Rickard and Issa
[2018] FCCA 411
•16 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RICKARD & ISSA | [2018] FCCA 411 |
| Catchwords: FAMILY LAW – Parenting – best interests of child – orders made. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Applicant: | MS RICKARD |
| Respondent: | MR ISSA |
| File Number: | PAC 5718 of 2009 |
| Judgment of: | Judge Newbrun |
| Hearing dates: | 15, 16, 17 May and 9, 10 August 2017 |
| Date of Last Submission: | 11 August 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 16 April 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Tran |
| Solicitors for the Applicant: | Legal Aid NSW Wollongong Family Law |
| The Respondent appeared in person |
| Counsel for the Independent Children’s Lawyer: | Mr Ladopoulos |
| Solicitors for the Independent Children’s Lawyer: | Dignan & Hanrahan Solicitors and Attorneys |
ORDERS
That the Orders made by the Parramatta Federal Magistrates Court on 24 September 2010 be discharged.
That the mother shall have sole parental responsibility for the child [X] born (omitted) 2005 (hereinafter “the child”) provided that the mother:
(a)Notifies the father in writing of any proposed decision (and the reasons for such proposed decision) relating to the long term care and welfare of the child, including but not limited to:
(i)Proposed decisions about which school the child shall attend; and
(ii)Proposed decisions about elective surgery, treatment of chronic conditions, orthodontic treatment and other long term medical issues affecting the child;
(b)Ensure that such notification is given to the father not less than six (6) weeks before a final decision is made, except in the case of an emergency;
(c)Take into consideration any views expressed by the father in respect of such proposed decision; and
(d)Advise the father in writing of the final decision made.
That the child shall live with the mother.
That unless otherwise agreed in writing between the mother and the father, the father shall spend supervised time with the child on up to six (6) occasions per calendar year for a period of up to three (3) hours on each occasion:
(a)At the Catholic Care Contact Centre (“Contact Centre”) in (omitted) at the availability of the Contact Centre; or
(b)At a venue nominated by the father to be supervised by any of the following supervising services:
(i)Phoenix Rising;
(ii)Connecting Families; or
(iii)Dial-an-Angel.
That, unless otherwise agreed in writing between the mother and the father, for the purpose of implementing Order 4 above:
(a)The father shall give the mother no less than one (1) month’s notice in writing of the time and date of the supervised visit;
(b)Any nominated times are to be on a non-school day between the hours of 9 am and 3 pm;
(c)The father shall pay for all costs associated with supervision of the child’s time with the father;
(d)The mother shall be solely responsible for causing the child to be delivered to and collected from:
(i)The Contact Centre, if the supervised time is in accordance with Order 4(a);
(ii)The father’s residence if the supervised time is in accordance with Order 4(b); and at the commencement and conclusion of the supervised time; and
(e)The mother and father shall comply with all requests and directions of the Contact Centre or the supervising service.
That the mother and the father shall contact the Contact Centre within 7 days of the date of these Orders and do all things necessary to facilitate the father’s time with the child at the Contact Centre, including but not limited to attending an Intake Assessment.
That unless otherwise agreed in writing between the mother and the father, the father shall be permitted to have telephone communication with the child each Wednesday with such telephone communication to take place between 5.30 pm to 6 pm.
That in the event the father chooses not to contact the child pursuant to Order 7, the father shall notify the mother by text message confirming same no later than 12 hours beforehand.
That each parent shall inform the other parent of their contact telephone number and advise the other party in writing within 48 hours of any change in these details.
That the parents shall not denigrate the other parent in the presence or hearing of the child, and each parent shall ensure that no third party denigrates the other parent in the presence or hearing of the child.
That in the event of the child suffering a medical emergency requiring medical attention while spending time with or living with either parent:
(a)The other parent is to be notified as soon as practicable
(b)That the other parent is to be provided with the full details of the practitioner of medical facility upon which the child attends as soon as practicable
That each parent is entitled to obtain directly from the child’s school copies of any reports, notices or other relevant verbal or written advice affecting the education of the child.
That each parent is entitled to obtain directly from any doctor or health or welfare professional or other professional attended by the child copies of any reports, notices or other relevant verbal or written advice affecting the health and welfare of the child and for this purpose each of the parents shall immediately notify the other of the names and contact details of any relevant doctor or health or welfare professional and keep the other parent so informed.
That the mother be permitted to move to the (omitted) Area with the child upon the child completing his school year in 2017.
IT IS NOTED that publication of this judgment under the pseudonym Rickard & Issa is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5718 of 2009
| MS RICKARD |
Applicant
And
| MR ISSA |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This was the Final Hearing of parenting proceedings between Ms Rickard (“the mother”) and Mr Issa (“the father”) regarding the child [X] born (omitted) 2005 (“the child”).
On 24 September 2010, Donald FM (as he then was) made final parenting Orders, inter alia, that the parties have equal shared responsibility for the child; that the child live the mother; that the child spend unsupervised time with the father (after he commences school) each alternate week during school term, from Friday afternoon to Monday morning, and each week during school term, from Wednesday afternoon to Thursday morning, together with time during school holidays; that neither party shall reside more than 30 km from a post office at (omitted); and that the child attend (omitted) Public School.
On 22 February 2015, an incident occurred involving the child and the father. The father asserted that the child hit himself whilst having a tantrum when the father tried to restrain him, whilst the child asserted that the father struck him in the face. Thereafter, criminal proceedings were instituted against the father arising out of this incident.
On 23 February 2015 the child ceased spending time with the father.
On 7 July 2015 the father was convicted of assault occasioning actual bodily harm on the child and received a two-year bond under section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
On 26 November 2015, this Court made interim Orders by consent, that, inter alia, pending an interim hearing, the previous parenting Orders of 24 September 2010 providing that the child spend unsupervised time with the father were to be suspended. The Orders further stated that the child was to spend time with the father for three hours on each alternate Saturday, with such time to be supervised by Phoenix Rising, and that the child was to have telephone time with the father on Wednesday evening and on Christmas Day.
On 17 December 2015 the father’s appeal against the above conviction was dismissed.
In about late November 2015 the child began to spend supervised time with the father through Phoenix Rising.
On 7 March 2016, the Court, inter alia, ordered a Family Report, and appointed 5 December 2016 for an interim hearing relating to the issue of the nature of any time, if any, to be spent by the child with the father.
On 14 October 2016, the interim hearing of 5 December 2016 was vacated by consent. The proceedings were listed for a three day final hearing in relation to parenting commencing 6 February 2017.
On 6 February 2017, the proceedings were set down for a three day final hearing in relation to parenting on 15 May 2017.
Parties’ proposals
The final proposed parenting Orders sought by the mother and Independent Children’s Lawyer (“ICL”) are set out in Exhibit U, containing fourteen proposed parenting Orders. Inter alia, they proposed that the mother have sole parental responsibility for the child; that the child live with the mother; and, unless otherwise agreed in writing between the parties, that the father spend supervised time with the child on up to six occasions per calendar year for a period of up to three hours on each occasion, at the Catholic Care Contact Centre in (omitted), or at a venue nominated by the father, to be supervised by either Phoenix Rising, Connecting Families, or Dial an Angel. They also proposed that the father have telephone communication with the child each Wednesday, and that the mother be permitted to move to the (omitted) Area with the child upon the child completing his school year in 2017.
