Ramsden & Darnell
[2023] FedCFamC2F 455
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ramsden & Darnell [2023] FedCFamC2F 455
File number(s): NCC 657 of 2021 Judgment of: JUDGE KEARNEY Date of judgment: 13 March 2023 Catchwords: FAMILY LAW – parenting – whether to change primary residence for 5 year old child – mother’s inability to act protectively - repeated exposure to family violence – limited parental capacity -failure to meet educational and medical needs – material possibility of risk - co-parenting relationship having improved – equal shared parental responsibility appropriate – change to live with father – change of school - regularised consistent time with mother – meaningful relationships will be promoted – best interests of child . Legislation: Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth)
Cases cited: A v A [1998] FLC 92-800
Berys & Berys [2022] FedCFamC2F 1162
Blinko & Blinko [2015] FamCAFC 146
Director-General, Department of Family and Community Services (New South Wales) v The Colt Children [2013] NSWChC 5
Eastley & Eastley [2022] FedCFamC1A 101
Godfrey & Sanders [2007] FamCA 102
Isles & Nelissen [2022] FedCFamC1A 97
Jones v Dunkel [1959] 101 CLR 298
M & M [1988] 166 CLR 69
Mazorski & Albright [2007] FamCA 520
Medlon & Medlon (No 6) (Indemnity Costs) [2015] FamCAFC 157
MRR v GR [2010] HCA 4
Napier & Hepburn [2006] FamCA 1316
Penfold & Penfold (1980) 144 CLR 311
Russell & Close [1993] FamCA 62
Slater & Light [2011] FamCAFC 1
Sweet & Sweet [2022] FedCFamC2F 676
Whisprun Pty Limited v Dixon [2003] 200 ALR 447
Division: Division 2 Family Law Number of paragraphs: 181 Date of hearing: 6-8 March 2023 Place: Newcastle Counsel for the Applicant: Ms Vogel Solicitor for the Applicant: Umbrella Legal Solicitor for the Respondent: Mr Predny, Fowler Predny Legal Counsel for the Independent Children's Lawyer: Mr Willoughby Solicitor for the Independent Children's Lawyer: Todd Street Lawyer ORDERS
NCC 657 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS RAMSDEN
Applicant
AND: MR DARNELL
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE KEARNEY
DATE OF ORDER:
13 MARCH 2023
THE COURT ORDERS THAT:
Parental responsibility
1.Subject to Order 2, the applicant, MS RAMSDEN (‘the mother’) and the respondent, MR DARNELL (‘the father’) will have equal shared parental responsibility for the child, X born in 2017 (‘X’) for decisions about major long-term issues as they relate to X including, but not limited to:
(a)The child’s long-term care, welfare and development;
(b)The child’s education (both current and future);
(c)The child’s religious and cultural upbringing;
(d)The child’s health;
(e)The child’s name; and
(f)Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
2.At the father’s sole discretion, the father is at liberty to enrol X:
(a)at B School; or
(b)any school for which X may be zoned from time-to-time; or
(c)otherwise subject to a proper exercise of equal shared parental responsibility pursuant to Order 1 herein.
Live with and spend time with orders
3.X will live with the father.
4.For the purpose of implementing Order 3, the father shall collect X from the changeover location at 5.00pm on Sunday 19 March 2023 and thereafter, X shall commence spending time with the mother for the balance of the current school term on each second weekend thereafter from 6.00pm on Friday until 5.00pm on Sunday.
5.Unless otherwise agreed between the parties, commencing Term 2 of 2023 (as exercised by X’s school), X will spend time with the mother as follows:
Term time
(a)During school terms as exercised by X’s school, on the weekend following the first week of schooling in each school term, and continuing each alternate weekend thereafter, from Friday at 6.00pm until Sunday at 5.00pm;
School holidays
(b)During school holidays as exercised by X’s school:
(i)Until X turns 12 years of age –
A.During every Autumn and Spring school holidays for 10 days to be agreed in writing between the parties but, failing such agreement, from 6:00pm on the last day X is required to attend school until 5:00pm on the second Monday following commencement of the mother’s time;
B.During every Winter school holidays for seven (7) days to be agreed in writing between the parties but, failing such agreement, from 6:00pm on the last day X is required to attend school until 5:00pm on the immediately following Friday;
C.During the Summer school holidays in 2023 and each alternate year thereafter, for 21 days to be agreed in writing between the parties but, failing such agreement, from 5 January at 6.00pm until 26 January at 5.00pm or 5.00pm on the day before X is due to commence Term 1;
D.During the Summer school holidays in 2024 and each alternate year thereafter, for 21 days to be agreed in writing between the parties but, failing such agreement, from 5.00pm on the last day that X is required to attend school until 5.00pm on the 22nd day thereafter;
(ii)Once X turns 12 years of age:
A.For the Autumn, Winter, Spring and Summer school holidays commencing 2029 and each alternate year thereafter, for the first half to be agreed in writing by the parties but, failing agreement, from the first Saturday after the last day of the preceding term at 2.00pm until the middle Sunday of the school holiday period at 2.00pm;
B.For those commencing in 2030 and each alternate year thereafter, for the second half to be agreed in writing by the parties, but, failing agreement, from the middle Sunday of the school holiday period at 2.00pm until the final Sunday before the commencement of the following school term at 2.00pm.
6.Notwithstanding Orders 3, 4 and 5 above, X will spend time with the parties as follows:
(a)With the father:
(i)On the Father’s Day weekend in each year from Saturday at 6.00pm until Sunday at 6.00pm;
(ii)At Christmas:
A.In 2023 and each alternate year thereafter, from Christmas Eve at 3.00pm until Christmas Day at 1.00pm;
B.In 2024 and each alternate year thereafter, from Christmas Day at 1.00pm until Boxing Day at 3.00pm;
(b)With the mother:
(i)On the Mother’s Day weekend in each year from Saturday at 6.00pm until Sunday at 6.00pm;
(ii)At Christmas:
A.In 2023 and each alternate year thereafter, from Christmas Day at 1.00pm until Boxing Day at 3.00pm;
B.In 2024 and each alternate year thereafter, from Christmas Eve at 3.00pm until Christmas Day at 1.00pm;
(iii)On the mother’s birthday:
A.If her birthday falls on a school day THEN on the immediately following Saturday from 11.00am until 3.00pm;
B.If her birthday falls on a non-school day, from 11.00am until 3.00pm.
(c)On X’s birthday if such day falls on a school day THEN with the mother on the immediately following Saturday from 11.00am until 3.00pm;
(d)On X’s birthday if such day falls on a non-school day THEN with the party that she would not otherwise see that day, from 11.00am until 3.00pm;
Implementation
7.For the purpose of implementing these Orders, unless otherwise agreed in writing between the parties:
(a)The father or his nominee will deliver X to the mother or her nominee at the corner of C Street and D Street, Suburb E in the State of New South Wales at the commencement of X spending time with the mother;
(b)The mother or her nominee will return X to the father or his nominee at the corner of C Street and D Street, Suburb E in the State of New South Wales at the conclusion of X spending time with the mother.
Telephone and electronic communication
8.From the date of these Orders and until X turns 14 years of age, both parties may communicate with X on Tuesdays and Thursdays in each week between 6.30pm and 7.00pm whilst X is in the care of the other party and, for this purpose:
(a)Communication will be implemented by the party who is not caring for X at that time by them telephoning a number or otherwise initiating electronic communication with a source to be provided by the other party, such telephone number or source to be provided to the first-mentioned party in writing by 4.00pm Monday 20 March 2023;
(b)The other party will make X available for such telephone or other electronic communication and will afford X privacy for the duration of any such telephone call or other electronic communication.
