Roberts and Waters

FAMILY COURT OF AUSTRALIA

ROBERTS & WATERS

[2014] FamCA 34

FAMILY LAW – CHILDREN – Best interests of the child – Where it is agreed the child continue to live with the mother – The parties’ level of communication and cooperation – Where the parties agree to the mother having sole parental responsibility for the child – Where the father has a criminal history involving violent behaviour – What time the child should spend with the father, if any – Whether the father poses an unacceptable risk of harm to the child – Where the parties’ residences are not geographically proximate creating practical difficulties and expense if the father spends time with the child

Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC(2)&(3), 61DA

Briginshaw v Briginshaw (1938) 60 CLR 336;
G & C [2006] FamCA 994
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

APPLICANT:

Ms Roberts

RESPONDENT:

Mr Waters

INDEPENDENT CHILDREN’S LAWYER:

Ms Stanford

FILE NUMBER:

PAC

2983

2009

DATE DELIVERED:

31 January 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

28, 29, 30 and 31 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Friedlander

SOLICITOR FOR THE APPLICANT:

Bell Lawyers

RESPONDENT:

Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Weaver

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Stanfords Solicitors

Orders

All previous Orders in respect of B, born … April 2008, (“the child”) are discharged.
The mother is to have sole parental responsibility for the child.
The child is to live with the mother.
The child is to spend time with the father as follows, unless otherwise agreed between the parties in writing:
(a)During school term, from the date of these Orders and up until April 2014, for one (1) weekend per month, being the second weekend of each calendar month, commencing at 5.00 pm on Friday and concluding at 5.00 pm on Sunday.
(i)Such time is to take place in the Sydney Metropolitan area.
(ii)Such time is to be suspended during any month that the father is otherwise spending block school holiday time with the child pursuant to these Orders.
(b)Thereafter, for the purpose of all the following Orders in respect of the father’s time with the child, the father may remove the child from the Sydney Metropolitan area (unless otherwise provided).
(c)For the purpose of changeovers both during school term, school holidays and at times on special days as provided for in these Orders:
(i)The father or his agent is to collect the child from the mother or her agent at the D Contact Centre at the commencement of such time and the father or his agent is to return the child to the mother or her agent at the D Contact Centre at the conclusion of such time.
(ii)Until the D Contact Centre becomes available to facilitate changeover of the child between the parties, changeovers are to continue to take place at the E Contact Centre at Suburb A.
(iii)In the event of the contact centre not being able to facilitate changeover on any occasion in respect of the father spending time with the child pursuant to these Orders, changeover is to take place at McDonalds Family Restaurant at F Street, Suburb G.
(d)In the Term 1, 2014 school holiday period, for a period of five (5) days and four (4) overnights, commencing at 5.00 pm on the last day of school term and concluding at 5.00 pm on the fifth consecutive day thereafter.
(e)Thereafter, during school term for one (1) weekend per month, being the second weekend of each calendar month, commencing at 5.00 pm on Friday and concluding at 5.00 pm on Sunday.
(i)Such time is to be suspended during any month that the father is otherwise spending block school holiday time with the child pursuant to these Orders.
(f)In the Term 2 and 3, 2014 school holiday periods, for one (1) half of the school holiday period, being a block period of seven (7) days, commencing at 5.00 pm on the last day of school term and concluding at 5.00 pm on the seventh consecutive day thereafter.
(g)In the Term 4, (Christmas) 2014 school holiday period:
(i)For a block period of seven (7) days, commencing at 5.00 pm on the last day of school term and concluding at 9.00 am on the seventh consecutive day thereafter, being Boxing Day (26 December 2014).
(ii)For a further block period of seven (7) days towards the conclusion of the school holiday period, commencing at 10.00 am on a date agreed to between the parties and concluding at 5.00 pm on the seventh consecutive day thereafter.
(h)From the commencement of the calendar year 2015 and thereafter, the father spend time with the child:
(i)During school term for one (1) weekend per month, being the second weekend of each calendar month, commencing at 5.00 pm on Friday and concluding at 5.00 pm on Sunday.
(ii)During Term 1, 2 and 3 school holiday periods, for a block period of seven (7) days commencing at 5.00 pm on the last day of school term and concluding at 5.00 pm on the seventh consecutive day thereafter.
(i)During Term 4 school holiday periods for a block period of one (1) week commencing at 10.00 am on 1 January 2014 and concluding at 5.00 pm on the seventh consecutive day thereafter, and for a further block period of two (2) weeks, commencing at 10.00 am on a date agreed to between the parties and concluding at 5.00 pm on the fourteenth consecutive day thereafter.
(i)At Christmas in 2016 and each even numbered year thereafter, from 9.00 am on Christmas Eve (24 December) until 9.00 am on Boxing Day (26 December).
(j)On Father’s Day in each year commencing at 11.00 am and concluding at 5.00 pm and such time is to take place in the Sydney metropolitan area.
The father is to notify the mother by text message that he will be attending to spend time with the child, or otherwise, pursuant to these Orders no later than forty-eight (48) hours before the commencement time.
The father’s time with the child is to be suspended on Mother’s Day in each year. In the event that Mother’s Day occurs on a weekend the child would otherwise spend with the father under these Orders, the child is to spend another weekend from 5.00 pm on Friday to 5.00 pm on Sunday with the father in the month of May, at a time agreed between the parties.
During the time the child is spending with the father pursuant to these Orders, the father is not required to ensure that the child attends any scheduled sporting or extracurricular activity that the child is ordinarily required to attend.
The father is at liberty to telephone the child on the mother’s nominated telephone number between 5.00 pm and 5.30 pm each Wednesday and the mother shall facilitate and give the child privacy during the time the child speaks with his father.
The parties are to do all things and sign all documents, as soon as possible and within fourteen (14) days of these Orders, to complete the intake process at the D Contact Centre for the contact centre to facilitate supervised changeovers between the parties in respect of the child, and once the contact centre becomes available, the parties are to commence utilising that service instead of the E Contact Centre in Suburb A.
Within seven (7) days of these Orders and from time to time, the mother is to execute all documents, give all necessary consent and do all things to cause:
(a)The child’s treating medical practitioner to provide any information requested by the father to him regarding the child;
(b)The child’s preschool to provide any information requested by the father to him regarding the child;
(c)Any primary school the child attends to provide any information requested by the father to him regarding the child;
(d)Any secondary school the child attends to provide any information requested by the father to him regarding the child; and
(e)Any school enrolment form regarding the child to identify the father as an emergency contact for the child, including the father’s nominated telephone numbers to be called in the event of emergency.
For the purpose of Order 10(e) above, as soon as practicable but no later than within seven (7) days of these Orders, the father is to advise the mother by email or text message of his nominated telephone numbers and residential address.
The father and the father’s partner, Ms H, (“the father’s partner”) are permitted to attend:
(a)Any preschool, primary school or secondary school event involving the child and to which parents are invited;
(b)Any school parent/teacher interviews regarding the child;
(c)Any sporting event involving the child; and
(d)Any extracurricular activity involving the child to which parents are ordinarily invited to attend.
For the purpose of Order 2 above, the mother is to inform the father by email of any decision made by her regarding the child’s education, medical treatment or religion within forty-eight (48) hours of the decision being made.
The parties are to communicate by email or text message regarding the child.
Each party is to notify the other party and keep the other party informed at all times of their contact telephone number/s, residential address and email addresses, and is to advise the other party in the event of any change to such details as soon as practicable but no later than within seven (7) days of a change.
Each party is to notify the other party as soon as practicable in the event of any medical emergency involving the child.
Each party is to ensure that the child is not within the presence or hearing of any firearm.
Each party is restrained from denigrating the other party in the presence of or hearing of the child and is to immediately remove the child from being in the presence of or hearing of a third party who denigrates the other party.
The father is to attend upon Ms J, Clinical Psychologist at Town I, NSW (“the psychologist”), as and when required and is to continue under the care of the psychologist and is to follow the reasonable directions of the psychologist until such time as the psychologist advises the father in writing that his attendance on the psychologist is no longer recommended.
In the event of the father not spending time with the child in accordance with these Orders on three (3) consecutive occasions, and the father having not made any arrangements with the mother for his time to be spent at an alternative time by agreement, the father’s time with the child in accordance with these Orders will be suspended.
All outstanding applications and cross-applications in respect of the child are dismissed.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2983 of 2009