The father sought final parenting Orders, as set out in Exhibit D, his initial Case Outline, that inter alia, the child attend a local high school between the parents’ residences, either (omitted) High School or (omitted) High School; that the parents recommence Federal Magistrate Court Orders of 24 September 2010, and then alternate weeks after school Friday afternoon to Friday start of school; and that if the Court:
see that the mother is not capable of caring for the child or providing false information or alienating the father from the child. Spend time with father. The mother to have supervised custody for two years, phone call between 6-7 PM each Wednesday. After two years fortnight access Friday after school till Monday start of school.
The father’s last Case Outline (Exhibit S), then sought Orders firstly, on a without admissions basis, that the parties be restrained from causing or allowing the child to be physically disciplined, and, secondly, in the event that the Court is minded to make an Order that the father’s time with the child be supervised, that such time be supervised by the father’s partner, Ms J.
Material relied upon
The mother relied upon the following documents:
a)Affidavit of Ms Rickard filed 17 January 2017
b)Affidavit of Mr D filed 17 January 2017
c)Family Report dated 24 August 2016
The father relied upon the following documents:
a)Affidavits of Mr Issa filed 30 June 2015, 19 November 2015, 24 April 2017, 9 August 2017 (affirmed 8 August 2017)
b)Affidavit of Ms J filed 19 November 2015
c)Affidavit of Ms Rickard filed 27 March 2015 and 24 November 2015
The ICL relied upon the following documents:
a)Family Report dated 24 August 2016;
b)Child Inclusive Conference Memorandum prepared by Ms A dated 13 November 2015
The following exhibits were relied upon:
a)Mother’s Case Outline (Exhibit A);
b)ICL’s Case Outline (Exhibit B);
c)Family Report dated 24 August 2016, CIC memo 13 November 2015 (Exhibit C);
d)Father’s Case Outline (Exhibit D);
e)7 colour A4 photographs of child [X] (Exhibit E);
f)ICL’s proposed direction (Exhibit F);
g)Affidavit of Ms Rickard, 17 November 2009, paragraphs 11-39 (Exhibit G);
h)Police Record, Mr D (Exhibit H);
i)Sleeve 18, District Court of NSW documents, M18.1, 18.2, 18.3 (Exhibit I);
j)Sleeve 19, Report by Phoenix Rising dated 30 April 2016; M19.1, M19.2, D5, M19, ICL2) (Exhibit J);
k)Sleeve 11, Department of Community Services (tabs B 60 and B 61; Red tab M1, M2; Bi3, Bi4) (Exhibit K);
l)Sleeve 16, (omitted) Community health (tab B62, B63, B64, B65, B66, ICL3) ICL1, M8, M9, M10, M11, KR2; F1 (Exhibit L);
m)Sleeve 12, (omitted) Medical Centre dated 23 February 2015, (Tab ICL1) (Exhibit M);
n)Sleeve 22, Mr M (M22.2, 22.3, 22.4, 22.6) (Exhibit N);
o)Sleeve 25, Ms P (M25.1, M25.2, Green tabs) (Exhibit O);
p)Copy of the parties’ Communication book (Tabbed documents) (Exhibit P);
q)School Reports of [X] for the years 2015, 2016, and Semester 1 2017 (Exhibit Q);
r)A4 colour copy of a photograph of [X] dated 16/7/14 (Exhibit R);
s)Father’s Case Outline (Exhibit S);
t)Photos of [X] (2 small albums, one sleeve of photos) (Exhibit T);
u)Independent Children’s Lawyer’s proposed Minutes of Order (Exhibit U).
Evidence
The mother was born on (omitted) 1970. The father was born on (omitted) 1968. The father is a qualified (occupation omitted). As at August 2017 he was unemployed.
The mother lives in (omitted). The father lives at (omitted).
The parties were in a relationship from about 1996 to about late 2007 or early 2008.
In 2011 the child commenced school. The child at trial date was attending (omitted) Public School.
Since commencing school, and up until February 2015, the child spent regular time with the father, inter alia, each alternate weekend from Friday afternoon to Monday morning and each Wednesday night, pursuant to Court Orders of 24 September 2010.
Between late November 2015 and April 2016, the father spent supervised time with the child through Phoenix Rising. The child’s supervised time with the father recommenced in early December 2016 and ceased in about January 2017.
On 23 February 2015 the mother received a phone call from the child’s school, specifically from the Vice Principal. The mother was informed that the child had a black eye, which had occurred before the child arrived at school that morning.
On 23 February 2015 the child told the mother that the father had struck him. He told the mother that he could not tie his shoelace and the father’s partner had to help him, and the father came up and hit him in the face. The child told the mother that the father’s partner said to the father, “why did you do that?” He told the mother that the father’s partner got him some cold peas for his eye. He told the mother that the father’s partner said to the father, “you’ve fucked up now haven’t you?” The child told the mother that when the father dropped him at school he told the child to tell everyone that the dog did it. He told the mother that the father said to him that if he told anyone he would get another black eye in the other eye.
The mother had her friend and housemate, Mr D, take the child to the family doctor. She also called the police who attended her home and took a statement. An Apprehended Violence Order was taken out for the child’s protection, with an interim Order being made on 6 March 2015 in the Local Court at (omitted).
On about 24 February 2015 the child told the mother that he did not want to see the father, that the father made him feel sad, and that the father hurts him and was mean to him.
There were numerous occasions since 26 November 2015 when the child was reluctant to speak with the father by telephone. On one occasion the child told the mother that he did not want to talk to the father and that he had not forgiven the father yet. The mother encouraged the child to speak to the father when the child made such comments.
On 13 November 2015, the child and the mother attended the Child Inclusive Conference at the Court. At the reception desk, the mother observed that the child was physically shaking. Later that day the child told the mother words to the effect, “I miss dad but I don’t want to see him because I know that he is going to hurt me.”
In late April 2016, the child told the mother that he was afraid that the father was going to come to his school. The mother observed that the child appeared distressed about this issue. On more than one occasion in 2016 the child told the mother that he was worried that the father was going to come to his school.
In early to mid-November 2016, after the mother told the child that the father wanted to start seeing him again, the child told the mother that he did not want to see the father. In the following days the mother observed the child to be withdrawn. The mother took the child to his psychologist to assist with discussing the father resuming his time with the child. The psychologist told the mother that the child only wanted to see the father if there were police present.
In late November 2016 the child told the mother that he did not think the father cared for him.
On about 6 December 2016, at an assembly of the child’s school when the child was to be made a prefect, the mother noticed the child was crying and appeared upset. The teacher informed the mother that the child was afraid that the father was going to turn up.
The mother suffers from diabetes and high blood pressure. She takes medication for these conditions. The mother also has a heart condition, endometriosis, irritable bowel and sleep apnoea. The mother has also been diagnosed with anxiety and post-traumatic stress, and she takes medication regularly for these conditions. She attends her treating medical health practitioner regularly.
The mother considers that these conditions do not affect her ability to care for the child. The mother does not drive if she is feeling tired.
The child was diagnosed with cerebral palsy at birth. The child had physical therapy, occupational therapy and speech therapy at (omitted) Hospital until he was six years of age.
The child has a slightly unusual walking gait and wears splints in both his shoes. The child sees a physical therapist and occupational therapist once every twelve months.
The child sees the psychologist, Mr M, about once or twice a month. This is financed through the Victims of Crime scheme.