9.Upon X turning 14 years of age, both parties will communicate with X at the sole discretion of X and, for this purpose:
(a)Each of the parties will not prevent X from communicating with the other party pursuant to this order should X wish to do so;
(b)Each of the parties will afford X privacy for the duration of any such communication.
Injunctive relief
10.Each party is restrained and an injunction shall issue prohibiting them from:
(a)Denigrating the other party, their family or their friends to or in the presence or hearing of X and further will:
(i)Use their best endeavours to ensure that no one else does so;
(ii)Immediately remove X from any environment in which such denigration is occurring;
(b)Discussing these proceedings with X or in her presence, or showing her copies of any documents produced for the purposes of these proceedings;
(c)Publishing any of the following on social media:
(i)Negative or derogatory comments about the other party;
(ii)Any information relating to or arising from these proceedings;
(d)Enrolling X in an extra-curricular activity that would or is likely to occur during periods where X is living or spending time with the other party without first obtaining the consent of the other party.
11.The mother is restrained and an injunction shall issue prohibiting her from consuming alcohol whilst X is in her care, and for 24 hours prior to X coming into her care.
12.Pursuant to s 68B of the Family Law Act 1975 (Cth) (‘the Act’) and for the personal protection of X, the mother is restrained and an injunction shall issue prohibiting her from:
(a)Intentionally or knowingly bringing X into contact with, or in the presence of Mr F born in 1990; and/or
(b)Otherwise intentionally or knowingly permitting X to remain in contact with, or in the presence of Mr F born in 1990.
Professionals information and authority order
13.Each of the parties is entitled, at their own cost, to obtain directly from any education, health, welfare or other professional attended by X, copies of any reports, notices or other verbal or written advice affecting the education, health and/or welfare of the child and, for this purpose:
(a)Each of the parties will immediately notify the other of the names and contact details of the relevant education, health, welfare or other professional and advise the other party in writing of any changes to those details within seven (7) days of such a change;
(b)Within seven (7) days from a written request by one party, the other party will do all acts and things and sign all documents as may be reasonably necessary from time to time to allow the first-named party to exercise their entitlements under this Order.
Liberty to attend
14.Each of the parties is at liberty to attend any school and/or extra-curricular activities to which parents would ordinarily be expected to attend.
Notification order
15.Each party is to notify the other as soon as is practicable on the happening of any of the following:
(a)Any serious medical problems or serious illnesses suffered by X whilst in their care;
(b)X being hospitalised;
(c)X being:
(i)prescribed medication which is to be taken during X’s time with the other party, including the name of the medication and the dosage;
(ii)given medication within 24 hours prior to X moving into the other party’s care;
(d)Any social, school or religious functions to which X is to attend or which otherwise relate to X;
(e)X being involved in an accident.
Change of details order
16.Each party will provide the other with an operable telephone number and their current residential address for all periods when X is in their care, and advise the other party in writing of any changes within seven (7) days of the relevant change.
Liberty to communicate with the other party
17.Each party is at liberty to contact or communicate with the other party in relation to the following:
(a)The implementation of these orders;
(b)X’s welfare.
Other orders
18.By 4.00pm on Monday 20 March 2023, the father is to make arrangements with the Independent Children’s Lawyer for X to meet with the Independent Children’s Lawyer for the purpose of him explaining these orders to X and the meeting should, where practicable, occur by Monday 20 March 2023.
19.Upon the expiration of the appeal period, the Independent Children’s Lawyer is discharged.
20.All applications are otherwise dismissed.
IT IS FURTHER ORDERED THAT:
21.Pursuant to s 117(4)(a) of the Act, the costs application brought by the Independent Children’s Lawyer against the mother is dismissed.
22.The father is to make a contribution towards the costs of the Independent Children’s Lawyer fixed in the sum of $6,406.19 (less any contributions already made by the father) and paid by fortnightly instalments of $100 commencing Monday 3 April 2023.
IT IS NOTED THAT:
A.Subject to the calculation of time pursuant to Order 5(b)(ii), the last period of time spent by X with either party during the school holidays may be shorter (or longer) than the period of time that X immediately spent with the other party.
B.In making Order 8, it is intended that where practicable when X is speaking to the mother, she will also have the opportunity to speak with her half-brothers G and H.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Ramsden & Darnell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE KEARNEY
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the reasons delivered orally amenable to being read.
INTRODUCTION
There is a little girl whose parents cannot agree on who is best placed to care for her. Both parents smoke marijuana and each of them have, to varying degrees, let their daughter down in terms of her education and medical needs and her exposure to family violence. Should I keep the girl in her mother’s home, where her half-brothers also live, or move her to the largely untested household offered by the father?
Out of respect for each person’s gender and social status, other than parties and the child, persons will be identified by their surnames and, where possible, there will be an avoidance of the use of gendered pronouns.
These proceedings involve a parenting dispute invoking Part VII of the Family Law Act 1975 (Cth). Unless otherwise specified, any reference to ‘the Act’ or a legislative provision shall be a reference to the Family Law Act 1975 (Cth).
The proceedings were commenced by the Applicant, MS RAMSDEN, (‘the mother’) with the Respondent being MR DARNELL (‘the father’).
The only subject child is X, born in 2017 (‘X’).
X was independently represented by Todd Street (‘the ICL’).
PRECIS
The genesis for the commencement of the substantive proceedings by the mother was the father’s decision to unilaterally withhold X from the mother after there had been an informal agreement for X to spend time with the father on a weekend.
By the end of the trial, the father and the ICL were almost ad idem in pressing for X to live with the father, the allocation of equal shared parental responsibility, X spending time with the mother on alternate weekends and during school holidays, and for various injunctions to be put in place. The mother pressed for X to live in an equal time arrangement.
For the reasons that follow, I have largely adopted the joint position of the father and the ICL (with some changes to reflect what I heard during closing submissions) which will mean in summary that –
(a)X will live with the father;
(b)The parents will have equal shared parental responsibility;
(c)X will spend less than substantial and significant time with the mother each alternate Friday to Sunday and during school holidays;
(d)The mother and the father will be the subject of various injunctive restraints;
(e)The mother will be restrained from allowing X to come into contact with her partner; and
(f)the father will pay the ICL’s costs of about $4,700 by way of fortnightly instalments of $100.
In order to determine these issues, it is important that I traverse the applicable law.
THE APPLICABLE LAW – PARENTING PROCEEDINGS
In these proceedings, the parties invite me to make a parenting order – section 64B – which I can, provided I think it is proper to do so in light of the objects of the Act and the underpinning principles of those objects – ss 65D and 60B.
Any orders I make about a child must be orders determined by treating their best interests as the paramount consideration, and in doing so, ss 60CC(2) and (3) set out the matters to which I must have regard to. This consideration of the child’s best interests is also mandated within s 65DAA to which I shall return.
The legislation makes clear that s 60CC(2)(a) is not intended to alleviate the paramount consideration as to the benefit of a meaningful relationship for the benefit of the parent, but rather, it is for the benefit of the child. For example, see the preamble within s 60B which specifies that the objects of Part VII are to ensure that the best interests of children are met.
In Godfrey & Sanders [2007] FamCA 102, Kay J, sitting as the Full Court, at [36], observed that what the Act aspires to is the promotion of a meaningful relationship, not an optimal one.
In Mazorski & Albright [2007] FamCA 520 (‘Mazorski & Albright’), Brown J at [26] said this about the concept of meaningful relationship:
26.A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
The other paramount consideration which takes precedence over the benefit to the child arising from a meaningful relationship with parents is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence: s 60CC(2)(b).
