 1998 the mother began to look forward to being able to obtain a driver’s license. She was taken to doctors and weaned off medication to assess her eligibility. Unfortunately she experienced another seizure and medication was reinstituted. She did not apply for a licence.
From that time the mother and maternal grandmother clashed over everything and the mother became obstinate about achieving independence on her own terms. In particular, they clashed over the suitability of the father as a partner. The evidence suggests that the mother has come to accept the maternal grandmother’s view in retrospect about the father.
The maternal grandmother works three to four days a week. She lives close by to the mother’s home and maintains regular contact to see both children and to ensure that the mother is well and coping. She was observant about the children and was able to describe the subject child as:
a)     Wanting a lot of attention;
b)     Getting upset if she does not get her own way;
c)     As being very lovable; always readily approaching for a hug;
d)     That she tried too hard to be friends with other children and became frustrated when she was expected to take turns with toys.
The maternal grandmother agreed with the proposition that the child still does not know how to share. She reflected that the child loves her two maternal aunts.
In relation to the child J, the maternal grandmother described him as “lovable with a cheeky grin” and as “having come a long way since he arrived back in New South Wales. He was not speaking at first, but it is now possible to nearly have a conversation with him”.
The maternal grandmother has observed the children getting frustrated with each other; each child just as much as the other.
It appears to me the maternal grandmother has made a considered decision to be available to the mother, to maintain a loving and affectionate relationship with her and the children, but to be circumspect about organising her life for her, or becoming over-involved in the arrangements for the child with the father.
The maternal grandmother politely conceded that she has little respect for the father as an individual, although was simply unable to say what he was like as a father. She regards him as generally untrustworthy. She obviously made every effort to dissuade the mother from travelling away to Western Australia with the father, when she had just become pregnant. She did not step back from her negative view and opposition and the mother was offended and defiant. It is the mother who has changed her view, which has led to reconciliation between the two women.
I consider that the maternal grandmother is a very significant source of support to the mother; that she is close by and handy when she is needed; she is of course skilled in recognising the signs of a possible seizure for the mother, having observed her condition over the 20 years since it was first diagnosed. The maternal grandmother calls past not less than weekly, just to have a quick chat with the mother and the children, but there are also social occasions and holidays involving the whole family.
The maternal grandfather likely had a fair degree of conflict with the mother in adolescence and at the time she left for Western Australia and their relationship has not been fully reconciled. However I accept the evidence that the mother and her children are welcome in the home of the maternal grandparents.

The father

The father presented as a rather introverted man, concerned to go about his own activities without interference by others. My strong impression is that he tried to do everything himself and without assistance. Whilst that is strength in terms of self-reliance, in his care of a young child, it was a weakness.
The child was in the father’s sole care from separation in August 2007 until February 2013, a period of about six and a half years. Until 2011, although his care may have been rather idiosyncratic, it was adequate. However, when he suffered injuries in 2010 and 2011, he suffered through the consequences, using pain relief to get through the day and was insufficiently available to meet the child’s needs. Her attendance at school, which had not been good from the time she started pre-kindergarten in 2010, deteriorated through 2011 and was unacceptably poor by 2012.
In 2012 he made her lunch less often, but sent her to school with $10.00 to buy lunch. She was given breakfast at school and may have been unable to manage the money she was given. She told the father that teachers had taken it from her and that is why she was given breakfast and lunch in the room for underprivileged children. The father believes that the money was stolen by teachers, but did not want to make an issue about it. He did not consider that some situation may have arisen, which caused the child some difficulty, for instance being overborne by another child, or spending it on herself and others. My impression is that the father tried to stay away from engagement with the school as much as possible. The signs were there in the child’s school reports that her attendance at school was inadequate and that her learning was inadequate. Strong statements were increasingly made about the need for her to attend. If the father thoroughly read the school reports and attendance statements, he certainly did not act on them.
In October 2012 matters came to a head. The child arrived at school in her pyjamas and a decision was taken at school to shower her, wash her hair and put her in clean clothes. The father was enormously offended by the school having taken this course and subsequently withdrew her for home schooling.
His evidence about what happened on that day is illuminating. He said the child was dressed for school in her uniform, that she probably spilt milk on herself at breakfast, because he found her uniform in the laundry basket after she had left. He told inconsistent stories, that is, either that he saw the spilling of the milk and told her to be quick and get changed before the school bus came and did not see what she had changed into and the other story, that he did not know that she had had the spilling accident and found out afterwards through the laundry basket. In any event, he had dropped off to sleep in the lounge as a result of the pain killers he was taking at the time these events were occurring.
If I accept his evidence that the child was used to dressing herself in the morning, then her choice of pyjamas to wear to school suggests that she only had one uniform or only one clean uniform and did not know what else to do. Even at six, she is likely to have been significantly teased about what happened. The father’s reaction was to be defensive, “I was only doing the best I could do” and critical of the school.
From mid-2012 B Primary School had become increasingly concerned about the welfare of the child and began to keep a log of her absences and various presentations. To the extent that the records suggest resistance by the father to engagement, I accept that that is likely to be how the father was behaving.
The father loves the child and has been focused on her care, but the life they led in Western Australia was an oddly solitary one. The father apparently believed that he had, or in reality had, no one to help him. He seems resistant to authority, although not entirely anti-social. For instance, he was told more than once when the child was younger, that she should be in a booster seat in a motor vehicle. He relied on the fact that on an occasion when he was stopped by police for an unrelated matter, that they did not take him to task about the child not being in a booster seat. He likes to run his own race and come to independent conclusions.