Ms Roberts

Applicant

And

Mr Waters

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction and Background

B, who is five and a half years old, (“the child”) is the child of Ms Roberts (“the mother”) and Mr Waters (“the father”). The mother and the father (“the parents”) were in a relationship for a few years from 2005 and the child was born in April 2008. The parents separated in about February 2009.
After separation, the child lived with his mother and spent time with his father as arranged between the parents, but there was significant conflict between them. Interim Orders were made on 31 August 2009 by consent for the child to spend time with his father each Monday, Wednesday and Saturday from 10.00 am to 4.00 pm but, for various reasons the child’s time with the father has not occurred in accordance with these Orders. Since that date, except on one occasion, the child has only spent time with his father during the daytime and at times more or less negotiated between the parents.
Initially changeovers occurred at a police station, as there were allegations made by each of the parents in relation to the other parent’s conduct, which continued despite the changeovers occurring at the police station. Changeovers were to take place at the K Contact Centre following the Orders of 31 August 2009, but the contact centre did not become available and, in default, the parties were to use a police station.
Following the Orders of 15 March 2010, changeovers have occurred at the E Contact Centre in Suburb A.
On 30 June 2009, the mother commenced proceedings in relation to parenting orders, and on 6 December 2012 filed an Amended Initiating Application, which is relied on in these proceedings.
In her Application the mother sought sole parental responsibility for the child and an order that the child live with her. Unless and until a forensic psychiatrist completes an assessment of the father and confirms that the father presents no risk of violence, the mother sought an order for the child to spend time with his father for six hours each alternate Sunday and on particular special days up to six hours.
The mother also sought an order that when the forensic psychiatrist provides a report in relation to the father presenting no risk of violence or when the child attains the age of 10, whichever first occurs, the child is to spend time with the father from 10.00 am Saturday to 4.00 pm Sunday each alternate weekend. The mother also sought an order for telephone contact between the father and the child once per week and for any changeover to occur at a contact centre.
The father initially sought in his Amended Response, relied upon in these proceedings, that the child live with the mother and spend time with him each alternate weekend from Friday 6.00 pm until Sunday 5.00 pm, with changeover to occur at McDonalds at Town L.
Neither party addresses school holidays in their application or response, though in the father’s Case Outline he sought special days and half of the New South Wales school holidays.
At the completion of the evidence the Independent Children’s Lawyer proposed an alternate Minute of Order providing for the mother to have sole parental responsibility and for the child to live with her but proposing a regime for the child to spend time with his father beginning with six occasions on each alternate weekend from 5.00 pm Friday to 5.00 pm Saturday, restricting the father and child to remain in the Sydney metropolitan area and gradually increasing thereafter.
In the Independent Children’s Lawyer’s proposed Minute of Order, after six occasions of a single overnight stay, the child would spend each alternate weekend from 5.00 pm Friday to 5.00 pm Sunday with his father, who would be permitted to remove the child from the Sydney metropolitan area. In addition, school holiday time was proposed in which the child would spend time with his father commencing with a five-day block from April 2014 and increasing to a two-week block during the long summer holiday from January 2015.
Other orders are proposed by the Independent Children’s Lawyer, including for changeovers to continue at the E Contact Centre until a place becomes available in the D Contact Centre. It is also proposed that orders provide for the father to confirm upcoming time with the child, together with a self‑executing order that the child’s time with his father be suspended if the father fails to attend for three or more consecutive periods of time.
Subsequently the mother proposed a further suite of orders for the child’s time with his father commencing with one overnight stay per month to occur in the Sydney metropolitan area until Easter 2014, and thereafter, one weekend per month from 5.00 pm Friday to 5.00 pm Sunday, with the first three monthly periods to occur in Sydney. Under the mother’s alternate proposal from July 2014 the child’s time overnight with his father could occur out of the Sydney metropolitan area and school holiday time would commence at the September holidays for a period of four nights, which would increase to seven days at the end of 2014 and two weeks at the end of 2015.
After the Independent Children’s Lawyer proposed the minute of order (referred to above) and the mother amended her proposal, the father proposed that the child spend overnight time with him every three weeks and agreed to remain in the Sydney metropolitan area for the first two occasions. Following the alternative orders proposed by both the mother and the father, the Independent Children’s Lawyer submitted that if the school term contact were to be reduced to one period per month then the school holiday regime of a block period of a week or more and a two nights overnight with the father should commence earlier.
In summary, by the time the matter was completed the parties had agreed that it was in the child’s best interests to spend time overnight with his father and in block periods during the holidays and for that to occur out of the Sydney metropolitan area. The only differences in the proposal between the parties are the commencement date, location and frequency of that time.