The two primary considerations require a consideration about whether the child will benefit from a meaningful relationship with their parents and the need to protect the child from physical or psychological harm.
The need to protect takes precedence over the benefit to the child arising from a meaningful relationship.
In reflecting on the Court’s role when matters of risk are raised, Judge Morley in Berys & Berys [2022] FedCFamC2F 1162 (‘Berys’) said this at [177]:
177.Rather, the task of the Court is to assess whether the evidence establishes that there is a risk to the best interests of the child. If the evidence establishes that there is such a risk, briefly expressed, the Court must:
(1) assess whether that risk is an acceptable risk or an unacceptable risk;
(2)if it is assessed that it is an unacceptable risk, assess whether or not the risk can be mitigated by appropriate orders; and
(3)decide what orders are proper in all the circumstances in the best interests of the child.
In the decision of McClelland DCJ in Sweet & Sweet [2022] FedCFamC2F 676 (‘Sweet’) his Honour neatly summarised the issues in unacceptable risk. In summary at [55], what he indicated was that -
(a)unacceptable risk does not necessarily just arise solely in respect of allegations of physical and sexual abuse;
(b)the test of unacceptable risk also requires assessments of risk of future physical and emotional harm – see A v A [1998] FLC 92-800 at 84,996 and M & M [1988] 166 CLR 69 at 77;
(c)an unacceptable risk can include any or all matters that compromise the safety, welfare and wellbeing of a child and examined in light of an accumulation of factors proved – see Director-General, Department of Family and Community Services (New South Wales) v The Colt Children [2013] NSWChC 5 at 146 to 148.
A finding of unacceptable risk need not be demonstrated according to the civil standard of proof – see Isles & Nelissen [2022] FedCFamC1A 97 (‘Isles & Nelissen’) at [6], [7], [46] to [51] and [81]. Isles & Nelissen was followed in the decision of Eastley & Eastley [2022] FedCFamC1A 212 (‘Eastley’) at [45] where the Full Court observed that a finding of unacceptable risk was open on the available evidence because the evidence demonstrated a material possibility of risk which need not have been demonstrated according to the civil standard of proof.
If the Court identifies the existence of an unacceptable risk, it is then necessary for the Court to assess whether that risk is able to be sufficiently managed or ameliorated – see Blinko & Blinko [2015] FamCAFC 146 at 83, referring to Russell & Close [1993] FamCA 62 (‘Russell & Close’).
In Napier & Hepburn [2006] FamCA 1316, the Full Court emphasised that it is not for the Court to find a solution which eradicates the chance of serious harm. Rather, the Court must balance the harm that will follow if the risk is not minimised or removed as against a normal, healthy parent child relationship not being permitted to flourish.
Relevantly to these proceedings, family violence is defined at s 4AB as meaning:
… violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful.
For children, exposure to family violence means that they have seen or heard family violence or otherwise experienced the effects of family violence: see s 4AB(3).
There is no formal definition of neglect, although, the term has been considered by the Full Court in Slater & Light [2011] FamCAFC 1, where it was observed at [37] that:
37.The term “neglect” will have a similar meaning to its use in state and territory child protection legislation. It is intended to be limited to situations where a lack of reasonable care is likely to cause unnecessary suffering or injury to the health of a child.
Whenever the Court is asked to make a parenting order, the Court is required to apply a rebuttable presumption that it is in a child’s best interests for their parents to have equal shared parental responsibility: s 61DA. Section 61B defines parental responsibility as encompassing all duties, powers, responsibilities and authority conferred by law upon parents.
Despite their past history of family violence and poor communication, all parties agreed to the allocation of equal shared parental responsibility. As such, the mandatory considerations within s 65DAA are triggered, albeit the allocation of any time, (including substantial and significant time, as defined within s 65DAA(3)), must still satisfy the “best interests” test.
Where an order allocates equal shared parental responsibility to a child’s parents, then the Court is obliged to consider both -
(a)whether it is advisable and reasonably practicable for a child to live equally with each of their parents or, alternatively,
(b)to live with one parent and spend “substantial and significant time” with the other.
“Substantial and significant time” is defined to mean time spent between the child and the parent that includes days falling on weekends and holidays and days that fall outside these periods.
When making determinations as to whether a child should spend equal time with their parents or substantial and significant time with a parent, s 65DAA(5) informs me about reasonable practicality.
“Reasonable practicality” is an important consideration in parenting disputes where the Court has to consider a child spending equal or substantial and significant time with each of their parents. As identified by the High Court in MRR v GR [2010] HCA 4 at [13] and [14], and also within s 65DAA, the Court must consider both questions; namely,
(a)is it in the best interests of a child to spend equal or substantial and significant time with each parent pursuant to s 60CC and, secondly,
(b)whether it is reasonably practicable for the child to spend equal (or substantial and significant) time with each parent pursuant to s 65DAA(5).
When considering s 65DAA(1), MRR v GR, at 15, said that the focus was on:
…… the reality of the situation of parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in section 61DA(1) is not determinative of the questions arising under section 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
If, after considering and rejecting, firstly, equal time and, secondly, ‘substantial and significant’ time, then the allocation of less than ‘substantial and significant’ time to one parent is ‘at large’.
Mandatory and prohibitory injunctions can made by me for the welfare of a child that affect the parties: s 68B.
THE EVIDENCE
Where required and with the consent of parties, leave was granted by the Court for the late filing of trial material as forming part of the party’s evidence.
At the outset, I raised the absence of an affidavit in the mother’s case from her partner, MR F and this was because of the implications for the mother pursuant to possible findings available to the Court pursuant to Jones v Dunkel [1959] 101 CLR 298. On day 2, the ICL sought and I ordered that MR F give evidence. As part of the order and noting the lack of notice to MR F, I directed that MR F be given the opportunity to receive duty solicitor legal advice and the right to be heard objecting to his giving evidence. MR F presented before the Court and refused to give evidence. None of the parties sought to press MR F to give evidence. MR F then remained in the gallery of the Courtroom for the rest of days 2 and 3 of the trial. When the topic arose in submissions, I specifically asked the ICL to specify the findings he would be inviting me to make so that the mother, in particular, could address me about whether those findings were open for me to do so. The mother’s counsel did not make submissions on that aspect.
Statements of facts, as set out below, should constitute findings of fact unless otherwise expressed.
On day 2, a s 128 certificate was granted to the mother in order that we could hear evidence from her about alleged breaches of two existing ADVOs issued for the protection of her and MR F. Overall, the mother presented her evidence as either – well, both, really –
(a)seeking to attribute blame to the father for her inability to get X to school or medical appointments and,
(b)seeking to minimise her relationship with MR F and/or the family violence risk that MR F posed.
In exercising my discretion as to the weight I should otherwise give to the family report and/or the oral evidence of the Court child expert who produced a report dated 6 September 2022, I was satisfied that the Court child expert was open to persuasion about different scenarios that were put to them in cross-examination. The Court child expert gave thoughtful and consistent evidence. In giving opinions, the Court child expert’s analysis was clear from the identified facts and propositions put to them. There was a clear and logical pathway to the conclusions formed and/or expressed.
I have read all of the evidence relied upon in the proceedings but do not propose to repeat it here. As the High Court reminds me in Whisprun Pty Limited v Dixon [2003] 200 ALR 447 at [62]:
62.A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.
Before setting out a chronology of the party’s circumstances, I will canvass their proposals.
THE PARTIES’ PROPOSALS
As can sometimes happen in matters involving complex issues, the positions of the parties change over the course of the trial.
In this case, the change was stark because by the start of day 2, it seemed that the parents were aligned in their view about equal shared parental responsibility and equal time, with the one difference being that the father wanted the mother to be restrained from bringing X into contact with the mother’s partner, MR F, until 31 December 2024.