Exclusion of the mother

The child started at pre-kindergarten in 2010. There was no reference to the mother’s details in the enrolment application completed by the father, although he annexed some consent orders that had been made to the document. In his oral evidence he said that he had not done so because it was pointless; there being a protective order in place for his benefit. After careful cross-examination he conceded that he was mistaken about that and that there had not been. This reflects a failure by the father to act on the benefit to the child of having the mother involved in her life, including her life at school. I consider that it suited the father to have the mother kept at a distance and that because he had an order for residence, he felt comfortable with directing to what extent the mother could see the child, whatever the orders said. It is a significant matter.
Of the three protective State orders that have been made in Western Australia, two were for 24 hours made in 2007 and 2008. One was made for a period that may have extended as long as two years and two months, made 10 August 2007, although the exhibit indicates that the order was revoked. I am unable to determine when it was revoked,[3] but if it was in place until 26 October 2009, the date on the face of the document, it had still expired well before the child commenced school in 2010.
[3]Exhibit 13
In 2010 kindergarten teachers identified the child’s inability to recognise colours. The father said that he was sure that she did know those colours because she had helped him assemble bicycles and paint tricycles for herself. That could well be true. The difficulty is that the child was unable to enunciate the names for the colours that she had seen. It suggests limited conversation between the father and the child.
The father revealed an accepting attitude to whatever standard of learning the child could achieve. He is not an interventionist, but although he referred to having done some learning at home, it seems apparent that he has had a limited capacity to assist with her formal learning. Her reports indicate that she struggled with many aspects. The father said this: “I was aware of that. She did write letters backwards sometimes; I was dealing with that in the course of its time”; and again he was defensive, “I believed she’d develop in her own time, I did the best I could with the material I had”.
It seems to me that the father sees seeking help for himself and the child as a kind of failure, rather than a positive step and a willingness to be open to the expertise of others.

Deterioration in care

In 2011 the child attended school approximately half the number of days she should have.

In 2012 the percentage dropped to 39 per cent, although this was distorted by the fact that the father removed her from school entirely in October of that year.
By October 2012 the child was really taking care of herself. She went to school in pyjamas on one occasion, on another wearing her big dress-up shoes rather than her school shoes. She is described as attending at school filthy, smelling of urine and having no recess, no lunch, and no shoes. A list of concerns began to be compiled from 7 June 2012 and by October 2012, the school was in regular correspondence with the Department. It does seem to me that the father gave up attempting to get the child to school in the last term of 2012. Partly that was a protest against the decision of the school to shower the child and put her in clean clothes, but it was also because the father gave up on the school and formal education for the child. It all became too hard.
He took the decision to move away; initially to move back to the east coast, but in fact he headed south in a journey which counsel for the Independent Children’s Lawyer accurately described as “a boy’s own adventure”. He set off in a vehicle packed with his and the child’s possessions and their five dogs. The vehicle was registered but the father did not have a license. He took that chance. He was twice pulled over by police and the vehicle impounded. The father and the child stayed in caravan parks, bed and breakfast accommodation, a hotel and a hostel for stranded and homeless people.
The child did not come to harm, but she did not go to school and it is impossible to know how these two or three months affected her. It may have been fun, but at times it could have been frightening. The father did not keep the appointments he made for home schooling to commence and there is no suggestion that he attempted any formal education with the child during the course of this travelling. It was potentially the beginning of a permanently itinerant life.