The mother believes that the child has some intellectual delay. The child receives assistance from a teacher’s aide at his primary school.
The mother resides in rental accommodation in the (omitted) area with her friend Mr D. The mother receives a Newstart Allowance and Family Tax Benefits from Centrelink.
The mother has completed an (qualifications omitted) of (omitted). The mother plans to complete a (qualifications omitted) in (omitted) online.
The mother considers that Mr D has a strong bond with the child and that he has been an important part of the child’s life for over six years. When the mother is unable to care for the child, she relies upon Mr D and her father (aged 74) who lives about an hour away from her at (omitted).
Although Mr D does assist the mother with some activities for the child, the mother is the primary carer of the child and performs the majority of parental duties.
The mother considers that the (omitted) area is a nice quiet region and she would like to have a fresh start from previous court proceedings and events in the child’s life. She seeks to relocate there with the child due to concern about her current living arrangements, because the father knows where she and the child live. She is also concerned that the father may attend her home, particularly following the expiration of the Apprehended Violence Order in March 2017, and cause further stress for the child.
The mother proposes to live in the same residence with Mr D if she relocates to the (omitted).
The mother would still be able to transport the child to and from supervised contact centres, were she to relocate to the (omitted), provided that such contact centres are in the (omitted) Sydney or (omitted) Sydney area.
The mother was cross-examined by the ICL.
The child had not spent supervised time with the father since about January 2017. No telephone communication was presently occurring with the father, who would only telephone every second or third week to speak to the child. Telephone conversations had been decreasing between the child and the father since about January 2017.
An Apprehended Violence Order in place for the child’s protection expired in March 2017.
In relation to the assault proceedings against the father in the Local Court, relating to the assault upon the child, the mother, the child, a teacher’s aide, the father and his partner gave evidence.
The mother stated that the child was aware that she was not fond of the father. The child, according to the mother, was not aware of the mother being uncomfortable with the child spending time with the father.
The child had told the mother constantly, after the Apprehended Violence Order expired in March 2017, that he was afraid of the father coming to his school.
The child had told the mother a number of times that he was scared of the father. He had told the mother that he only wanted to see the father if the police were present.
Since the Apprehended Violence Order expired on March 2017, as far as the mother was aware, the father had not approached her home or school. The mother nevertheless believed that the father might attend her home despite the expiry of the Apprehended Violence Order.
The mother believed it was important for the child have a relationship with the father.
The mother was not opposed to the father speaking with the child on the telephone.
The mother confirmed that she could not communicate with the father.
The mother agreed that if the Court ordered sole parental responsibility to the mother, it was important for the father to be kept informed of important things in the child’s life.
The mother stated that the child did not want the father to know where he lived or the school he attended.
The mother was cross-examined by the father.
The mother had not involved the father in making decisions for the child since the father’s conviction for assault of the child.
The mother believed that when the parenting Orders were suspended, she was not required to inform the father of relevant matters affecting the child.
The mother stated that the child did love the father.
The mother stated that the parties’ former communication book recorded certain arguments that the parties had had previously.
The mother stated that the child had not wanted to play sport as he was worried that the father would turn up at his sporting events.
The child did not want to speak to the father on the telephone on Christmas Day 2015.
The mother stated that the child did not have a tendency to lie. The mother stated that the child would not make up stories to help her situation.
The mother stated that if she was permitted to relocate to the (omitted), she would probably have the child attend after-school day care while she was studying unless Mr D was to care for the child after school.
The mother stated that her brother Mr J was one of her support network. The mother denied that he had drug and alcohol tendencies or a dependency. The mother’s brother has told her that he takes medication.
The mother no longer smacks the child on the hand and bottom. The last time she smacked the child was some time in 2016.
After the assault by the father upon the child, the child asked the mother many times whether he could change his surname. He felt strongly about this issue.
The mother agreed that it would be of benefit to the child to play sport. The mother would not allow the child to play rugby league. However she wanted the child to play (omitted).
The mother stated that if she was permitted to relocate to the (omitted) she would be able to comply with any Orders for the child to spend supervised time with the father, whether the relevant contact centre was at (omitted), (omitted) or (omitted).
The mother cross-examined the father.
The father confirmed his view that the criminal conviction was wrong. He had stated this to the family consultant.The father did not acknowledge that he had struck the child in the face, and stated that the child was not aware of what happened in the incident.
The father admitted that he had physically disciplined the child on occasions apart from the assault-related conviction.
The father stated that the child may have overheard him swearing on occasions. He denied swearing directly at the child.
The father was asked by the Court whether, if he were to spend time with the child in the future, he would consider the possibility of smacking the child if he was misbehaving. The father responded that, “after all this, no,” he would not physically chastise the child.
The father agreed that the mother did not interfere with his relationship with the child during the period that the Orders of 24 September 2010 were in force up until the time of the assault in February 2015.
Following the Court Orders of 26 November 2015, relating to the child having supervised time with the Father through Phoenix Rising, the child spent about seven visits with the father. The first visit was on 16 January 2016 and the last one was in about January 2017.
The father stated that presently the child’s relationship with him was fairly strained. The father stated that this issue could be fixed by recommencing time with the child. He acknowledged not having seen the child for seven months.
The father stated that he would be prepared to attend upon a professional to reintroduce the child into his life. The father stated that he would be open to attending a program such as Keeping in Contact run by Unifam at (omitted).
The father confirmed that he was seeking a week about arrangement although at first there needed to be some sort of intervention so that the child could accept that he was going to see the father.
The father stated that he had read the Family Report, including paragraph 64 of the report in which the child told the family consultant that the father had never said sorry for hitting him in the eye.
The father stated that the child has never asked him for an apology (relating to the assault incident). The father would be happy to provide an apology if it would make the child feel better within himself.
The father conceded that if the mother was permitted to relocate to the (omitted) it would be difficult for her to take the child to the (omitted) High School, which is situated between (omitted) Park (where he lives) and (omitted) (where the mother lives).
The father stated that in the future he could communicate with the child a lot better; a more gentle approach to communicating with the child might be appropriate than just being blunt. He would also not physically chastise the child.
The father was asked how he would propose to deal with discipline issues with the child if he was spending time with the father. Inter alia, the father stated that he would try to have a bit more communication with the mother and possibly talk to her about it. He also stated that he would have to think about what he said before he said something (to the child), and “approach it in a better manner.” In this context the father stated that he had seen from some of the reports that he had been a bit harsh and probably a bit insensitive towards the child.
The father stated that whilst he has done his best to communicate with the mother, such communication has not been reciprocated by her; the mother has not been willing to communicate with the father other than through her lawyers.
The father stated that he had not previously raised a teenage boy. He had completed parenting courses back in about 2010. He had not read any books on raising teenage boys or adolescent boys.
Mr D
Mr D is aged 55 years. He has known the mother for about seven years. He has lived with the mother as her housemate since about (omitted) 2011. He considers that he has a positive relationship with the child.
Mr D has three older children from his first marriage who are over the age of eighteen years. He sees his children and grandchildren on a regular basis.
Mr D works as a (occupation omitted) and is self-employed. He can work flexible hours. In the event that the mother is unable to care for the child, his employment is flexible enough that he can care for the child until the mother is able to do so.
Ms J
The father’s partner, Ms J, is aged 53 years. She commenced cohabitation with the father in (omitted) 2009. She describes her occupation as (occupation omitted).
She gives a version of the assault incident consistent with the father’s version.