By the end of the trial, this consensus had fallen apart so that the father and the ICL were now agreed that X should live with the father and spend time with the mother on alternate weekends from after school Friday – so when I say after school, I think it was about 5 or 6 o’clock on Friday to Sunday and school holidays, and, importantly, that there be a blanket restraint on X having contact with MR F. The mother doggedly pressed her equal time proposal.
The mother was legally aided so, in reality, the ICL’s application for costs was limited to the father paying. The father opposed the order but conceded that if the Court was against him in that application, then the financial hardship caused to him would be lessened if the order allowed him to pay off the debt by way of fortnightly instalments of $100.
In order to consider the various applications, it is necessary to set out a chronology of the significant events in the party’s circumstances. There may be other significant circumstances that I miss in the chronology which are picked up elsewhere in this decision.
CHRONOLOGY
In 1994 the mother was born and she is currently 28 years of age.
In 1994 the father is born and he is currently 27 years of age. The father also identified as indigenous, although this did not feature as a significant issue in the proceedings.
In evidence, it became clear that from about the age of 14 years of age, the mother had had difficulties with her mental health and, ultimately, at some point, she was then diagnosed with a mental health condition. She also said that she first had a romantic relationship with MR F as a teenager, which lasted for about eight weeks.
In 2014, G, who is the maternal half sibling of X, was born. He is now eight.
In 2015 H, who is also a material half sibling of X, was born and he is now currently seven years of age.
It appeared to be common ground that MR J, (‘MR J) the boys’ father, was an extremely violent man and that is the description, I think, that the mother gave to him in her affidavit. And she also said, I think this is paragraph 4 of her trial affidavit, that MR J had “a mental health disorder and an illicit substance addiction”. It was common ground that there was an ADVO taken out for the protection of the mother in defence of MR J.
Now, in terms of the party’s relationship, the father said the parties commenced their relationship in 2015 and the mother said, “I think 2017.”
Then X was born in 2017.
In 2018, this is when the mother was diagnosed with several mental health conditions.
In October 2019, the mother asserted that she obtained her own rental premises in Suburb K and she tells the father at this stage that the relationship was over. The mother then sought some assistance from Mr L, a clinical psychologist. In, I think, that same year, and certainly there was information to the Court that the mother had not completed all of the appointments that she was supposed to with Mr L.
Then in early 2020 the parties then ceased cohabitation on a final basis, although the father asserted that the relationship remained on foot until April 2020.
At the same time, or thereabouts, the mother commenced a relationship with MR F and then she was referred to – and then, I think, about the time of the parties’ separation, the father began engaging in highly inappropriate communications with her and behaviours. The mother was also referred during this year to City M Mental Health Service, and engaged with Mr N, a clinical psychologist. Again, the evidence from the family report was that the mother’s attendance at these appointments was erratic.
On 2 March 2020, and this is exhibits ‘ICL14’ and ‘ICL15’, it was apparent that MR F had been scheduled under the Mental Health Act after taking an overdose of 10 sleeping tablets and consuming a large amount of alcohol. The mother said in her evidence that she had been told by him that he had had trouble sleeping. This clearly was not the case insofar as what the exhibits identified.
Then in April 2020, the police applied for an ADVO to protect the mother from the father, and also an ADVO protecting MR F from the father, and there was also a conviction of the father (exhibit ‘ILC21’), for stalk, intimidate with the intent to cause fear or physical harm and he was fined $200.
That same month, the mother commenced engagement with O Contact Centre, and that engagement ceased in October 2020 due to the mother not being able to fully remain engaged with the department.
In May 2020, and this is exhibit ‘ICL18’, it was reported that MR F had committed a breach of ADVO. The mother in her cross-examination said that she thought all MR F had in his criminal history was some driving offences, and it seemed to me that this was the second incident where MR F was perhaps not as forthright with the mother as he could have been about his antecedents.
Then in October 2020, the father contravened the ADVO, and he was subject to a fine, and there were two breaches, as I recall, of the ADVO, and they both occurred in the same sort of period.
In November 2020, a final ADVO was made protecting the mother from the father for a period of two years, and then again, the father is charged in December 2020 with a breach ADVO over some phone conversations and text messages that, ultimately, he was charged and convicted of: see exhibits ‘ICL26’ and ‘ICL21’.
In early 2021, the father then retained X for a short period of time before she was returned to the mother, and this happened at the same time as he was arrested for breach ADVO.
Then we have the mother commencing her proceedings in March 2021, and about a month later, exhibit ICL6 tells me that the school was so concerned about the absence of G from his attendance at school, that the police were asked to do a welfare check about him, and the mother agreed that the police had come and left a card, she had rung them, and then there was nothing more to see.
In April 2021, there was a letter from the principal of P School to the mother (exhibit ‘ICL8’), recording G’s attendance at that stage as being 40%. Later that same month, the father filed his responding material, and also orders were made by the Court for X to live with the mother, and the father to spend supervised time and also, amongst other orders, that the parties undergo hair testing. An ICL was also appointed.
In May 2021, the father submitted his hair follicle test which showed negative, although he did concede that he uses cannabis, and he says that this occurred when the child was not in his care.
Then in June 2021, exhibit ‘ICL17’, shows there were two ADVOs naming the father as a person of interest – one for the protection of the mother; one for the protection of MR F – and this is a record from the police, and then there was also, in that same exhibit, mention of MR F being a person of interest in an ADVO, and then the mother was a victim of one, and the other victim had been redacted, although I think it became apparent that that was an ADVO for the protection of a former partner, Ms Q.
In September 2021, there was some engagement with the department again, (see exhibit ‘ICL11’), which was a risk assessment outcome that identified the final risk assessment level as being high, total neglect level high, total abuse level high. It identified the number of reports that had been made in relation to the family. It identified that this included seven reports for neglect, detailing concerns in regards to inadequate supervision, educational neglect, risk of neglect, emotional state of the carer, and the carer’s mental health. Then in this document, back in 2021, the mother identified that she “uses cannabis regularly”, usually about “$20 to $50 per fortnight” which, if nothing else, demonstrated to me, because the mother’s evidence was that she continues to take cannabis, that has been a habit at least for the last 18 months.
In terms of X, it was described, under the heading of Characteristics:
[X] is 4 years old and has no developmental issues apart from concerns in regards to some speech issues. A speech assessment is planned to occur soon for her in order to assess whether she needs extra support…
G was identified as being on the autism spectrum, and he “attends a multi-category class at P School”, and he has the support of an NDIS plan, and H was identified as having “a severe speech delay which requires further assessment and support”.
In relation to family violence, it was recorded that “there are no documented incidents in regards to violence with a family member or relationship for the family in the last 12 months”. The mother “previously stated she was no longer in a relationship with” – then this is redacted – “however during the safety assessment, it was revealed that sometimes” the redacted person “stays overnight”. The mother was recorded as having previously said that this person “was controlling and insecure and he broke her phone on one occasion”. The redacted person “has been known to DCJ and has a history of choosing to use violence with other partners. The reported concerns did not specify anything in regards to the mother’s relationship with this person, only that this person had reportedly excessively disciplined G - and this is where the redaction all, kind of, falls apart - “When case workers met Mr F, he did not appear coercive or otherwise controlling towards Ms Ramsden at the time”.
So that was certainly an indication from the Court’s perspective that the department were aware of some sort of relationship between MR F and the mother, and they had some concerns, although as submitted by counsel for the mother, it did not go anywhere, and the mother had the children continuing to live with her. There were no changes in that space.