Allegations of violence by the mother towards the father

The father was carefully taken by counsel for the mother to all his allegations of violence directed against him or the child by the mother. There are no corroborating records from police, hospitals or medical records for the father being injured by the mother and he did not make such a claim. I have little trouble accepting that the mother was emotionally explosive with the father and may well have lashed out, but I consider it unlikely that she violently attacked the father or deliberately injured him or the child. There is a real possibility that the father was exaggerating incidents arising from arguments and disputes between them.
The father did present as a man who considers himself to have been injured and victimised by others, which may well be the case, but it has led him to focus on his own tribulations and distracted him from focusing on the child’s needs. He is also obstinate. One example of that is his reluctance to follow up with fresh medical advice after an epileptic seizure in Western Australia in 2013, when he had the child in his care.

Connection with Aboriginal culture

The father identifies as Aboriginal. He has known of that ancestry since he was about 14 years of age when his grandmother told him. His interest appears to have developed over time and I accept that he has taken the child to NAIDOC week celebrations and that they watch programs on National Indigenous Television. The child has not yet been involved in activities or festivals, but she should have the opportunity to learn more about the father’s family and connection to land and culture.
Overall I formed the impression that the father is a loving father. He resists being forced or even persuaded to go about things in any way other than his own. He has provided the child with unusual experiences, which will have been informative and entertaining for her, such as building and repairing bikes, cars, engines and motors.
The child has expressed the desire to see the father “heaps”. She enjoys his company and no doubt is fully aware of just how precious she is to him.

Family Consultant

The family consultant had recommended in her report that the child live with the mother and spend time with the father on alternate weekends and one afternoon each week. Also that the child continue her therapy with a treating psychologist.
The family consultant did not resile from that position, but agreed that the priority for changeovers should be that the child not be exposed to conflict between the parents, as has happened more than once over the last nearly two years.

The law

The objects of the Family Law Act 1975 (Cth) (‘the Act’) in relation to parenting orders are to ensure that:
a)     Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests.
b)     Children are protected from physical and psychological harm.
c)     Children receive adequate and proper parenting to help them achieve their full potential.
d)     Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a Court must have regard to the best interests of the child as the paramount consideration. The way a Court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.

Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both of the child’s parents and S 60CC(2)(b) - the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or family violence

In this matter, I accept the submission made on behalf of the mother that the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse or neglect or family violence, is a relevant consideration.
The child does need protection from the risk of physical or psychological harm, from being exposed to neglect. Greater weight must be given to that consideration. However the child does have a meaningful relationship with both of her parents; very much so.
Despite a long separation from the mother, she has reconnected and is enjoying living in the mother’s care. She was raised by the father for six and half years; the last two of them in the absence of the mother entirely. She has a close loving association with the father.

Section 60CC(3)(a) – 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

The child presented to the family consultant as “pleasant, but is either not willing or not able to elaborate on her thoughts very much”. When given the opportunity to express a view about where she would like to live, the child was clear to say that she wanted to live with the mother. This is consistent with the mother’s evidence that the child tells her that she loves the father very much, but that she wants to live with her.
Likewise, the child was very clear to say that she wanted to spend time with the father. Having said that, she indicated that she would be content living with either parent through the week and spending weekends with the other parent.
Unusually for an eight and a half year old child, she has had extensive experience of living with each parent. She is hardly likely to remember the time before her parents separated; she was less than two years old, but she has been with the mother and brother for the past two years.
I do give some weight to the child’s expressed view, given that experience and her willingness to express a view.