Matters not in Dispute

The parents first met some time prior to late 2005 when the mother was working as a government employee and the father was a prison inmate.
The father was at that time serving a lengthy sentence of imprisonment, which is said to relate to a charge of attempted murder, though his criminal history indicates that it was actually in respect of a lesser charge. There is no dispute that the offence related to the father having shot his employer as the father believed that his employer was a paedophile.
The father served eight years in prison commencing in September 1997 and concluding in September 2005. The father was released following his first application for parole and his parole was not revoked during the four years additional term, which concluded in September 2009.
Prior to his lengthy sentence the father had a significant criminal history commencing when he was a child of 14 and included two convictions for assault and one conviction for assault occasioning actual bodily harm as an adult. The offence of assault occasioning actual bodily harm was committed just over a year prior to the most serious offence.
The father has been convicted of one offence committed since his release, being one count of a contravention of an Apprehended Violence Order in June 2009. This resulted in a fine of $500 being imposed.
Whilst there is some dispute about whether a relationship commenced during the father’s incarceration, there is no doubt that it was current from shortly after his release from prison in September 2005.
The parents began living together in early 2006 and the child was born in April 2008. The mother’s child M, who was born in 1997 from a previous relationship, also lived with the parents. The parents separated in about February 2009, though there is dispute as to the reason for the separation.
The father moved out of the parties’ home in February 2009 and the child has lived with the mother since that date. Following separation for a few months until around late June 2009, the father spent time with the child at the mother’s home for several hours each day. After mid 2009 the father began spending time with the child away from the mother’s home.
Shortly after the separation of the parents the father commenced a relationship with Ms H (“the father’s partner”) and has remained in a relationship with her since that date.
On 27 May 2009 there was an incident at Suburb N shops involving the mother and father and the father’s partner.
On 24 June 2009 there was an incident at a club in Suburb N when the mother was having dinner with a friend. The father came to the restaurant and took the mother’s handbag, cardigan and mobile phone, and all items excluding the mobile phone were returned after security officers called police. Following this incident the mother sought an apprehended violence order for her protection, and an interim Order was made.

On 25 June 2009 the father was charged with contravening the Apprehended Violence Order and was convicted and fined $500 the following day.
On 30 June 2009 a final Apprehended Violence Order was made at Suburb N Local Court. On this day, the parents also entered into an agreement in relation to the child, which appears to have been organised by a domestic violence liaison police officer. Although there is some dispute about the circumstances in which this agreement was made, pursuant to it the father was to spend time with the child each Monday, Wednesday and Saturday between 10.00 am and 6.00 pm and telephone or video calls were permitted to continue any night before 7.00 pm.
On 4 July 2009 there was an incident between the parents where it was alleged by the father that the mother had assaulted him. The mother was interviewed by police but was not charged with any offence.
From around mid-2009 the changeovers for the child’s time with his father occurred at Suburb N police station.
In July 2009 there were a number of occasions where the mother did not permit the child to spend time with the father or participate in phone calls with him.
The matter first came before the Court on 31 August 2009, with the mother having commenced the proceedings in late June 2009.
There was a very high level of conflict and acrimony between the parents from July to December 2009 with each making allegations against the other. A number of incidents involved the police and as a result of one of them an Apprehended Violence Order was taken out against the mother for the protection of the father’s partner. This Order was made final on 9 November 2009. Neither of the parties was charged with any offence during this period.
Interim consent Orders were then made in this Court for the father to spend time with the child on Monday, Wednesday and Saturday from 10.00 am to 4.00 pm, with the changeover to continue at Suburb N police station until a contact centre became available.
The father spent time with the child pursuant to the interim Orders throughout September and October 2009, though there were a number of occasions where the father did not make himself available. On 10 October 2009 the father required the mother to collect the child from Suburb O police station rather than Suburb N. Following this occasion the mother did not make the child available to the father on two occasions as a result of the father’s behaviour and then on a number of occasions due to the child’s ill health.
The child was around this time diagnosed with febrile convulsions and, although he had three episodes of this condition, the convulsions subsequently resolved.
From 20 December 2009 until 15 March 2010 the mother did not make the child available to the father.
Further interim Orders were made on 15 March 2010 by consent, reducing the father’s time with the child to once a week, being each Saturday from 10.00 am to 4.00 pm, and alternate Sundays from 11.00 am to 5.00 pm. Previous interim Orders were also varied to provide for changeovers to occur at the E Contact Centre in Suburb A.
In February 2011 the father and his partner moved to Town I but the mother did not know of their exact address, up until the hearing.
In April 2011 the father sustained a serious injury to his back and neck in a work accident. From around this time there were numerous occasions when the child did not spend time with his father pursuant to the Orders due to the father not making himself available.
The father has since this time spent time with the child approximately once per month. The child has only spent overnight time with his father on one occasion as the mother has not permitted it.
On 9 June 2011 during the first day of the Less Adversarial Trial the father became angry and argumentative and walked out of Court.
In December 2011 the parents and other relevant people, such as the maternal grandparents and the father’s partner, were interviewed by a Family Consultant for the purposes of the preparation of a family report. At that time the mother told the Family Consultant that overnight stays between the child and his father should not commence until the child commenced school (beginning of 2014). The Family Consultant was concerned about the father’s parenting capacity and the mother’s emotional wellbeing if the child were to spend overnight time with his father and, accordingly, recommended psychiatric assessment of both parents.
Following a proposal put by the mother, the child spent overnight time with his father on 18 February 2012 in Sydney. The Family Consultant’s report was prepared on 27 February 2012 and released in early March 2012.
The parents were assessed by Dr P, a consultant psychiatrist, in May 2012. The father left the interview prior to its completion so the psychiatrist was unable to undertake an assessment as to any current risk of violence.
On 6 December 2012 the mother filed an Amended Initiating Application and on 9 January 2013 the father filed an Amended Response.
From April to August 2013 the father failed to attend on a number of occasions when the child was to spend time with him.
On 14 August 2013 the father’s partner gave birth to their child, Q.
The child lives with the mother at Suburb R, near Suburb N, in Western Sydney. The father lives on a property at Town S near Town I, in south west New South Wales.
The father has significant literacy problems and cannot read or write well.

Expert Evidence

A Family Consultant prepared a report of her assessment of the child and his parents. The consultant’s overall recommendations were that she had serious concerns about the father’s parenting capacity and, without a psychiatric assessment, could not make recommendations about the time that the child should spend with him. She also had concerns for the mother’s emotional well-being if the child were to spend overnight time with his father, particularly outside the metropolitan area without the use of a contact centre for changeover.
In light of the Family Consultant’s recommendations, the mother and father were assessed by a consultant psychiatrist, Dr P. He was of the opinion the father’s suitability to care for his son overnight required a comprehensive assessment as to his current risk to act in a violent manner, which he was unable to complete due to the father’s failure to complete the interview. The psychiatrist’s assessment of the mother was that there was no evidence of psychiatric illness.