So turning back to the chronology, in December 2021, G’s school attendance was recorded as “poor”. There were 79 absences in that school year, and a careful reading of the document can safely say that the majority were unjustified. In the mother’s evidence, she said that G has meltdowns, he has unwillingness to go to school, and that the best place for him when he is in that sort of emotionally heightened state is to stay at home.
That same year, and this is exhibit ‘ICL3’, a summary of that exhibit identifies that X had multiple absences. Sometimes, they were in blocks of three days over weeks at a time, and in that same month, there was an incident of family violence which found expression, (at exhibit ‘ICL13’), between the mother and MR F. In terms of that assault - we only heard about this all last week, so I am not going to go into all the details of it but, essentially - the children were present in a bedroom when the mother, apparently, bit MR F’s leg, and he then slapped her so hard that she was thrown against a wall, at which point, the children woke up and started crying and became very distressed. From the way the mother gave her evidence, I formed the impression that she appeared to be minimising the event. She said at one stage that we needed to show compassion for MR F. At other times, she said that she thought that the father’s engagement with MR F up until that time might have been the cause of some of the reason why he had reacted as he did, and I will come back to that because there were some submissions made by the mother’s counsel about that as well. I will leave that where it is. I should also say that there was mutual ADVOs issued at some point thereafter to protect these two persons against each other.
In April 2022, the ADVOs were made, protecting MR F from the mother and the mother from MR F, and importantly, there were some particular restraints around MR F not coming within 200 metres of the mother’s home and the mother not going within 100 metres of MR F’s home.
On 9 June 2022, P School got involved again with concerns about G. This time it was identified that he had been at school for about 69% of the year, and this was when semester 1 had not even finished.
In terms of the next event in that same semester, X had a school report, which showed 28 whole days of absence, 9 partials. The mother was cross-examined about that and said – there were various reasons she gave - one was that it was difficult to get the two younger children and, relevantly for me, X, to school even though the school was 400 metres walking distance from her home, and that was because of particular features involving G’s personality and his behaviours. She also was suggestive of the fact that she considered that the father should have been – and she used this phrase quite a lot – the father should be “stepping up” more and coming to help her out when she needed assistance in getting X to school because of other situations in her life such as getting G to appointments, getting herself to appointments for her mental health and what have you.
In July 2022 – and this is paragraph 45 of the family report – after having had that incident with MR F, the mother said that she -
…. defended (MR F)’s actions, stating that she caused this in a way as she bit him. The mother described the incident as “a heavy disagreement” (and then explained) that the AVO was applied for by police, which they (the two of them had then) applied to vary in July 2022 to allow contact as they decided to resume their relationship.
This information was quite interesting and of some concern to me because in the mother’s trial affidavit – and this was, I think, January of this year – she described her relationship with MR F as just friends.
Then we had the family report interviews, which I have already talked about. In terms of those, in paragraph 44, the mother is reported as describing herself as “a bit of a pusher” and that she “did physically assault the father on a number of occasions during their relationship”. It seemed to me that the evidence about family violence between the mother and the father was not agitated as harshly as it could have been or as strongly as it could have been. That may well have been informed by the fact that these two parties, despite their tumultuous relationship, certainly, up until some point on day 2 at least, appeared to be in agreement that there should be an equal time arrangement.
So it seemed to me that, although there was family violence between the parties, and certainly, the father was pressed about it in cross-examination by the mother’s counsel, it perhaps was not pursued as heavily as it could have been because there was this conflict between the parties’ history and what both of them, at that stage were seeking and which the mother continued to seek, which was an equal time arrangement.
Then at paragraph 76 of the family report – so this is the mother’s reporting of X, so she has had that assessment back with the risk assessment with DCJ where they have talked about some issues for X. At paragraph 76 of the family report, which is last year –
The mother reported that [X] experiences some speech and language delay, which has been identified by the school. The mother reported that she had sought the father’s assistance with engaging [X] in speech and language therapy, due to her limited capacity in meeting the daily needs for all three children. ….
Further along in that paragraph -
… The father denied having made any attempts to ensure this need was met, explaining that he did not realise he could make appointments for [X] as she is not in his primary care.
That evidence was somewhat inconsistent with how the parties gave their evidence in court. The mother said that she had been trying to get the father involved but, again, used the phraseology “he wasn’t stepping up”, whether that was for work commitments or what have you. The father said that he thought, well, the child X lives with the mother, so that was really her responsibility.
In submissions, the ICL identified that another reason for the father’s reluctance to get involved was because of a history of where there had been attempts at communication between these parties, it had ultimately either ended up in convictions for breach ADVO or at least enquiries being made via the police.
So then we have the paragraph 97 and 99 so just going back to this family report. So this is the evaluation by the family report writer, the court child expert. Paragraph 97:
It appears that the mother struggles to meet the competing demands of caring for three children, two of which have been diagnosed with developmental disorders. The mother reported to disconnect and “neglect” the children’s basic emotional and physical needs during times of mental health crisis, which was apparent in the subpoena records of [O Contact Centre].
So there was a concern raised by the family report writer about the mother’s capacity in terms of meeting the needs of the children.
And then at paragraph 99 – and this was consistent with how the parties gave their evidence at trial:
The parents’ co-parenting relationship (has) improved in recent times, however there is concern that the father may continue to attempt to communicate with the mother…... (attempts to communicate with the mother will be constrained by the ADVO).
(para-phrasing)
Although at that point the report writer was recommending that an equal time arrangement might be suitable, she then qualified that to say this:
In the event that this information indicates –
and “information” I mean educational information:
In the event that this information indicates considerable absenteeism and any other concerns related to the mother’s parenting capacity, it is recommended that [X] spend more time in the care of the father to improve her educational outcomes. Maintenance of the siblings’ relationships in the care of the mother is an important factor to be considered, and weight should be placed upon this in consideration of the time spent in the care of the mother.
Counsel for the mother pressed the family report writer about weighing up those two issues:
(1)the mother’s capacity to parent X appropriately and meet all of her needs and/or the risk posed in her household to family violence – and I think there was probably more weight on the family violence side of it – versus
(2)the maintenance of the relationship between X and her brothers,
and the court child expert said that priority had to be given to safety for X. So, yes, my memory is now that it was all about the family violence more than anything else.
We then had the report for X for semester 2. In that report, it identified that there were 34 whole day absences, 15 partial absences with 21 being unjustified.
The current ADVO protecting the mother from the father expired in November 2022.
X was – in December of last year, X was referred for, I think, speech pathologist appointment and an audiologist. The mother, in her evidence, was quite candid in saying that she has not been able to organise those referrals and said that she was concerned that X was “falling through the cracks”, but then put, essentially, all of it on the father because the father has not stepped up.
In terms of the next event, the matter was listed for hearing. Unfortunately, I could not reach it, and so the matter got postponed over until the trial, which started on 6 March 2023.
So in relation to that evidence – I have already reported on this, but it was a real concern to me. Paragraph 30 of the mother’s affidavit is where she describes the relationship she has with MR F. So she says this:
In 2020, I started (to) become closer with a good friend of mine named [Mr F]. And just for the record, this was, I think, the third time that the mother had been in some sort of romantic relationship with [MR F] over the duration of her life:
In 2020, we started unofficially dating and by [mid 2020] we had realised that due to (the father’s) reactions, we were not going to remain in a relationship. We are currently friends only.
So that is the evidence that she gave to this Court on 16 January, when she signed that affidavit. She said, in the witness box, that she was in a committed relationship, albeit they were living in separate homes. She said that all five children – so MR F has some children of his own – all five children get along well together and she conceded, subject to the s 128 protections, that MR F visits her home and she visits him in breach of the existing ADVOs.