Section 60CC(3)(b) – the nature of the relationship of the child with each of their parents and other persons

The child has her most important relationships with each of her parents and also with the maternal grandmother. She told the family consultant that she felt slightly closer to the mother than to the father, but closest of all to the maternal grandmother. She also has a developing relationship with her younger brother.
Quite perceptively the mother described her two children as both being used to being only children. They have clashed and complained about each other. The child has complained extensively to the father about her younger brother and has found a sympathetic ear there. However I note that her brother is important to the child. She said she felt close to him when they played together, but not so close at other times.[4]

Section 60CC(3)(c) – the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

[4]Family report dated 02/06/2014, par 35

The mother made the decision in mid-2011 to leave the State of Western Australia and to leave the child, then aged five, in the care of the father. I accept that she wrote letters and tried to make telephone contact with the father. I also infer that she was confident that the child would be sufficiently well looked after by the father when she left.
However there is no doubt that each of the parents has wanted the opportunity to make decisions about the child and at different times each has felt excluded by the other parent. The father excluded the mother from information about the child at school. He may have thought she was no longer interested but more likely he closed his mind to her involvement.

Section 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

The father was exclusively responsible for the maintenance of the child whilst she lived in his sole care between 2007 and early 2013. The mother has not been in paid employment and has had the care of a younger child.
More recently the father has been in remunerative employment. He is paying a low rate of child support, $12.46 per fortnight, and is waiting for a child support assessment before he pays any more than that, despite presently having an income of $800 to $1500 per week, after tax.
I accept that the father spends money as he sees fit in the child’s best interests when she is with him, but the relationship between the parents is such that it probably did not occur to the father to simply offer money for basics such as food, clothes, shoes, transport and entertainment.

Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances including any separation from either of his or her parents, or any other child or other person

Both parents want the child to live with them. To remove the child from the mother’s home after almost two years runs a real risk of adverse consequences.
The child has now had the experience of attending school punctually every day, dressed in her uniform with all that she needs for the day. Even more importantly, she has restored her relationship with the mother and has developed a relationship with her young brother. She has a close and important relationship with the maternal grandmother, who is vigilant from a respectful distance about her care. I accept also that she loves her two aunts and the maternal grandfather.
If she were to live with the father, there is a real risk that she would not attend school regularly, especially if the father felt unwilling or unable to get her to school. She would likely change schools to be close to his residence and she would feel the effects of being separated from her extended maternal family, which has embraced her return. She would return to a less social, more solitary way of living.

Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent

There are very real practical difficulties in this matter, despite the fact that the parties live only 40 kilometres apart. Neither drives a car or has a driver’s license. The father expects to have his license restored to him in mid to late 2015. The mother does not have a driver’s license and appears not to have explored the possibility of obtaining one. Her seizures being adequately controlled by medication that may be open to her.
The mother is obliged to take both children on bus and train trips on the changeover to meet the father and if the father is late, as he often is, she is delayed for an hour waiting for the return bus. It is likely to be something that the child J has come to dread, possibly the mother also.
The child is old enough to manage spending time directly collected from school and returned to school. That should happen as often as possible, to eliminate the need for direct contact between her parents and for the protests to the extent that he makes, of her younger brother about a boring trip. When the father regains a driver’s licence that can happen. Pending that development, the father should collect the child from school and pay for her to attend out of hours care in case he is late, and return her to a venue in the mother’s area.

Section 60CC(3)(f) – the capacity of the child’s parents and any other person to provide for the needs of the child

The mother is developing the capacity to meet all of the child’s needs. She is attentive to her education and to the extent that she is unsure, the mother seeks professional advice and follows up on it. This is an important strength in her capacity. The mother is also obtaining assistance for herself in order to manage a feature of her past, which was emotional outbursts, probably arising from her anxiety.
The father has the capacity to meet the intellectual needs of the child to some extent, although he greatly undervalues formal education for her. He also failed to meet the emotional needs she needed in order to maintain a relationship with the mother and to socialise at school.