Exhibits
The Court has considered all the documentary exhibits, and now refers to some of those exhibits.
Exhibit E comprises seven colour A4 photographs of the child which appear to reveal discolouration around the child’s right eye.
Exhibit J includes a contact report prepared by Phoenix Rising relating to a visit between the child and the father on 30 April 2016. During the visit the child and the father engaged in certain activities at both the father’s residence and the local park. During the visit, the father was at times critical of the child and made disapproving comments in certain respects. For example, the child told the father that he had already eaten lunch before he had left home. The father replied that the whole point of coming to his house was to have lunch there. The child looked uncomfortable and smiled awkwardly.
At another point during the visit, the father faced the child and asked him about Mr D, and if he was still seeing him. The child said he did not know. The father told the child to “tell everything”. The father threatened to tell Mr M (the child’s psychologist). The child looked uncomfortable and told the father that he did not want him to. The child said that he did not want to talk about it. Then the father told the child not to keep secrets from him, and added, “I’m the adult, you’re the child.” The child appeared scared and changed the subject to football.
On another occasion, the father proceeded to ask the child who had dropped him off, and asked if Mr D had. The child answered that his mother had dropped him off. The father asked why Mr D hadn’t dropped him off. The child replied that Mr D had “busy things to do.” The child appeared uncomfortable and scared.
Exhibit M includes a clinical note in relation to the child from the (omitted) Medical Centre dated 23 February 2015, which states:
a)bruised R eye, slapped by father yesterday afternoon following failed attempt tying shoelaces; (child) reports he was then asked not to told anyone of the incident, he tells he won’t be welcomed; (the child) reports mild headache yesterday which settled overnight… He reports past H/O similar incidents of thighs and buttock etc; today he reported the incident to the teacher who contacted docs and mom reported to police; O/E alert/oriented, face – superficial bruise marks around R eye/photograph taken with consent.
Exhibit N includes an email from the child psychologist Mr M, dated 23 May 2016, addressed to the father, and stating, inter alia, that he had consulted with the child over twelve sessions from 20 August 2015 and continuing. It was stated that treatment had included many discussions related to the child’s reports of anxiety in relation to contact with the father.
The clinical notes for 7 September 2015 record the child telling the psychologist that he did not want to see the father because the father might slap him again; and the father did not even say sorry.
Child Inclusive Conference
This conference was held on 13 November 2015 with Ms A, family consultant. At this time the child was aged about ten years and seven months.
The parties reported to the family consultant that they were unable to discuss the child’s needs. The mother stated that the father was aggressive and had tried to intimidate her, and she felt unable to negotiate with him.
Both parents reported to the family consultant that the child had issues with his fine motor skills.
The child presented to the family consultant as a child younger than his age and state of development, both physically and cognitively. Throughout the interview, the child was observed to make unrelated statements repeatedly and wring his hands.
The child told the family consultant that he had not spent time with the father since March 2015. He stated that this was because the father had hit him in the face. The child described attending Court and being interviewed by the police. He said that the father had hit him at other times, on other parts of his body, but only once on the face.
The child denied that the father’s actions were in the context of discipline. He said that, if he saw the father again, he would be worried that he would be hit again.
The child was asked by the family consultant as to his views about spending time with the father, if the father promised not to hit him. The child said that he still did not want see the father. The concept of the contact centre was described to the child and he said that he did not want to see the father there either.
The child was asked about speaking to the father on the telephone. The child said that he would be hanging up on the father when he called, unless he felt like speaking to him. The child said that, at times, the father was nice to him. He did not consider that his experiences of the father were always negative.
The child spoke positively about Mr D.
The child spoke positively about the mother. He denied any worries or concerns while with her.
Under the heading “Future Directions”, the family consultant stated that the child had raised significant concerns about his physical safety with the father. She also stated that the child had expressed a strong view that he did not want to see the father.
The Family Report
The family consultant was again Ms A. Her curriculum vitae records her tertiary qualifications as Bachelor of Psychology, and Postgraduate Diploma in Forensic Psychology. Her employment history includes child protection coordinator and caseworker, and psychologist. Her Family Report is dated 24 August 2016. Relevant interviews with the parties, the child, and Mr D, occurred on 3 August 2016. There were telephone conversations between the family consultant and the father’s partner and the father on 18 August 2016.
The family consultant interviewed the mother.
The mother stated that she did not notice any significant change in the child’s behaviour prior to or after spending time with the father, other than seeming quieter.
The mother stated that the father had telephone contact with the child on Wednesdays but the child had told the father he did not want to talk to him and hung up.
The mother reported that she had noticed a change in the child’s behaviour after speaking with the father on the telephone. She said that he began playing with his faeces and that she had smacked him. The mother stated that the child’s psychologist, Mr M, had spoken with the child about this issue and the behaviour had since ceased.
The mother stated that she did not think that the child wanted to spend time with the father and he was scared of him.
The mother stated that she wanted to move to the (omitted) area, and for the child to attend school there, as she had ongoing fears for her and the child’s safety, due to the father knowing her address and which school the child attended.
The father reported to the family consultant that he had not spent time with the child for a couple of months due to difficulties with the mother.
The father stated that he considered it more appropriate for the child to spend two days with one overnight stay with him, and then increase time from there to become an equal time arrangement.
The father stated that he received the child’s school reports directly from his school.
In relation to the father’s conviction for assaulting the child, the father told the family consultant that he had been unfairly judged and wrongly convicted.
Mr D told the family consultant that he had been transporting the child to the father’s residence to spend supervised time with him. He stated that the child was often nervous when he dropped him off.
The family consultant interviewed the child.
The child presented to the family consultant as a child younger than his age and apparent stage of development. Prior to the commencement of his interview, the child appeared nervous and asked where the father was. When he was told that he was being interviewed alone with the family consultant, the child appeared to relax and readily followed the family consultant to begin his interview. He was friendly and polite throughout.
The child stated that the father had hit him at other times, besides the incident relating to the father’s conviction, on his hand and on his behind.
The child was asked about the occasion when the father had struck him in the face. He stated that they were going out and he was trying to do his shoelaces. He told the family consultant that he was not able to do his shoelaces without help, because he had problems with his arms. The child stated that the father had “whacked me in the eye with [his] hand, the Police noticed marks.” He stated that the father’s partner was there and she looked down.
The child thought that the father would be angry with him for telling the police that he had hit him. He stated that he would get hit as soon as the time he spent with the father was not supervised anymore.
The child stated that he did not think that the father cared about him. He stated that he thought this was because, when he previously spent time with the father, the father was usually doing something on his telephone and not listening to him. The child stated that he was now not seeing the father anyway. He explained that the father was supposed to see him every two weeks, but he had not seen him for three months.
The child stated that he wanted to move away because he was scared of the father. He stated that he was scared that the father would hit him again. The child stated that he did not want the father to know his new house, if he moved. He said that he felt scared every time he spent time with the father. The child explained that he felt most scared when Mr D or the mother drove and parked near the father’s house, to allow the child to spend time with the father.
The child was asked about supervised time. The child stated that he did not believe that the father would not hit him again, even if he said that he would not. The child stated that the father had never said sorry for hitting him in the eye. He explained that the father had threatened him and told him that if he told people he had hit him in the eye, he would hit him in the other eye. The child said that, despite this, he had told his teacher what had happened to his eye.