The concern that I have with that evidence is that, despite the protection offered by ADVOs, which are clearly aimed at keeping the two parties, the two protagonists, in a public space together, not within the privacy and confines of their home where, in the past, there has been a terrible act of family violence perpetrated. The mother cannot seem to extricate herself and say no, and neither can MR F. And in the middle of it are these children who are being put at risk because these two adults do not seem to understand the protection that is being offered to them by the State in having these restraints about going into each other’s home.
And from my perspective, having heard the matter, I have little faith in the mother’s capacity to actually do something about it if it happens again, because she has been unwilling to be honest with this Court about the state of the relationship she has with MR F and she has not been able to stop the breaches.
For X, she is now in year 1 at P School and, if she was to live with the father, she – it was an agreed – well, it – sorry, it was not agreed - it was acknowledged that she would have to change schools and the father said that she would likely go to B School. From the father’s perspective, there is no doubts that he has contravened ADVOs and that he has been a perpetrator of family violence himself, but it seems to me that the incidents of violence and/or the breaches have been in a very confined space of time which, as the counsel for the ICL described, is situational violence. It is family violence, nonetheless. But in terms of risk, he is in a different situation to the mother.
Just like the mother, the father also smokes marijuana. He says he does it for sleep and anxiety, and this was explored to a degree by counsel for the mother. His evidence was, and I accept, that he is working very hard to reduce his reliance on marijuana for those purposes and, as I recall it, he said that he hoped to have stopped smoking within the next four weeks or so.
In terms of the mother, it was also common ground that she does not have a driver’s licence and that, at times, she would either rely on the father to come and help her with the children, particularly – or relevantly for me, X, in getting her to school and/or, at times, as I understood her evidence, she has also reached out to MR F.
What was clear is that, because the mother kept supporting an equal time regime, any risk that the mother might have submitted as being posed by the father has to be seen through that prism, that even though there is all these risk issues in his care of X, she was still saying that week about was going to work and in the best interests of X.
So in summary, the mother’s oral evidence and submissions included the following comments or a summary of the effect of same.
(a)Firstly, she is doing her best, but needs the father to “step up” and help her ensure X gets to school and attends appointments with medical and allied health treators, because she, as in the mother, cannot drive and, right now, she is struggling to manage her own appointments, G’s appointments and then, on top of that, the appointments – I heard that the appointments required for the other younger children plus getting X to school - even walking to school for G was unsafe for all three children because of his flighty nature and the busy arterial road that they have to walk along.
(b)Secondly, X’s poor attendance at school in semester 1, 2022, had not been replicated in semester 2, 2022, nor in semester 1, 2023 to date, which was recorded as three whole days’ absence and one partial. I cannot accept that this “improvement” demonstrates a renewed capacity for the mother to ensure X goes to school, because I think we are probably half way through the semester and X has already missed three days. In addition, although X’s report cards do not on their face demonstrate an adverse effect from her absences, I have had serious regard to the other consequences of irregular or inconsistent attendances, as opined by the court child expert, such as poor outcomes for her social development.
(c)Thirdly, the reason why there was a blow-up between the mother and MR F in December 2021 was generated, at least in part, by what the mother said was the father “putting something into Mr F’s head” and in submissions, I heard from her counsel that “binge drinking” was involved in what was described a “mutual incident” between the mother and MR F.
(d)Fourthly, the mother smokes marijuana at night, after the children are in bed and in a separate area to the house, about four or five times a fortnight to manage symptoms of anxiety and her mental health diagnosis.
(e)Fifthly, almost invariably, the mother sought to attribute blame on the father for her inability to have X’s needs met, saying things like, “I am the overloaded parent,” or, “The father is not able to step up.”
(f)Finally, other than the father stepping up, the mother had no plan about how she would ensure X attended the audiologist and speech pathology appointments that she had received a referral for over two months earlier.
I heard that X spent about two weeks with the father in the 2022 summer school holidays and the parents had been able to negotiate additional time for X, and at times H, to spend time with the father.
Returning to MR F, for the reasons alluded to earlier and relying on Jones v Dunkel I find that:
(a)MR F perpetrated family violence upon the mother (and exposed the children to such violence) in December 2021;
(b)MR F is or was a listed person of interest in two ADVOs, one protecting the mother and one protecting his former partner, Ms R, and he is also the victim on a third ADVO;
(c)MR F has breached the ADVO protecting him and the mother by either allowing the mother to come within 100 metres of his house and/or him coming within 200 metres of the mother’s house, (where X and her half-brothers live);
(d)MR F did attempt self-harm through overdosing on sleeping pills in 2020;
(e)MR F has been less than frank with the mother about his antecedents.
ANALYSIS – PARENTING PROCEEDINGS
The primary considerations
It was uncontroversial that X has a meaningful relationship with her parents. All parties agree that X would benefit from a continuation of these meaningful relationships.
Although the mother cross-examined the father on issues around risk, such as his propensity for family violence, poor mental health, poor parental capacity and marijuana use, she nonetheless asked me to find that it would be in X’s best interests for X to live week‑about with him. The relief sought versus the submissions were inconsistent and, what is more, when I assess the evidence, I am able to comfortably find that:
(a)there was no evidence that the father’s drug use impairs his capacity, but certainly, it is very poor role modelling and should be stopped as soon as possible;
(b)the family violence perpetrated by the father was confined to a limited period of time in the same year as the parents separated or thereabouts;
(c)the father is managing his mental health in line with the advice of his doctor, except for his consumption of marijuana. With that said, there is no evidence that his parenting capacity has been impaired;
(d)the father has felt constrained in liaising with the mother about issues to do with X because he naively thought that he had no say, given X lived with the mother and/or he was acting cautiously given the mother’s previous reporting to police about his communication with her breaching the ADVO which has since expired.
I do not assess that the father poses a risk of harm to X from family violence. Yes, he was inappropriate in 2020 and thereabouts, but there was no evidence upon which I could safely find that the father afterwards has perpetrated family violence or at risk of doing so. For starters, he lives alone with his mother, he has no partner and there have been no more breaches of ADVOs. And, of course, when I reflect on his demeanour as a witness, he did not present to me as anything but now being quite respectful of the mother, which seemed to suggest that the evidence about the two of them getting on in more recent times was supported.
The father and the ICL were ad idem about the many and varied risks posed by the mother, including:
(a)The mother’s parental capacity being impaired because she has no driver’s licence, and cannot consistently rely on others to drive her to medical and other appointments, for the management of her diagnoses, but also for G, and now for X.
(b)The mother’s capacity to provide for the basic needs of X being so impaired that it is open for a finding of neglect to be made, given X’s poor attendance record at school which, in part, appears to arise from failure in her own insight about how her own poor history of school attendance has impacted her outcomes.
(c)Next, the mother’s capacity to provide for X’s developmental needs being impaired to the extent that, at the very least, X has not had the benefit of two referrals made in December 2022, which were aimed at assisting in managing X’s long-standing speech impairment.
(d)The mother’s parenting capacity being impaired because of a lack of supports to assist manage the difficult behaviours displayed by G, which has led to X “falling through the cracks”, and the mother feeling “overwhelmed” or “overburdened”.
(e)The mother’s capacity to act protectively to ensure that X is, at the very least, not exposed to family violence in circumstances where:
(i)every intimate relationship the mother has had has involved an ADVO being made for her protection and yet, despite that protection, the mother has continued to engage in communication, which has either led to or raised the risk of the children being exposed to family violence, with the latest example being that despite the protection of an ADVO, the mother is currently breaching the ADVO against MR F, by allowing him into her home where the children live, and vice versa;
(ii)the mother appears to me to be minimising MR F’s behaviours, and seemingly wanting to cast blame on either the father or herself, for MR F’s acts of violence against her in December 2021.