The Family Consultant’s Evidence

The Family Consultant’s report was based on interviews with each of the parents, the mother’s daughter (14 years old at that time), the father’s partner and the maternal grandparents and observations of each of them with the child. She also had access to a large volume of subpoenaed documents, including from the Department of Community Services and Corrective Services, as well as the documents the parties had filed prior to the date of the assessment.
The interviews were conducted on 2 December 2011 and, at the time of the preparation of the report, the child was almost 4 years old. The father at that time was seeking similar orders to those which he sought at the commencement of the hearing, that is, for the child to spend time with him each alternate weekend from 4.00pm Friday to 5.00pm Sunday and half the school holidays.
The father had, at that stage, relocated to the Town I area and envisaged the child spending time with him at his home.
Whilst the mother, at that time, opposed the child spending overnight with the father, she acknowledged that the child had built up a relationship with his father and proposed that overnight time should start when the child commenced school. The mother was of the view that in the kindergarten year the child should spend time with his father each alternate weekend from after school Friday until Sunday afternoon, and when he entered year one, he should spend time with his father from after school Friday until before school on Monday.
So far as the proposal for overnight time between the child and his father was concerned, the mother told the Family Consultant that she was concerned about whether the father could care for the child on a day-to-day basis and that the child would be at least three hours away from her if any problems arose.
The mother told the Family Consultant that the father had spent 12 years in gaol for attempted murder and had the capacity for extreme violence. The mother also told the Family Consultant that she had experienced the father as a highly controlling person and believed he was still trying to control her.
The mother described the father as a person who would get angry and aggressive if he did not get what he wanted, lacked respect for rules and had been abusive and threatening towards her and the staff at the contact centre. The mother also described the father’s behaviour as erratic, irrational and threatening.
The mother said that, although she did not believe the father would ever intentionally hurt the child, she did not believe that he had any understanding of the emotional and developmental needs of young children.
The maternal grandparents presented to the Family Consultant as involved grandparents. Although they reported that when the child came home from spending time with his father he would be tired and unsettled and sometimes they were concerned about his behaviour, they had no problems with the child spending time with his father, but would feel more relaxed if the father were living in Sydney.
The father was interviewed by the Family Consultant with his partner, who presented as extremely supportive of the father and was observed at times to speak on his behalf. The father told the Family Consultant about a number of grievances that he had in relation to contact with the child and was concerned that the mother would leave the child with the maternal grandparents overnight while she worked but would not agree for him to have the child overnight. The father was concerned that because the child could not stay overnight with him the child had missed out on seeing the paternal grandmother, who lived in the country and was very ill. The father also said that the mother interfered with his telephone calls with the child and described having had to beg the mother to give him longer time to take the child on outings.
The child was not interviewed due to his age, but his interaction with various family members was observed. The child was described as excited to see his father, went straight up to him and, after hugging and greeting him, asked to go outside. The Family Consultant described the father and child enjoying kicking a ball around the room together and that the child demonstrated good kicking and catching skills. The child was also seen to be excited when he saw the father’s partner and at the end of the session appeared unhappy about having to say goodbye to them both but did not become distressed.
The child was described as playing well with his mother and becoming very excited.
The Family Consultant said that from the observations and interviews it was evident that the child was well cared for by the mother and supported by her parents. She said the mother presented as appropriately anxious and concerned about the child spending time with the father if the father’s behaviour was as the mother had described.
The Family Consultant said it was also evident from the interviews and observations that the child had developed a good relationship with his father and his partner and the child enjoyed spending time with his father. The Family Consultant said that ordinarily the situation would suggest that the father’s time with the child could graduate to one overnight and then two overnight stays.
However, the Family Consultant said the mother had raised serious issues of concern about the father’s psychological fitness from his alleged behaviour towards her which the Family Consultant felt were supported by records of his behaviour when he was an inmate. In this regard, the Family Consultant said that she had perused many documents from New South Wales Corrective Services and was concerned about the lack of remorse evident in the offence for which he served the lengthy term of imprisonment and about his behaviour in custody towards prison inmates and prison officers. The Family Consultant also referred in particular to memos written in March 2003 alerting staff that the father had a history of grooming staff and warning staff of his capacity for an emotionally manipulative relationship.
The Family Consultant was also concerned about the father’s volatility when he was interviewed for the Children’s and Parents Issues Assessment in August 2009, when the father became angry and vocal because the Family Consultant would not allow him to take the child out of the secure area and walked out in anger during his feedback session. She also referred to an event during the Less Adversarial Trial on 9 June 2011 when the father was observed to become angry and argumentative with the Judge when he perceived he was not going to get overnight time with the child on that day and walked out of Court claiming that he would discontinue the Court process and not see the child.
The Family Consultant had, as a result of these matters, serious concerns about the father’s parenting capacity, and could not make recommendations about time the child should spend with his father without a psychiatric assessment. She was also concerned for the mother’s emotional well-being if the child were to spend time with his father, particularly outside the metropolitan area.
Under cross-examination, the Family Consultant agreed that she had no training in relation to the likelihood for future violence or reoffending. She also agreed when questioned about the gaol records that some of the matters were historic and some were not serious.
The Family Consultant said that in circumstances where the psychiatrist had not made an assessment she could not make a recommendation about whether or not overnight contact should occur as her knowledge base and assessment time were limited. She said that she could not make such a decision at the time of interview and could not make one at time of cross-examination. The Family Consultant did, however, say that she would recommend that the parties not have direct contact with each other and that handover occur at a neutral place, such as at school, or through a third party.
The Family Consultant explained that her concerns about the father, which she felt needed further exploration by a psychiatrist, arose from his reported violence, threats and manipulation, which, if true, may have indicated a personality disorder. However, the Family Consultant confirmed that when she saw the father in December 2011, his interaction with the child was appropriate and, if there had been no incidents since that date, she did not see why overnight stays could not be gradually introduced. The Family Consultant felt that if the father had not shown aggression since this interview she had less concerns than she previously had. She said that children should experience parents who have different forms of interaction and that, in this case, the father was more physical and that children need physical interaction.
Two of the areas of concern for the Family Consultant had been allegations by the mother about the father’s behaviour at the contact centre and that he had masqueraded as her on a sex internet site. The Family Consultant felt that the mother’s anxiety was appropriate, but that if these allegations were not true then it was not appropriate anxiety. The Family Consultant had not seen any reports about the father’s behaviour as alleged in the documents subpoenaed from the contact centre.
Other areas of concern for the Family Consultant were the father’s angry behaviour at her first assessment and also at the Less Adversarial Trial. In the more recent interview for the Family Report, the Family Consultant felt that the father was trying to niggle her and was still angry, but not aggressive or threatening.
Although the mother had claimed to be concerned about the father’s parenting capacity when interviewed, which made her anxious, the Family Consultant had not seen anything in this case to suggest that the mother’s fears and anxieties may negatively impact upon her parenting.
When the Family Consultant was asked about the child becoming upset and telling his mother that he did not want to leave her when going to spend time with the father, she said that the child may sense the mother’s distress and this could be an attempt by the child to comfort the parent. The Family Consultant said that there was no long-term harm indicated from the child getting upset and telling his mother that he would miss her.
The Family Consultant’s evidence is relevant and helpful in a number of respects. Firstly, she gives independent evidence based on her expertise and observation of the nature of the interaction and relationship between the child and each of his parents. In summary, she concluded that the child was well cared for by the mother and supported by her parents and had also developed a good relationship with his father and the father’s partner and enjoyed spending time with his father. The Family Consultant said that ordinarily the situation would suggest that the father’s time with the child could include overnight time. She remained unchanged as to this evidence under cross-examination.
In my view, the Family Consultant’s concerns about the father’s behaviour were reduced following cross-examination. One particular area of concern was allegations made by the mother about the father’s behaviour at the contact centre. The Family Consultant said she had not seen any reports about this behaviour in the documents subpoenaed from the contact centre, nor were those documents admitted into evidence before me. The Family Consultant agreed under cross-examination that the concerns she held arising from documents subpoenaed from Corrective Services were in some cases historic and in others not serious. I attach little weight to the Family Consultant’s concerns about matters arising from the father’s offending in light of him having been granted parole at the first opportunity, the lack of offending in recent years and the Family Consultant’s lack of training or expertise in relation to future violence or re-offending.
The other area of concern for the Family Consultant related to the father’s volatility, which she said was demonstrated during the Children and Parents Issues Assessment in August 2009 when the father became angry and vocal and during the Less Adversarial trial when the father became angry and argumentative with the Judge. Under cross-examination the Family Consultant felt that the father more recently was still angry but was not aggressive or threatening. Ultimately, she confirmed that if there had been no incidents since December 2011, she did not see why overnight stays could not be gradually introduced.
I attach significant weight to those aspects of the Family Consultant’s evidence in respect of which she has appropriate expertise, remained unchanged under cross-examination and where her observations were supported by uncontradicted evidence. These matters include her observations about the nature of the interaction and relationship between the child and his parents and her final recommendation that there was no reason why overnight stays could not be gradually introduced if there had been no recent incidents.