The child stated that he did not want to see the father again and did not want to talk to him on the telephone. He stated that if he did have to see him, he wanted it to be supervised all the time.
The child denied that the mother or Mr D had spoken negatively about the father to him. The child stated that he liked Mr D. He stated that he had never felt scared of him or the mother.
The family consultant observed the child with the father. Prior to entering the observation room where the father was waiting, the child told the family consultant that he was feeling a bit scared.
The father asked the child for a “cuddle” and the child complied. The father spoke to the child and asked questions. The child answered the questions asked of him, but appeared physically tense. The conversation continued, and the child appeared to become more relaxed and engaged in the conversation. The child enjoyed playing a car game with the father.
At one point the father commented that the child had a blocked nose and his zipper on his pants was down. The child then spontaneously asked, “can I go now?” The father stated that it was up to the family consultant. The child looked at the photos on the father’s phone and the father asked him if he liked his lollies (which the father had given him) and said, “what do you say?”, to which the child responded, “thank you”. The father returned to talking about whether the child would like to help look after lambs at his house, and the child said, “no, can I go now?”. The family consultant then entered the observation room and returned the child to the child care room.
The family consultant provided her “Evaluation”.
The family consultant stated that the child had maintained his concerns for his safety with the father during both the previous Child Inclusive Conference and at the family report interviews.
In view of the father’s conviction for assault occasioning actual bodily harm on the child, and the father’s appeal being unsuccessful, for the purposes of the family report, the family consultant stated that she considered the father to have physically assaulted the child, causing him injury. She noted that the father maintains his innocence and blames the court, the police, the child’s teacher and the mother for his conviction. The family consultant stated that as such, the father displays no insight into his offending behaviour and takes no responsibility for his actions.
The family consultant stated that in addition to the child’s inherent vulnerability due to his age, he is additionally vulnerable due to his physical disability and developmental delay.
It also appeared to the family consultant that the child feared retribution for disclosing the physical assault. She stated that it was unknown whether or not the child’s fears were justified.
The family consultant stated that both parties hold a highly negative view of each other. She stated that poor communication between parents can have a detrimental impact on children, as it can result in a lack of timeliness for decisions being made and expose children to conflict and/or abusive behaviour.
The family consultant stated that if the Court finds that the child’s concerns regarding his safety are valid, then it appeared to be risking his physical and psychological safety if he was to spend any unsupervised time with the father. In this context the family consultant stated that the father’s proposals that he spend unsupervised time with the child were likely to cause the child distress and make him hypervigilant in regards to his physical safety. This hypervigilance might affect him in other areas of his life, including at school and socially. He might experience continuing and prolonged stress, which would have a negative impact on his mental health and continuing development. He might also experience issues with trust and relying on adults to ensure his safety. Given the child’s experiences, the family consultant stated that it already appeared likely that the child would experience some psychological issues due to being physically assaulted by the father.
The family consultant stated that it was not recommended that the child spend unsupervised time with the father, as it appeared that the risks to his psychological and physical safety were high. The Court could consider the child spending ongoing supervised time with the father. The family consultant stated that the father’s partner could have been considered as an option for this, however, since she also denies that the child was physically assaulted, it appears unlikely that she would be able to act protectively of the child.
The family consultant stated that the child had previously expressed positive things about his relationship with the father. For the child to experience the father in a positive and safe manner, it appeared that supervision needed to continue. It was noted that no concerns were present during the child’s time with the father supervised by Phoenix Rising and the child had appeared to enjoy himself. The family consultant stated that the child appeared to get some enjoyment from the father during his observation session. She stated that this may have been due to the time-limited nature and contained environment of the observation session.
The family consultant stated that unless the Court could identify another person to supervise the time on a regular basis, it appeared that the only option was for it to occur four to six times per year at a Contact Centre. This would ensure the child’s physical and psychological safety and enable him to have a positive relationship with the father, albeit one which would necessarily be limited due to the identified risk factors, without having to be concerned about his safety.
The family consultant stated that the nature of the mother’s relationship with Mr D was unclear. However, she stated that it was not of particular significance whether he was her partner or not, as in either situation, he appeared to be an important and consistent adult in the child’s life.
The family consultant stated that it appeared that Mr D and the mother wanted to move to the (omitted) area together and continue living together, as “house-mates” or partners.
The family consultant stated that if the mother moved with the child to the (omitted), it was recommended that this occur after the child had completed primary school, to limit the amount of school changes required. The child should also maintain his appointments with his medical professionals. It did not appear that the mother had failed to meet his needs in this regard so far.
The family consultant’s specific recommendation was that the child live with the mother and spend supervised time with the father four to six times per year at a Contact Centre.
The family consultant was cross-examined by the father.
The father asked the family consultant about the nature of parental alienation. The family consultant stated that this occurs when one parent purposefully undermines, ruins or destroys their child’s relationship with the other parent for no other reason than conflict and a poor parental relationship.
The family consultant stated that she did have concerns of risk for the child with the father.
The family consultant stated that she had considered the Phoenix Rising reports. She stated that based on that information, if the Court found that there was an ongoing risk to the child, unless there was another person who could supervise the child’s time with the father, then she would still recommend that time be supervised by a Contact Centre.
The Court had the following exchange with the family consultant:
HIS HONOUR: If you assume hypothetically – and it’s not the case on the evidence to date, but if you assume hypothetically that the father had admitted to this assault conviction of a child, would that affect your evaluation and any recommendations?
Ms A: It might, depending on his attitude towards the offending behaviour. If he, for example, admitted to – took responsibility for that offence, had, for example, attended courses to – or sought out education or information to assist him to understand how and why that offence occurred and had a plan as to how he might deal with that situation again in the future without assaulting the child, that may have changed what my recommendations or – or what my evaluation of that situation was.
The family consultant stated that she had suggested in her Family Report that the child would be able to experience the father in a positive manner under supervision. The family consultant did not believe that the child would be able to feel comfortable and unafraid if he were to spend unsupervised time with the father.
The family consultant was cross-examined by the mother’s legal representative.
The family consultant stated that she was not prepared to change her recommendation after cross-examination by the father.
The family consultant was asked whether, in relation to her assessment, she identified any parenting deficiency in the mother. The family consultant stated that there was nothing significant enough in the mother’s report or any of the subpoenaed material that she saw that would lead her to make a specific recommendation about a parenting course or similar. In this context the family consultant stated that no issues had been raised about drugs and alcohol or anything of that nature.
The family consultant was questioned as to whether she would make any recommendation for the father to attend any particular course. The family consultant stated that if the father continued to maintain that he was wrongly convicted, then she did not know a course or a therapeutic intervention that would assist him, as most of them require the person to accept responsibility for their actions at the outset. In this context, she referred to a sixteen week course called Taking Responsibility, run by Relationships Australia.
The family consultant was questioned as to whether she had read Exhibit J, the contact report by Phoenix Rising relating to the visit between the child and the father of 30 April 2016, and whether she had any concerns arising out of this report. The family consultant stated that she had read Exhibit J and she did have concerns. She gave the following evidence:
MS TRAN: Would you be able to clarify and tell us what your concerns are?