And, in that regard, in my view – it was open for the Court to find that the mother is likely to hide any family violence that occurs again, given that she has been unwilling to prosecute or stop behaviour which was a breach of an ADVO, and sought to, in my view, minimise the seriousness of the relationship she had with MR F, as set out in her trial affidavit.
The additional considerations
X is almost six years of age, and is now in grade 1 at P School. She has no formal diagnosis, but shows symptoms of a speech impairment, the origin of which is yet to be formally diagnosed, because the mother has failed to have her attend upon an audiologist and speech pathologist.
X’s views were not know and, frankly, given her developmental stage, any views she did express would be impaired by her poor cognitive capacity to understand and reflect on the consequences of any views she may have expressed about such things as where she might want to live.
There is no doubt that X loves her parents, and her half-brothers. I heard that X also has a strong relationship with MR F’s children, and no issues of concern were observed by the Court child expert, when she saw MR F with X.
Although I accept, to a certain degree, the submission of the ICL in defence of the father’s unwillingness to be proactive about X, in my view, there was no reasonable excuse as to why, for example, the father could not even attend a parent teacher interview for X when she started kindergarten last year.
On many levels, the mother has failed X. Something which she accepted, albeit she then minimised her role by blaming others, such as the father, for not being available to pick her and/or X up to take X to school, and/or potentially other appointments.
I am unwilling to find – having said that, I am unwilling to find – make a finding of neglect in line with the primary considerations. But there is no doubt in my mind that the mother’s parental capacity to meet the needs of X, other than the provision of shelter, food and love, is seriously impaired by her difficulties in managing the competing needs of herself, her two boys, and the practical difficulties around transportation.
Although the father is untested, given the mother considers him a candidate for week-about time, and having listened carefully about his plans to change his work regime, should X live with him, I assess that he has the parental capacity and insight to meet X’s future needs in all regards.
The Court child expert was clear to say that X has the capacity to adjust to a change, but that it will be difficult to leave the home where she lives with her half-brothers. Having said that, when directly asked to weigh up the risk posed to X from the mother versus the separation from her siblings, the Court child expert was very clear to say that X’s safety and ability to thrive came ahead of her sibling relationships. I accept that opinion.
The father is untested, but his evidence persuaded me that he has the ability to manage the changes in X’s life, including a new school, and most likely new medical treators and an engagement with the specialist she has been assessed as being needed in her life.
Keeping X with the mother on a “week-about” regime is impractical, given the mother’s evidence about not having a car, feeling overwhelmed in the care of the children as a whole, and needing the father to step up. She has no licence, so is unable to travel distance easily.
The father works and lives about 40 or 50 minutes away from the mother’s home. If X lives with him, mid-week time is impractical, given the travel time, and the mother has no way of collecting and getting X back to school, in any event.
Both parties support the other’s role in X’s life. I have already made observations about each party’s capacity to parent and am satisfied that the father has the greater capacity.
Both demonstrate poor attitudes to the responsibilities of parenthood. Engaging in illegal activities such as marijuana smoking, irrespective of whether the children see or smell it, is not condoned by me. If nothing else, it leaves the parents open to being called hypocritical should in the future, X, like most teenagers, decides to push the boundaries of what is legal and what is not.
I have already spoken about the family violence between the parties.
MR F is a serious concern to me. He had the chance to give evidence and did not. The mother did not call him either. Based on the findings already made about MR F, he poses a serious risk of harm to the mother and, as a consequence, X. She should immediately stop breaching the ADVO and contact the police if MR F does. Sadly, nothing in the mother’s evidence nor her submissions convinces me that the mother has the strength, capacity or insight to do this.
To a certain degree, there are restraints that could go some way to ameliorate the risks, but only if X is primarily with the father so that X’s risk of exposure to MR F and any future violent partners the mother may have is lessened by sheer dint of a reduction in face-to-face time in the mother’s care.
CONCLUSION - EQUAL TIME OR SUBSTANTIAL & SIGNIFICANT TIME?
Equal time
So, in conclusion, the Court child expert’s recommendations in the family report were qualified by not knowing about X’s educational circumstances. Having been appraised, the Court child expert did not support equal time. Neither did the father nor the ICL.
The mother submitted that the equal-time regime manages the risks in both households and reflects the improved communication experienced by the parties in more recent times. I disagree.
Whilst the mother has historically been X’s primary attachment figure, she has failed to meet some of the most basic needs of X or for X, such as keeping X safe from family violence, getting X to school on time consistently and ensuring that X gets the benefits of seeing health professionals that she has been referred to for months.
For the reasons above, I am satisfied that an equal-time arrangement is not in X’s best interests, because the mother poses an unacceptable risk of harm to X from her inability to act protectively against X being exposed to family violence and her limited parental capacity. The evidence quite easily enables me to find that there is a material possibility of risk based on the breaching by the mother and MR F of the existing family violence orders meant to protect her and MR F from each other (by restraining them from being together close to or in each other’s households) as well as the overall poor attendance by X at school and a complete failure to have X assessed in accordance with the referrals issued in December 2022, following on from 2021 observations made by the Department of Communities and Justice about X’s needs.
I am also concerned that the mother has attempted to minimise the significance of a relationship with MR F so as to try and reduce any adverse findings against her insofar as a risk posed from family violence. For example, in her trial affidavit from January, the mother described the nature of a relationship with MR F as friends, whereas, from her oral evidence it was clear they are in a committed relationship, albeit living separately, in which their children spend time together and enjoy a close relationship with each other and the mother to a certain degree relies on MR F to transport her or her child or children to appointments when he is not working. This, in circumstances where the mother told the Court that “compassion” should be shown (for reasons including because of his upbringing and/or MR F had at that time believed some of the things being told to him by the father and/or the mother at that time had been binge-drinking alcohol). So the compassion should be shown for his past behaviours in hitting her so hard that she was flung across the bedroom in which X and her half-brothers were sleeping.
The mother could not offer any reasonably practical way to address these risks, because on the week that the mother had X:
(a)she continued to say that getting X to school either on time or at all would be subject to G not having a bad day;
(b)she would have to rely on others to drive her to appointments for X, such as the father and/or MR F.
(c)she appeared incapable of complying with an existing family violence order aimed at ensuring that she not be near or inside a home where MR F was also present and the prying eyes of the community were shuttered.
Substantial and significant time
No one formally proposed substantial and significant time, but in considering the agreed position of equal shared parental responsibility, I am mandated to do so.
I have already discussed the definition of ‘substantial and significant time’.
None of the unacceptable risks posed by the mother and identified above can be ameliorated by a reduction in time which still involves school days.
The mother was clear to say that any of X’s health appointments would fall during Monday to Friday and that she expected the father to “step up” and help her ensure that X attended. The same can be said for school attendance in circumstances where, no matter which school X attended, the father would be expected to drive to the mother’s home some 40 or 50 minutes away to pick up X and take her to school and then drop her back to the mother’s at the end of the day.
The reduced time does lessen the risk of MR F coming into contact with X, but, again, if a medical appointment falls through in the mother’s time, then there is a real risk that she will call on MR F to get X to and from the appointment because the mother cannot drive and/or has competing caring duties related to her sons.
The issue for me to determine is how to maintain the important significant and valuable relationship between the mother and X, noting that the definition of a meaningful relationship is not strictly quantitative but qualitative. (See Mazorski & Albright)
For the reasons above, I am satisfied that the unacceptable risks posed by the mother are not sufficiently ameliorated to support a finding that substantial and significant time meets X’s best interests.