Dr P’s report

Dr P, a consultant psychiatrist, carried out a psychiatric assessment on each of the parents. Dr P’s assessment of the mother was that he could not find any evidence of psychiatric illness.
The doctor did not complete his assessment of the father as when he attempted to elicit from the father information in relation to his past history, the father objected to the questions and walked out of the interview. The doctor indicated that shortly after the father walked out, the father’s partner came in and informed the doctor that the father had had enough and that questioning him in relation to his past behaviour was ridiculous.

The doctor was of the view that due to various concerns relating to the period the father was in custody, a comprehensive current assessment in relation to the father’s risk of violence is needed before a decision can be made in relation to the father’s potential suitability for his son spending time with him.
The psychiatrist’s recommendation was that, having regard to the father ceasing his interview in the manner he did, the current arrangements (for time between the child and his father) should be continued until a detailed psychiatric assessment and detailed psychological testing could be undertaken.
Under cross-examination, the psychiatrist said that he had never prepared reports for the Department of Corrective Services or for the purpose of parole. He also said that his form of assessment was a clinical assessment and that he did not apply any scales or use assessment tools to assist him. The doctor also agreed under cross-examination that he had no experience in assessing parenting capacity and had not provided reports in the Children’s Court. He said that he had only provided assessments of the impact of mental illness on parenting, but had not dealt with parenting in the absence of mental illness.
Although the doctor said that he was unable to complete the interview and therefore could not undertake the risk assessment, he answered some general questions in relation to the issue of risk. The doctor did not feel that there was any difference in the level of risk associated with the child spending time with his father at night as opposed to during the day and said that the risk relates more to the activities that are undertaken, rather than when they occur. He described the risk identified by the mother (relating to the mother’s concerns about the father’s aggression, history of having been very manipulative and verbally abusive) as rational and reasonable in the sense that they were not based on any psychiatric illness.
When questioned about the interview of the father the doctor said that prior to it, he would have given an explanation in “standard form”. He agreed that he used the language set out in his report, including expressions such as ‘the principles of confidentiality did not apply’. The psychiatrist said he did not assess whether the father understood that sort of language and could not remember specific discussions in relation to the father’s understanding.
When asked about the circumstances of the interview immediately before the father walked out, the doctor could only recall that the father’s past was raised as a topic and then the father left. The doctor recalled that the father objected to questions in relation to his past. The doctor described the father as polite and compliant and that he did not feel threatened by the father. The doctor said that the father was not rude or aggressive but simply objected to the questions and left. The doctor agreed that walking out, of itself, is not evidence of risk and agreed that walking out may have possibly been an indication of embarrassment and that, as he left, the father said the interview was ridiculous.
Dr P’s evidence, if accepted, is significant in that he expresses the view that any assessment of the father’s suitability to have the overnight care of his son would require a comprehensive assessment as to his current risk to act in a violent manner. However, under cross-examination the doctor conceded that there was no difference in the level of risk associated with the child spending time with his father at night as opposed to during the day.
I have some concerns about the doctor’s expertise in relation to the particular issue, given that he had not previously prepared reports for the Department of Corrective Services or for the purpose of parole and that he had no experience in assessing parenting capacity in the absence of mental illness.
The doctor agreed that any inference concerning the father’s propensity for violence cannot be drawn from the circumstances of the father leaving the assessment interview. The doctor described the father as polite and compliant and not rude or aggressive, and agreed that the walking out may have possibly been an indication of embarrassment.
Ultimately, the doctor’s opinion altered significantly under cross-examination, especially in relation to the absence of any additional risk associated with overnight as opposed to day only time with the father. Further, given the limitations in the assessment, and that there was ultimately little that the doctor was able to usefully comment upon, little weight is attached to his evidence.