Ms A: Yes. That report, in particular, gave me concerns about the nature of the relationship between Mr Issa and [X] in terms of Mr Issa. There was a general theme of Mr Issa appearing quite critical of [X]. The supervisor noted that [X] seemed uncomfortable and scared at different times. He, according to this supervisor, Mr L asked questions about Mr D and Ms R, which are likely to have made [X] feel uncomfortable and scared about what his response should be and what the reaction to that response would be. Sometimes, according to how I read the report, [X] seemed – or Mr Issa seemed to be somewhat intimidating towards [X]. All of those things, there are various throughout the report, in addition to some questioning that Mr Issa did of [X] that has an undermining theme to it regarding Ms R. All of those things combined might have made [X] anxious, uncomfortable, not enjoying his time with – with Mr Issa. It prioritises – it seems to indicate that Mr Issa was prioritising what he wanted to know rather than prioritising [X]’s feelings and how he experienced the time.
The family consultant referred to several other later meetings between the child and the father and that in general they were more positive visits.
The family consultant confirmed that at the Family Report interview with the child, the child generally appeared tense, nervous and anxious.
The family consultant stated that the child appeared genuinely concerned about his safety with the father, because it had taken some reassurance from the family consultant before the observation session with the father could occur. The child maintained, from the observation of the family consultant, a sense of uncomfortableness and nervousness with the father.
The family consultant was asked whether there was anything from the child’s presentation to her on the day of the interview that suggested that the child might have been coached by the mother to act or say things in a particular way. The family consultant stated that nothing stood out obviously.
The family consultant was questioned in relation to the father’s contention that the mother had alienated the child from him:
MS TRAN: Ms G, do you believe that [X] has been alienated – in the context of parental alienation, as you understand it, from his father by his mother?
Ms A: Whether or not alienation has actually occurred is a matter for his Honour’s determination at the end, but there’s a difference between realistic estrangement and parental alienation. Realistic estrangement might look like parental alienation, but is actually based on an event or a series of events or a – a poor relationship between the child and a parent, where the child does not want to continue a relationship with that parent and there’s a reason for it. With parental alienation there’s usually very minor reasons given by children as to why they don’t want to have a relationship with a parent and their responses are usually disproportionate to the reasons that they give. So in this case [X] reported some incidents which may lend themselves more to realistic estrangement rather than parental alienation. That isn’t to say that the mother hasn’t spoken negatively about the father to [X], but that, ultimately, is a matter for his Honour.”
The family consultant was questioned in relation to the father’s proposed orders for a week about shared care arrangement. The family consultant stated that a week about arrangement is usually indicated when the parties have a good relationship with each other and similar parenting styles, there are no significant safety concerns or parenting concerns about the other, there is a level of trust between the parents, and they are able to communicate effectively regarding the child. The family consultant stated that she had not seen those factors present in this case and hence she would not recommend an equal time arrangement.
The family consultant was questioned by the ICL.
The ICL questioned the family consultant as to the impact on the child if he was to go from being with his mother almost exclusively for some two years to spending week about with the father. The family consultant stated:
Ms A: Firstly, if [X] maintains that he feels fearful and anxious around Mr Issa, he having to spend seven nights a fortnight with him will be – [X] may experience that as quite stressful, he may experience ongoing anxiety that never ceases for that period of time. That might impact on his schooling, his ability to concentrate at school. He may end up with an ongoing mental health issue in regards to anxiety if he – if he continues to feel that way about Mr Issa. Also going from not spending significant time with Mr Issa to spending significant time is a considerable change for a boy who already appears, when I saw him, to be an anxious and nervous boy, that big change will also likely have a significant impact on him. His entire world and how he experiences it will change very significantly and, again, that may impact on his – his mental health, as I explained before. It may also impact on his feelings of security, for example, especially if the change happened quickly.
MR LADOPOULOS: If the father’s evidence is that he believes that [X] now believes he was assaulted by his father?
Ms A: Yes.
MR LADOPOULOS: Does that impact at all upon your assessment?
Ms A: No.
MR LADOPOULOS: If the father gave evidence that he had not apologised to [X] about the incident in February of 2015 because, effectively, [X] hadn’t asked him directly for an apology and that he had tried to raise it with [X] in a conversation on the phone, but [X] said he didn’t want to talk about it and Mr Issa’s view was that, in those circumstances, he wasn’t going to pursue it and offer an apology. What does that tell you, if anything, about any confidence the court might have into Mr Issa’s insight into [X]’s emotional needs?
Ms A: It tells me that his insight into his emotional needs is quite minimal. It would take more than apologising to a child for an assault for that child’s trust to be rebuilt in that parent and Mr Issa would need to be sensitive to the fact that [X] believes that he has been … physically assaulted and has experienced the ramifications of that emotionally.
HIS HONOUR: Sorry, could you just repeat that last passage of evidence?
Ms A: Yes.
HIS HONOUR: Firstly, you said it would take more than an apology for there to be a restoration of trust between the child and the father I think you said?
Ms A: Yes.
HIS HONOUR: And then what did you say?
Ms A: That Mr Issa would need to be able to have – have a sensitivity and an understanding of [X]’s – the consequences of that assault on [X] in an emotional sense, which from what – what you said does not appear to be the case.
MR LADOPOULOS: To be fair, to put you in the context, Ms G, the evidence that the father gave that I’ve just paraphrased for you was in the context of him being asked about why he had not apologised to [X]. And it was put to him that, “You had read the family report where it was clear – it was reported that [X] had raised the fact that, you know, ‘My father hasn’t even apologised to me for hitting me in the eye.’ So that you must have known that it was something playing on [X]’s mind and yet you’ve chosen not to apologise” and he was asked about why not. And his response was that, “Well, I tried to raise with him whether he wanted an apology, he told me he didn’t want to talk about it” and Mr Issa decided that he would just leave it. So I guess my question was specific in that sense, does that sort of demonstrate any sensitivity to [X]’s emotional needs about ?
Ms A: No, because he would have – from my understanding of what you’re saying is he would have seen in the document ..that [X] had raised that with me about the apology and he shouldn’t be seeking for [X] to say that directly to him.
The following further exchange occurred between Counsel for the ICL and the family consultant:
MR LADOPOULOS: Thank you, your Honour. Ms A, if his Honour was to find that there is not an ongoing unacceptable risk of physical harm to [X], would that – accepting that foundation, would that change your recommendations?
Ms A: It may. As long as his Honour also finds that there is no risk of – no ongoing – ongoing risk of unacceptable harm of psychological or emotional abusive behaviour as well.
MR LADOPOULOS: All right. And can you elaborate what – what that risk of emotional or psychological harm is?
Ms A: It might include being overly critical of [X], making him feel otherwise scared or – of a perceived threat, even if that physical threat isn’t there anymore, if he perceives that it is, acting in an intimidating of threatening or manipulative manner. All of those things could be considered psychological harm.
The family consultant was questioned as to the long-term implications for the child if the family consultant’s recommendation for supervised time was to be adopted by the Court. She recognised that there were potential negative effects that might be experienced by the child. The family consultant confirmed her view that by reason of the father’s presentation and his lack of insight and ability to take responsibility for what had occurred, she did not believe there was a likelihood of success for therapeutic intervention. She referred to the implications for the child if therapeutic intervention was attempted and was unsuccessful. The family consultant stated that she had balanced “all these considerations up” in coming to her final recommendation as to supervised time between the child and the father.
Subject to the court’s discussion below under the heading “Section 60CC considerations”, the Court accepts the evidence and recommendations of the family consultant.
Relevant legal principles
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part 7 of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child, the Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order: section 61DA(3).