In this case, for the reasons set out above and having regard to X, on balance, I find that the only way to address the risks posed by the mother is for X to move and live with the father.
Based on the evidence, the father has satisfied me on the balance of probabilities that he can support the quality of X’s relationship with the mother despite this change in X’s primary care. Despite all the difficulties that the parties have endured, the relationships between both of them have improved and, even in his oral testimony, the father contemplated that, in time, not only X but at least H would be able to come and spend time with him too.
I turn now to a consideration of whether X having substantial and significant time with the mother and, otherwise, living with the father is reasonably practicable by reference to s 65DAA(5) and where appropriate my earlier ‘best interests’ findings.
CONCLUSION – IS IT REASONABLY PRACTICABLE?
The mother proposed equal time and no one proposed substantial and significant time. In circumstances where, nonetheless, they seek equal shared parental responsibility, and in addition to s 60CC I need to consider the reasonable practicability of the mother’s proposal for equal time.
As I said earlier, there is a 40 to 50 minute drive between the mother and the father. The mother has no driver’s licence and even being 400 metres walking distance to X’s school has not guaranteed X’s consistent attendance.
I am satisfied that equal time is simply not reasonably practicable, given the significant distances between the parties’ two households and X’s school, as well as the mother’s reliance on others for transportation. Although no one sought it, substantial and significant time in the mother’s household faces the same practical dilemma.
CONCLUSION – LESS THAN SUBSTANTIAL AND SIGNIFICANT TIME
I have no doubt that initially X will struggle with the change in her circumstances, but if a reading of a school reports is anything to go by, she appears to be capable of managing herself, at least scholastically, despite her poor history of attendance suggesting otherwise.
Regularised consistent time between X and her mother as well as her half-brothers is, therefore, imperative. The mother cannot drive to where the father lives. The parties agree that the father will do all the travelling to and from an agreed changeover point.
Time from after school Friday to Sunday afternoon, therefore, makes a world of sense as it ensure X attends school and her medical appointments, spends uninterrupted time with the mother and her sons and significantly reduces the risk of the mother breaching any orders I may make restraining her from engaging in certain activities, including a no-contact injunction against MR F.
School holidays pose more risk insofar as X’s exposure or possible exposure to family violence and MR F, but the risk of non-compliance is acceptable when considering the spread of this time over the whole year. My view is also informed by my finding that the mother now fully understands the risk posed by non-compliance, indeed, I heard that she would “give up” her rights for X to live with her week-about if MR F came into contact with her daughter. Sadly, on a background of non-compliance and minimisation, I cannot take her at her word.
I am also satisfied that the father has the capacity to promote the meaningful relationship between mother and daughter, despite the reduction in time that X will spend with her mother. Indeed, the only reason he turned away from what was a week-about regime was because of the evidence about the risk posed to X as a result of what he heard at the trial.
Whilst this new regime may not ensure an “optimal” relationship between X and her mother, I am satisfied that a meaningful relationship will endure even it is not as “strong and reliable” as quoted by the mother’s counsel.
CONCLUSION
Pursuant to s 61DA, when asked to make a parenting order, I am required to apply a presumption that it is in a child’s best interests that the parents have equal shared parental responsibility, absent a finding that one of the parents has engaged in abuse of the child, family violence or it is not otherwise in a child’s best interests.
All parties sought the allocation of equal shared parental responsibility, irrespective of whether X live with the father or on an equal time basis.
The court child expert supported the allocation of equal shared parental responsibility for the reasons addressed previously. I accept the court child expert’s view because the evidence demonstrated a real desire by the parents to work together to make decisions about X’s welfare and their communication has improved dramatically in recent times to the point where they informally agreed to X spending two weeks of the summer 2022 school holidays with the father.
So to be clear and despite the past history of family violence between them, I am satisfied that it is in X’s best interests for the parties to be allocated equal shared parental responsibility because they have demonstrated in much more recent times that they are able to effectively and respectfully communicate and/or co-parent with each other.
I have already explored why X should live with the father and I will so order.
I have already explored why X should spend less than substantial and significant time with the mother. In summary, an order for substantial and significant time would not sufficiently ameliorate the unacceptable risks posed by the mother, nor would it be reasonably practical, given the mother’s lack of transportation and the distance between the two households and the mother’s competing priorities relating to G and herself.
In recognition of the strong relationships that X has with each of her parents, holiday time is included with the regime to vary depending on X’s changing developmental needs as she gets older.
I am mindful that big changes will occur for X and so I agree with the ICL and the father, that in the immediate to medium term, one way to support X’s emotional needs is for her to initially spend more than half of some school holidays with the mother.
Orders are made to give structure to the manner in which the mother and the father are to communicate with each other.
Various injunctions will be made in light of the parties’ cross allegations. It serves no purpose to order that the parties not engage in an illegal activity. They know now about the dim view the Court takes to them as parental role models when they engage in illegal activities like smoking marijuana. To use the mother’s oft stated phrase, both of them need to “step up” and stop smoking pot. I cannot do any more.
The mother is a good mother who loves X, but her circumstances have meant that she has failed her daughter. The Court recognises the role that the mother has played so far in X’s life. It has been important.
The father has stood back and watched, but now he wants to be proactive in ensuring that X’s needs are fully met, and I support him in that endeavour. His role is important, too.
For the reasons above, I am satisfied that the orders I will make are in the best interests of X.
THE APPLICABLE LAW, ANALYSIS & CONCLUSION – COSTS
The ICL brings an application for each party to pay one half of the ICLs costs quantified at $12,812.37 – see exhibit ‘ICL2’. That means each of them has to pay $6406.19. If a party has paid the initial contribution of 1650, the quantum sought is then reduced to $4756.19.
Such an application invokes s 117.
Both parties oppose the making of a costs order with the mother asserting she was legally aided (s 117(4)(a)) – and the father asserting he will suffer financial hardship (s 117(4)(b)).
In exercising my discretion, I must have regard to s 117, which sets out the Court’s jurisdiction insofar as costs are concerned, including a rebuttable principle that each party should bear their own costs.
There was no contest about the ineligibility of the mother to suffer a costs order as sought and that application will be formally dismissed.
The ICL sought to rebut the presumption that the ICL (or, in other words, Legal Aid New South Wales) should bear those costs on the basis that I should satisfied that the circumstances of the case make it just for the father to pay one half of the ICL’s costs.
In the exercise of this broad discretion, the Court must take into account various considerations as set out in s 117(2A).
The discretion I exercise in the making of an order, if any, in relation to the ICL’s costs, including what proportion each party must be responsible for, must be just – see s 117(3).
Turning to the considerations set out within s 117(2A):
(a)The father takes home $800 per week and has funded his legal representation. The father says that, if the Court were minded to make a costs order, he could afford to pay $100 per fortnight.
(b)The father initially did not support the orders ultimately made by the Court, but by the last day of the trial, he had changed his position.
No one consideration under section 117(2A) prevails over any other and the weight to be accorded to each of the relevant factors is at my discretion – see Medlon & Medlon (No 6) (Indemnity Costs) [2015] FamCAFC 157 at [24].
In the circumstances of this case, I am satisfied that there are justified circumstances to rebut the presumption that each party bear their own costs – see Penfold & Penfold (1980) 144 CLR 311.
This is because, taking into account all the circumstances of this case, I am satisfied that it is just for me to make a costs order against the father because he will not suffer financial hardship if I adopt his repayment proposal of $100 per fortnight.
For all of the reasons explained above, orders as set out by me now will be made.
I certify that the preceding one hundred and eighty-one (181) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kearney delivered orally on 13 March 2023. Associate:
Dated: 20 April 2023
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