The Areas Of Dispute

The father’s behaviour

Although the mother has effectively conceded in her proposed alternative orders at the conclusion of the hearing that the father’s behaviour did not currently greatly concern her, it is nonetheless a matter which has relevance to the timing of the commencement of, and extent of, overnight time with the father, which is still a matter of dispute between the parties.
In her case, the mother expressed concern about the father’s potential for violence and aggression in light of his criminal history, the safety of the child in light of the father’s irrational behaviour and the father’s lack of capacity to provide for the child’s needs on a day-to-day basis. The mother had also initially and throughout the hearing raised significant concerns that the father may retain the child after spending time with him. That concern appeared to be abandoned by the end of the hearing.
In her affidavit, the mother gives examples of incidents which demonstrate her position that the father is irrational, explosive and angry. In both her affidavit and oral evidence, the mother says that whilst she is not fearful that the child will be directly hurt by the father, the child may witness inappropriate behaviour by the father or be adversely affected by the father’s behaviour towards others.
In relation to the father’s violence generally, the mother says in her affidavit that the father was extremely violent towards her when she was in a relationship with him but does not give any examples of that violence. She does, however, give examples of threatening behaviour after the parties had separated, such as being threatened in relation to online chatting and being threatened on the phone when on a holiday in Queensland. She also says that she entered into the agreement in relation to the child on 27 April 2009 as the father threatened to cut her throat if she did not agree.
Examples of aggressive and irrational behaviour given by the mother are also mainly confined to 2009, soon after the parties’ separation, and include the father following her in his car and driving erratically in June 2009, and hitting the bonnet of the mother’s car when the child was inside the car in October 2009.
According to the mother’s affidavit, the written agreement reached at Suburb N Local Court on 30 June 2009 eventuated as a result of the domestic violence liaison police officer handing it to her. The mother says she signed it out of fear of what could happen after she left the Court if she did not sign it.
The mother says in her affidavit that she was threatened by and frightened of the father and for this reason the handovers occurred at a police station.
The mother says that she stopped allowing the child to have time with his father from July 2009 as she was concerned that he would retain the child and was still fearful of him.
The mother also says in her affidavit that when she was in Queensland the father and his partner used her login details and chatted with a person on-line, pretending to be her. Although the mother described the content as “extremely disgusting, vial (sic) and distressing” and says she has a copy of the text of the conversation, it is not annexed.
It is the father’s general position that it was the mother, not him, that was the aggressor in many of the incidents between the parties around the time of separation.
On 27 May 2009, the father alleged that the mother had followed his car, banged on the window and yelled at his partner whilst the child was in the car and the child became upset because of the mother’s behaviour. However, he says that the mother subsequently obtained an Apprehended Violence Order, with his consent, for her protection from him in relation to this incident.
The father also alleges that the mother physically assaulted him and verbally abused him and his partner, when the child was in their care, on 4 July 2009. He said he voice recorded the conversation and photographed the incident, but did not tender either as evidence, nor gave any account of the police taking any action in response to the incident.
In respect of the mother’s withholding of the child around the time of separation, it is the father’s evidence that the mother did so on 24 occasions from July 2009 to late August 2009. She then withheld the child a further 24 occasions between September and the end of 2009. From the start of 2010 to mid-March 2010, when the interim Orders were then changed, the father says the mother denied him a further 18 occasions of contact with the child.
I am not satisfied that the mother is genuinely fearful of the father or concerned that his behaviour may be detrimental to the child as she asserts for a number of reasons. Under cross-examination the mother appeared to take an inconsistent position in relation to the father’s behaviour, her fear of him and the impact his behaviour may have upon the child. At times she maintained that she thought it was in the child’s best interests to have no physical contact with his father due to the father’s behaviour and at other times she conceded that the relationship was important and the child appeared to enjoy his time with his father. Ultimately, the mother consented to the child having overnight time with the father.
Further, although the mother asserts that the father was extremely violent all through the relationship she does not give any example of that violence, nor is there any evidence of complaints to police or charges relating to this period.
There is no doubt that the relationship was extremely volatile after the parties’ separated, prior to the contact centre being utilised for changeovers. However, the majority of the incidents of alleged aggressive or erratic behaviour relate to the father attempting to arrange time with or to speak to his son and whenever the mother believed the father’s behaviour was concerning she would withhold the child from him.
It also appears that at times the parents are able to be cooperative with one another, even during periods that the mother asserts she is fearful of the father. For example, on a number of occasions when the mother said she was not prepared to allow the child to spend time with the father due to the father’s behaviour, she did allow video calls between the father and the child upon the father’s request. Also, upon her return from a holiday to Queensland, when she says the father was threatening her, the father met her and the child at the airport and drove them home and then stayed until early evening at her home to spend time with the child. Transcripts of voice messages from the father to the mother’s phone in October 2009 reveal the father at times using polite language and at one point thanking the mother for being fair (written as “faer”).
Although other text messages received from the father are quite demanding, the mother, in her responses, uses language indicating that she is well in control of the situation and does not indicate any level of fear. For example, in one text message she says:
I will not be changing my plans to run around after you. It’s your responsibility to have a car available on the days you have your son. Thank you.
So far as it is suggested by the mother that fears about the father’s violence related to his criminal history, there is no dispute that the mother was aware of the father’s background when she entered into a relationship with him.
It is of significance that the mother told the Family Consultant in December 2011 that overnight time should commence in just over a year and that it is the mother who proposed the single overnight time with the father on 18 February 2012 and agrees it went ahead without any difficulties.
It appears that the mother’s position changed following the release of the Family Consultant’s report and was reinforced by the father’s failure to complete the psychiatric assessment and his behaviour in Court on the first day of the Less Adversarial Trial. Most significant of all, however, is the fact that the mother in the course of these proceedings proposed an order providing for the child to have overnight time with the father. It is difficult to accept that she would propose such an order if she held genuine fears about the father.
In Court, whilst under cross-examination, the mother became quite tearful and requested arrangements be made for her to give her evidence remotely, which was arranged. This had not been requested in advance by her legal representatives. The mother said that her demeanour and request were based on her fears for her own safety due to the father’s presence in the courtroom, because of his past behaviour towards her and her family. However, during cross-examination of the mother by the father himself (albeit remotely via video-link), the mother showed no signs of concern and, to the contrary, was particularly assertive and at times almost aggressive in her replies to the father.
Although I am not satisfied that the mother herself is genuinely fearful of the father or is that concerned about the impact of his behaviour upon the child, I must still consider whether the father’s behaviour raises concerns about an unacceptable risk of harm in determining what orders are in the best interests of the child.
Overall, it was the mother’s evidence that the father has serious problems controlling his temper and becomes “explosive” when he does not get his own way. She gave further examples in this regard of the father walking out of Court, of the interview with Dr P and of road rage incidents. She accepted the father completed an anger management course in 2003 whilst incarcerated. Importantly, however, she conceded that there had been no incidents regarding the father’s behaviour since 2011, when the parties started using the contact centre.
As noted earlier in these reasons for Judgment, Dr P did not find the father to be rude or aggressive and did not feel threatened at all by the father. He drew the inference the father has a history of violence, and a violent tendency in the past, but was unable to make an assessment beyond this as to his current behaviour and risk of violence. He commented that it was “promising” that the father had received parole on first application and had not received any other convictions since his release in 2005, other than one breach of Apprehended Violence Order.
Dr P said there was a possibility of the father having a propensity to violence, and was concerned that a stressor the father may be potentially triggered by was the child. He commented upon the father’s caffeine consumption, which at 40 cups per day would inevitably lead to more irritability.
The Family Consultant observed the father as agitated when confined to playing with the child in the enclosed play area in late 2011, but formed the view that he did not pose any risk to the child in the given situation. She did not view the father’s behaviour as aggressive or threatening towards her; but that he was just angry that he was unable to have his way and take the child outside the designated play area.
The Family Consultant said that the father seemed to have a pattern of behaviour of walking out and turning away when faced with a difficult situation.
The father’s partner gave evidence of the father never getting angry or abusive, but generally walking away when he gets upset or angry. She said she had known the father to swear on occasion, but he was a lot more conscious when around children. She was encouraging him to get professional assistance to deal with his emotions.
The father’s own evidence was that he was a “violent person” when he went to gaol. However, it was his case that he is a changed man and he can now control his anger. He gave evidence and provided certificates as to his completion of anger management classes whilst in gaol and other rehabilitation programs to receive parole. He received parole on his first application and was released in 2005.
The father agreed he previously had had verbal outbursts when he felt he was not treated with respect. He says he now diverts his anger by using a punching bag or riding his motorbike. He says when he is embarrassed he now takes a breath and steps away from the situation.
He disagreed that he was angry in 2009, around the time of the parties’ separation. In fact, he denied being aggressive and threatening in a number of the incidents alleged by the mother to have occurred at around this time.
The father also denied being involved in any road rage incident in 2013, as the mother alleged the child had recently reported to her. He gave evidence that it would be inappropriate behaviour to get out of his car at traffic lights and yell at another driver, and he would not do this in front of a child.
In respect of his behaviour at interview with Dr P he said he was tense and angry; the doctor did not listen to what he was asking and he was not able to have anyone else in the room with him to assist him. He says he did not understand the process, felt it was unfair and biased, and was embarrassed when he did not understand the meaning of words the doctor had used. He conceded he did not make the doctor aware of his lack of understanding as he did not want to “stuff up” the single appointment that he had paid a lot of money for. When he was questioned about his father, a matter of great sensitivity for the father, he did not think it to be relevant and he walked out of the interview.
He agreed that his behaviour in walking out of Dr P’s interview, of walking out of the Family Consultant’s room, and being verbally abusive and also walking out of Court was inappropriate and that he needs assistance controlling his emotions. He said he had now made the connection between his behaviour and the delays arising in the Court proceedings.
The father gave evidence about seeing a psychologist in Town I for the last 12 months, once a month. These sessions he said are mainly to assist with his “gaol speech”, but he is also working on controlling his emotions in respect of unresolved issues, such as his father’s death. He says he is learning to take a step back and breathe in an angry situation, and to think before speaking. He says he moved away from Sydney to be away from the mother and he can now control himself.
The father became extremely emotional when cross-examined about his father’s death as it appears that he feels responsible for it, due to his offending, and asked for a short adjournment. An allegation then arose that the father had made a derogatory comment or a threat towards the maternal grandfather outside the courtroom. Leave was granted for the maternal grandfather to be called to give evidence in respect of this incident, and the maternal grandfather claimed that he made no eye contact with the father when the father had passed him and allegedly made the comment or threat. On the evidence before me, I cannot be satisfied that any comment the father may have made when passing the maternal grandfather outside the courtroom was directed at the maternal grandfather, and I also take into account the highly emotional state the father was in upon leaving the courtroom. I accept that he was highly agitated and distressed at that time, having been pressed for evidence regarding his father’s passing which he was not inclined to give.