If the presumption of equal shared parental responsibility in relation to the child applies and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an Order that the child spends substantial and significant time (as defined in section 65DAA(3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such Orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC and 65D.
The best interests of the child
Section 60CC considerations
Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
The child has a meaningful relationship with the mother and will benefit from a continuance of that relationship.
The child’s former relationship with the father became significantly strained and fractured following the assault by the father upon the child in February 2015.
The assault has led to a realistic estrangement between the child and the father.
The Court does not accept the father’s contention that the mother has sought to alienate the child from the father following the assault (including, for example, instilling fear in the child in relation to the father). In this context, the Court notes that the child spent regular time with the father pursuant to the Orders of the Court of 24 September 2010 until the assault. Nevertheless, at least following the assault, the child became aware of the mother’s negative attitudes towards the father.
The mother’s expression of her negative views about the father towards the child after the assault should be seen (although not justified) in the context of the assault upon the child and the father’s criminal conviction in relation to it, including the mother’s experience of the father acting in an intimidating and aggressive manner towards herself, in particular at changeovers, following the Court Orders of 24 September 2010.
The child may well benefit from having a meaningful relationship with the father in the future, provided that he is not exposed to the risk of psychological harm in spending time with the father. In this context, the Court refers to its discussion below under the need to protect primary consideration, including its discussion that the father lacks insight into the child’s emotional needs.
Should the child spend unsupervised time with the father, there is a significant risk that the child will be exposed to psychological harm. Any such psychological harm also carries the not insignificant risk that the prospect of the child’s former relationship with the father being re-established in the future will be jeopardised.
Should the child spend supervised time with the father, as recommended by the family consultant, then there is a significant prospect that this should enable the child to have a positive relationship with the father, albeit one which would necessarily be limited due to the identified risk factors (see below under the need to protect primary consideration), without having to be concerned about his safety.
The evidence of the family consultant is consistent with these views.
The Court gives significant weight to this meaningful relationship primary consideration.
Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There is a need to protect the child from the significant risk of being exposed to psychological harm if spending unsupervised time with the father.
There is an unacceptable risk of the child being exposed to family violence, in the form of psychological harm, if spending unsupervised time with the father.
The child has become fearful about the prospect of spending unsupervised time with the father. In particular, the child is scared that the father will hit him again. Such view was expressed both at the Child Inclusive Conference and at the Family Report interview. He fears retribution by the father for having disclosed the physical assault. In this context, there would appear to be a lack of trust by the child towards the father; the child told the family consultant at the family report interview that he did not believe the father would not hit him again, even if the father said that he would not.
The child was observed by the family consultant at the Family Report interview to generally appear tense, nervous and anxious and concerned about his safety with the father. The child, according to the family consultant’s observations, maintained a sense of being uncomfortable and nervous with the father.
The father lacks insight into, and an ability to understand, the child’s emotional needs.
As discussed by the family consultant, by reason of the father’s continued maintenance of his innocence for the assault upon the child, he displays no insight into his offending behaviour and takes no responsibility for his actions.
The Court refers, in this context, to the father’s failure to provide the child with an apology for the assault, noting that the child had referred to the father’s lack of apology to the family consultant at the Family Report interview, and that the father had read the Family Report.
Another example of the father’s lack of insight into the child’s emotional needs is demonstrated by his inability to appreciate the potential emotional impact upon the child if he was to commence living primarily with the father, bearing in mind the child’s expressed fears about spending unsupervised time with him and the fact that the child has lived primarily with the mother for a significant period of time.
The critical and somewhat intimidating manner in which the father related to the child in the Phoenix Rising visit of 30 April 2016, as commented upon by the family consultant, including the father’s inappropriate questioning of the child, is an example of the father prioritising what he wanted to know over the child’s feelings and experience of the visit.
The Court refers to the father’s oral evidence that he would be prepared in the future to modify his parenting style towards the child by, inter alia, talking to the child in a gentler and less harsh manner, and also his acceptance that the child believes that he was assaulted by the father.
Despite this oral evidence of the father, in the view of the Court, by reason of the father’s lack of insight in relation to the emotional needs of the child, including his unwillingness to accept responsibility for the assault, the Court remains unpersuaded that the child would not be exposed to a significant risk of psychological harm if he were to spend unsupervised time with the father.
In this context, relating to the father’s lack of insight into the emotional needs of the child, the Court accepts the submissions of the ICL. The ICL submitted, inter alia, that the Court would not have confidence that the father would be able to manage the child’s concerns and anxieties in relation to the father. The ICL referred to the evidence of the family consultant in relation to what the implications would be if the child continued to have those anxieties and fears if he was to have unsupervised time with the father, and it was not a positive experience for the child in terms of the child’s interactions with the father.
The Court is of the view that the child’s supervised time with the father should not be carried out by the father’s partner, Ms J, by reason of her evidence denying that the child was physically assaulted by the father, and the resulting unlikelihood that she would be able to act protectively for the child. The evidence of the family consultant in the Family Report is consistent with this view.
The Court accepts the evidence of the family consultant that for the child to experience the father in a positive and safe manner, supervision needs to continue.
The Court accepts the evidence of the family consultant that therapeutic intervention to assist in restoring the child’s relationship with the father would be unlikely to succeed in light of the father’s unwillingness to accept responsibility for the assault. Furthermore, this may put the child through what may be quite an emotionally challenging process unnecessarily.
In the view of the Court, the risk of the child being exposed to physical abuse if he spends unsupervised time with the father is probably not significant, particularly given that the father has faced and endured criminal proceedings as well as the current proceedings in relation to the assault. In this context the Court has not overlooked the father’s continued maintenance of his innocence.
The Court does not accept the father’s contentions as to any significant parenting deficiency in the mother. Inter alia, the Court refers to the mother’s protective actions towards the child in relation to the assault incident; her efforts to have the child attend upon various health professionals, particularly in relation to his cerebral palsy; her general day-to-day care of the child (such as obtaining the competent assistance of Mr D from time to time); and the mother’s attendances upon health professionals for her own medical issues. The evidence of the family consultant in the Family Report is consistent with this view.
The Court also gives significant weight to this need to protect primary consideration.
Section 60CC(3): additional considerations
(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
By reason of the assault upon the child, and the anxieties, fearfulness, and behaviours exhibited by the child after the assault, as observed by the family consultant and the mother, the Court gives significant weight to the views of the child relating to spending time with the father.
In this context, the Court has not overlooked the age of the child, nor the observations of the family consultant that the child presented as a child younger than his age and apparent stage of development.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers to its discussion above under the meaningful relationship primary consideration.
The child has a positive relationship with Mr D.
The child probably had a positive relationship with the father’s partner previously, but it is noted that he has not spent time with her for some time.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
At least following the assault, the mother did not involve the father when making decisions about major long-term issues in relation to the child.
The father spent time with the child following the Court’s Orders of 24 September 2010 until the time of the assault when the mother decided not to facilitate the child’s time with the father.
Following the interim Orders of the Court of 26 November 2015, providing for the child to spend supervised time with the father, the child spent some seven supervised visits with the father, with the last visit being in January 2017.
(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 is required to pay about $34 per month in child support, and at the time of trial, was making an additional payment to rectify past arrears of child support.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court refers to its discussion above under the primary considerations. Again the Court refers to the evidence of the family consultant relating to the significant risk of the child experiencing negative effects upon his emotional well-being if he was to live primarily with the father or spend unsupervised time with him.