Section 60CC(3)(g) – the maturity, sex, lifestyle and background of the child and either of their parents

The father is aged 42; a rather solitary man, with an idiosyncratic way of parenting. He has skills which easily enable him to obtain paid work and he has a willingness to work. He is of Aboriginal decent on the maternal side and is slowly planning to develop that connection for the benefit of the child. He has an older child aged 17, who does not wish to have contact with him at this time and otherwise appears to be disconnected from the usual links of friends and family.
The mother is aged 33; she lost contact with her own father as a very young child and clashed with the maternal grandmother and maternal step-grandfather to the point of alienation in her mid-teens. She has struggled with depression and anxiety, but is now robustly seeking assistance and working hard to think and live differently. She has matured considerably since leaving New South Wales in the first place and again since returning to New South Wales in 2011.
The child is an eight year old child, who is clearly resilient and resourceful. She lacks some social skills around sharing and forming friendships, but she is making good progress in the mother’s care.

Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child

The child has the right to enjoy her Aboriginal culture, including the right to enjoy that culture with the father. Sadly the paternal grandmother died without the child having the opportunity to hear much from her about her connection to her grandmother’s people.
The child will be able to learn and participate in culture with the father.

Section 60CC(3)(i) – the attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

In 2005 the mother left New South Wales to travel to Western Australia with the intention to get away from the drug culture that both she and the father had been a part of, in order to responsibly raise a child together. Unfortunately they were unable to sustain a relationship, nor keep away from drug use.
The mother was able to acknowledge that she was not able to provide fulltime care to the child in 2007, when she went into the father’s care, but she has never given up her interest in the child, or her wish to provide care for her.
The father readily accepted responsibility for the care of the child from the time she was born and sole responsibility after separation. However the father was inclined to exclude the mother from the child’s life for his own convenience, overlooking some of her needs.

Section 60CC(3)(j) – any family violence involving the child or a member of the child’s family

Restraining orders were made in Western Australia; two 24 hour orders and one other order for the protection of the father and the child from the mother, which at its longest expired at the end of 2009.
The father used the existence of the order to ensure that the mother was kept away from him and the child. I consider that he knew that the order had expired when he enrolled the child in pre-kindergarten for 2010 and used the existence of an order as an excuse for not including the mother’s details. It may have made his life easier, but it did not do the same for the child.

Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings

It is essential that the child now has stable arrangements until she is independent. The mother has pursued help and supports for the child. She is doing well in her current school; she is happy in the mother’s home, she is enjoying time with the father and would like more. It would not be in her best interests to disrupt this recent stability, especially at school.
Accordingly, I have made orders that the child continue to live with the mother and for the mother to have parental responsibility for issues other than connection to Aboriginal culture.
Time and communication orders are subject to certain conditions.
First that until the father has a valid drivers’ licence, the child is to be returned on the Sunday afternoon of weekend periods, to avoid lengthy travel on Monday mornings. The father does not have a good record of getting the child to school on time or at all. He is to be responsible for collecting her from school on Friday afternoon and returning her to the mother on Sunday afternoon.
The father is also to take the responsibility for paying for the child to attend after school care on the relevant Friday and Wednesday afternoons. The mother will have the responsibility of booking the child in to such care. It is reasonable for the father to be expected to pay in advance for booked spots in after-hours care. In that way, if there is any delay for the father in collecting the child, she is not upset or inconvenienced by waiting at school.
There are also orders for holiday time; those changeovers would ideally have taken place at a contact centre in the local area to where the mother lives, with each party to undertake the assessment process for the centre to be used. However there is no evidence of a local centre, so the shopping centre in Ton X is the next best alternative. The parents will need to make the exchange swiftly and without arguments to avoid the child being exposed to conflict between the parents, which flares quickly as a result of the habitual pattern the parents have of criticising each other and not stepping back.

I expect that the extended maternal family will be a steady source of love and support for the child. It may be in the years to come, that the maternal grandparents, or one of them, can assist in changeovers, but if not, for all non-school changeovers exchange between the parents in the mother’s local area is the best way for the child. Orders are made accordingly.
Provision has also been made for telephone contact.
Finally there is an Order requiring the father to support the child’s involvement in her sport of netball. The social benefit to the child from being in a team and making friends was commended by the Family Consultant. This aspect is too important to be overlooked. If she were to miss the game every second weekend, she could ultimately be excluded from the team. She will likely value her father’s support and attendance at games.
Orders are made accordingly.

I certify that the preceding one hundred and fifty one (151) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 23 December 2014.

Associate:

Date: 23 December 2014

[2014] FamCA 1173

23 December 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Remedies

Procedural Fairness