Overall, as noted above, I am not satisfied that the mother genuinely fears the father’s behaviour at present. Further, I am satisfied that the father has difficulties controlling his behaviour and emotions at times and he has a pattern of walking out of situations in which he feels uncomfortable or pressured, which at times can be inappropriate. The father appears to have some unresolved issues which he is trying to address with a psychologist. Whilst it may have been of assistance to the Court to have the proper assessment of the father’s behaviour, I am not satisfied that the father’s behaviour at present is such that it warrants restricting an increase in the child’s time with the father, particularly as the father will be assisted by his partner at times the child is in his care.

The father’s parenting ability, including his level of literacy

The father’s parenting ability at present is somewhat untested. The child is spending time with the father on two consecutive days, twice per month in the Sydney area.
The mother gave evidence of the father’s lack of involvement in the care of the child when he was an infant and her current assessment is that the father only knows how to kick a football and buy things for the child. However, she did concede that the one overnight the child had spent with his father in February 2012, at her suggestion, went well.
There was also evidence that the father has proactively requested the mother provide him with medical information regarding the child, for example following the child’s hospitalisation in October 2009, and that the father had attended some of the child’s football games.
At the time of the hearing, the mother gave clear evidence that the father’s partner was “most capable” of looking after the child, though she was concerned that his partner may be occupied with her own baby and that much of the care of the child may be left to the father.
The father’s partner gave evidence that the father does not have any parenting difficulties and she trusts him entirely in caring for their son.
The Family Consultant’s report indicated she did have some concerns about the father’s parenting capacity, but said in oral evidence that they were not serious concerns and made some positive comments about the nature of the father’s interaction with the child.
I am of the view that there are significant deficits in the father’s parenting capacity.