(e) - The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
The Court refers to its discussion below relating to the mother relocating the child’s residence to the (omitted).
(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
Subject to the Court’s discussion above under the meaningful relationship primary consideration, the mother has the capacity to so provide for the child.
The Court refers to its discussion above under the primary considerations relating to the father’s inability to provide for the child’s emotional needs. The father would appear to have a capacity to provide for the child’s intellectual needs.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The Court refers to its discussion above under the primary considerations. The Court refers to the child’s cerebral palsy, his limitations and treatment in relation thereto, and the family consultant’s observations of the child who appeared to be a child younger than his age and stage of development.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right.
Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Court refers to its discussion above under the primary considerations. Subject to those discussions, including the fact of the father’ s assault upon the child, the parties appear to have demonstrated appropriate attitudes towards the child, including to their responsibilities of parenthood.
(j) Any family violence involving the child or a member of the child's family
The Court again notes that the father was convicted of assault occasioning actual bodily harm in respect to the child.
Otherwise, the Court makes no findings in relation to family violence alleged to have been perpetrated by the father towards the mother.
In this context, the Court notes, inter alia, that Exhibit G (a portion of the mother’s Affidavit filed 17 November 2009) was tendered in re-examination of the mother, after the father’s cross-examination of the mother had concluded. The father relevantly denied the family violence allegations made in Exhibit G when cross-examined by the mother’s legal representative. Other exhibited evidence was tendered after the father’s cross-examination had concluded.
The Court makes no findings in relation to an alleged assault upon Mr D by the father in the presence of the child, noting, inter alia, the conflicting versions of this incident given by the father and Mr D.
There was a lack of significant cross-examination of the father in relation to statements made by the child to the mother and Mr D in respect to alleged statements made by the father to the child (other than relating to the assault conviction).
In any event, the main contested issue in these proceedings, relating to whether the child should spend supervised or unsupervised time with the father, does not turn on family violence issues that are alleged to have occurred between the parties, separate to the assault conviction incident.
(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter.
A final Apprehended Domestic Violence Order was made on 3 March 2015 against the father, spanning two years, to protect the child. It expired in March 2017.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
In the view of the Court, the parenting proposals of the mother and ICL are least likely to lead to the institution of further proceedings in relation to the child; again, should the child spend unsupervised time with the father, there is a significant risk of the child experiencing psychological harm.
(m) Any other fact or circumstance that the court thinks is relevant
The father contended that the mother had deliberately failed to comply with Order 8 of the Court’s Order of 24 September 2010, which requires each party to keep the other informed of certain matters relating to the child. The Court does not accept this contention and accepts the mother’s evidence that she believed that when certain of the parenting Orders were suspended on 26 November 2015, she was not required to inform the father of those matters relating to the child.
The Court rejects the father’s contentions that the mother’s only objective has been to make trouble for the father so as to ultimately obtain child support from the father.
Belatedly, in final submissions, the father sought an Order, if the Court made final parenting Orders as sought by the mother, that the mother be permitted to take the child’s possessions from the father’s house. The father submitted, inter alia, that it would be good for the child to have his things from the father’s house. The mother and ICL did not seek such an Order in their proposed minutes of Order. The Court is of the view that this would not be in the best interests of the child, and therefore does not propose to make this Order. Inter alia, it may jeopardise the prospect of the child’s former relationship with the father being re-established in the future.
The mother seeks permission to relocate the child’s residence to the (omitted). The mother considers the (omitted) area to be a nice, quiet region and she would like to have a fresh start from previous court proceedings and events in the child’s life.
The mother also seeks to so relocate as she is concerned about her current living arrangements, as the father knows where she and the child live since the AVO was made in March 2015. The mother is concerned that the father may attend their home and cause further stress for the child. In this context, the Court refers to the evidence of the mother and family consultant regarding the child’s anxieties, fearfulness and related behaviour when faced with the prospect of spending time with or being in the presence of the father.
The maternal grandfather and the mother’s brother live in the same residence in the (omitted) area. The mother would appear to have a positive relationship with those persons. The mother considers that she would still be able to rely upon the maternal grandfather for care of the child if required. She describes Mr D as a close friend who would also able to assist in care of the child if the need arose.
Should the mother be permitted to so relocate to the (omitted), she would still be able to transport the child to and from any supervised contact centres, providing that such centres were in the (omitted) Sydney or (omitted) Sydney area.
The Court is satisfied that it is likely that the mother will be able to appropriately meet the child’s physical needs should she relocate to the (omitted).
The mother proposes to live in the same residence as Mr D should she be permitted to so relocate.
The Court is satisfied that the mother will likely cope financially should she relocate the child’s residence to the (omitted). The Court accepts, in particular, the financial related evidence of the mother and Mr D in this context.
The father contends, inter alia, that the mother seeks to further alienate the child from the father by relocating the child’s residence to the (omitted) so as to minimise the contact between the child and the father. In this context, the father also raises geographical difficulties that he will face if the mother is permitted to relocate. Again, the court does not accept the father’s contentions as to alienation in these proceedings. And further, given the Court’s view that it will be in the best interests of the child to spend supervised time with the father and that the mother will be able to transport the child to the contact centres, as referred to above, this contention of the father is without merit.
It will be in the best interests of the child to permit the mother to relocate the child’s residence to the (omitted).
Parental responsibility
The presumption of equal shared parental responsibility does not apply in this case, by reason of the father’s conviction of assault occasioning actual bodily harm upon the child: s61DA(2) of the Act.
The mother is unable to communicate effectively and consistently with the father. The mother remains fearful of the father. The mother finds the father to be a very controlling and aggressive person who is very critical of her, and she finds it difficult to deal with him. The Court has no confidence that the parties would be able to have sufficient communication with each other to be able to reach any decision about the long-term care and welfare of the child in a timely fashion.
For example, the parties’ communication book, Exhibit P, tabbed documents, reveals numerous communications between the parties which are conflictual. In oral evidence the mother stated, in relation to the communication book, that the father was always complaining about something.
There is a significant lack of trust by the mother towards the father. The mother has been, and remains, the primary carer of the child, and pursuant to the Court’s proposed Orders, the child will spend supervised time with the father.
It will be in the best interests of the child that the mother have sole parental responsibility for him, subject to the mother notifying the father of any proposed decision relating to the long-term care and welfare of the child, taking into consideration any views expressed by the father in respect of such proposed decision, and then advising the father in writing of the final decision made by her.
Whilst not necessary to consider, neither an equal time arrangement nor an arrangement providing for the child spend substantial and significant time with the father would be in the best interests of the child. The Court refers in this context to the evidence of the family consultant.
Summary
Evaluating the primary and additional considerations under s60CC of the Act, as discussed above, the Court is of the view that it will be in the best interests of the child to make final parenting Orders in accordance with the mother and ICL’s proposed Minutes of Orders (Exhibit U).
The Court will make parenting Orders accordingly.
Should the father seek to bring a prospective application before the Court to, inter alia, vary the Court’s supervision requirement, he should be in a position to adduce evidence that persuasively demonstrates his insight and ability to address the child’s emotional needs, in particular arising out of the assault, having taken into account these Reasons for ordering supervised time.
I certify that the preceding two hundred and fifty-six (256) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Date: 11 April 2018
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Jurisdiction
-
Costs
-
Procedural Fairness
0
0
2