Parties’ level of communication and cooperation

Around the time of separation, it appeared that the parties were initially somewhat cooperative, with the mother facilitating the father spending time with the child at her home on a daily basis for some months.
After this, at around the time the father formed a new relationship, it appears the parties’ level of cooperation significantly deteriorated and the parties’ conflict increased.
Although the parties agreed to changeovers taking place at a police station, allegations of incidents continued to be made by both parties.
Since the parties have utilised a contact centre for changeover, from March 2010, and certainly since 2011, there have been no incidents and it appears that the parties have been able to communicate via text message and be cooperative at a basic level regarding the child.
The father raised in his evidence that the mother had not allowed him access to the child’s medical information. The mother denied this and said she had informed the father at times the child was in unwell or requiring medical attention, such as at the time of his febrile seizures. She says she provided the father with copies of all medical paperwork, but did not hand over the child’s blue book. One exception conceded by the mother was her failure to notify the father of the child’s nose bleeds, which caused the father some concern when the child had a nose bleed while spending time with him.
Currently, the parties’ communicate via text message only. The mother says she cannot communicate with the father face-to-face and they are unable to discuss anything. Despite the father having difficulties with reading and writing, the mother says that she has never had a problem communicating with the father by text message in the past. She says his words and spelling do not make much sense to others but she is able to understand what he means. The father’s partner also sends text messages on his behalf.
Because the mother says that the parties are generally unable to communicate effectively and because of her purported fears of the father’s behaviour, the mother seeks sole parental responsibility for the child. Initially the father opposed this and wanted to be involved in decision-making, but later conceded that it may create conflict and stress upon the child, and that it was best for the mother to make decisions and keep him informed.
The Family Consultant recommended changeovers remain at a contact centre or be facilitated by third parties so that the parties not come face-to-face, to avoid any potential conflict.
I am satisfied that the physical contact between the parties should be reduced to a minimum to reduce the impact of their conflict upon the child. Whilst communication via text messages is not ideal, in this case, it has been utilised effectively by the parties and does reduce conflict between them, but is not an appropriate means for the parties to discuss matters of significance in relation to the child.

Submissions

Although in her application the mother opposed the child spending any overnight time with his father, and at some stages even contended that it would be in the child’s best interest not to spend any time with his father, ultimately she agreed to overnight time once every four weeks and that it should commence in November 2013. She also ultimately agreed that it was in the child’s best interest to experience weekend time with his father at the father’s residence in Town I.
Under the mother’s amended proposed orders the first few occasions of a single overnight stay should occur in the Sydney metropolitan area until Easter 2014. The mother then proposed that the time with the father be extended to a period from 5.00 pm Friday to 5.00 pm Sunday after Easter 2014, with this time continuing to occur in the Sydney metropolitan area until June 2014. She agreed that school holiday time commence in the September 2014 school holiday period and initially be for five days, increasing to seven days at the end of 2014, and to two weeks at the end of 2015.
Although there was very little difference between the proposal of the mother and the Independent Children’s Lawyer, essentially associated with the commencement of overnight time away from the Sydney metropolitan area and the timing of the introduction of further nights, the mother made extensive submissions about the credit of the father and his case generally. A number of these submissions focused on the failure of the father to include apparently important matters in his affidavit and discrepancies between his evidence and other witnesses. It was submitted that these matters demonstrate that the father was lying and that he also continues to intimidate the mother.
There was particular concern in the mother’s submissions that the father has been unreliable and has in fact only spent time with the child about once a month on average since his move to Town I, and it would be expected that this pattern would occur in the future. It was proposed that, to avoid disappointing to the child and to enable the mother to arrange her affairs, the orders should include a self-executing order which will suspend the child’s time with his father in the event that the father does not attend three consecutive periods of time under the orders.
The Independent Children’s Lawyer did not oppose the mother’s proposal that the child’s time with his father should occur once a month in light of the pattern of the father’s attendance over the last two years. However, the Independent Children’s Lawyer felt that it was important, having regard to all of the evidence, that the child begin to spend a week or more in the school holidays on the farm where the father lives as soon as possible. He submitted that if the school term time was to be reduced to one weekend per month then the progression to two consecutive night stays and more lengthy periods during school holidays should be accelerated.
Although it was not further developed, the Independent Children’s Lawyer submitted that Aboriginal culture is an issue in this case, as the father identifies as Aboriginal and the child would come to know and appreciate his Aboriginal culture through his relationship with his father.
Whether the father posed a risk of harm loomed large in the Independent Children’s Lawyer’s mind at the commencement of the hearing. However, at the completion of the evidence, it was submitted by the Independent Children’s Lawyer that, despite the mother’s allegations of her fears regarding the father and the father’s criminal history, the Court could not make a positive finding of risk on the Briginshaw standard (see Briginshaw v Briginshaw[1]).
[1] (1938) 60 CLR 336
The absence of a psychiatric assessment of the father required that a degree of caution be taken according to the Independent Children’s Lawyer. Notwithstanding this, in all of the circumstances, the Independent Children’s Lawyer submitted that there should be an increase in the father’s overnight time with the child.
The mother and the Independent Children’s Lawyer submitted that, having regard to the absence of conflict between the parties since 2011, the current arrangements, utilising the contact centre for changeovers, has been working well.
Although the father submitted that the child should spend overnight time with him every three weeks, this appeared to be a compromise position and the father ultimately agreed that he would accept the Court’s decision as to the appropriate orders in the best interest of the child. He agreed to remain in the Sydney metropolitan area for the first two occasions that the child spends overnight time with him but after that submitted it would be in the child’s best interests for the time together to be spent at his home in Town I.
Although the father had originally sought an order of joint parental responsibility at the completion of the hearing, he accepted that, in light of the difficulties the parties had had communicating in the past, it was in the child’s best interest for the mother only to have parental responsibility for the child. However, it was important to the father, who felt that it was also in the best interests of the child, for him to be consulted and informed about matters of importance in relation to the child.

The Law & Discussion

The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it, set out in section 60B, form the framework for the part of the Act dealing with parenting.
The objects are to ensure that the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
According to section 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

Primary considerations

The primary considerations (under s 60CC(2)) are:-
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
The meaning of the phrase “meaningful relationship” is not defined in the Act itself. The Full Court in McCall & Clark[2] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[3] and has also agreed with the reasoning of Bennett J in G & C[4]. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
[2] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[3] (2007) Fam LR 518
[4] [2006] FamCA 994
Bennett J discussed the terminology in G & C (supra) and said “the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).”
The parties’ proposals for the father to spend time, including overnight time, with the child, on a progressively increasing basis would enable the child to have a meaningful relationship with both parents. This is of benefit to the child as he appears to enjoy his time with his father and has an established relationship with his father, and the evidence supports an increase in his time. This position, by the conclusion of the hearing, was supported by the mother.
As to whether the father poses any risk of harm to the child in respect of his behaviour, there is no evidence that the father has to date, in any way, physically harmed the child or retained the child from the mother, as the mother alleges the father has threatened to do. It does appear that the child has, however, been exposed to the parties’ conflict, particularly around the time of separation in 2009/2010, when the child was still relatively young. The child was present during alleged incidents where the parties were verbally abusing each other, and there is evidence that the child became upset at these times.
Since the use of the contact centre for changeovers, and at least since 2011, there have been no incidents between the parties, as the parties have not come into face-to-face contact. It therefore appears that if the parties continue to utilise a contact centre for changeover and do not come face-to-face in the child’s presence, there will not be a risk of exposure to family violence.
Although the father’s behaviour when the child is in his care is still to some extent an unknown having regard to Dr P not being able to complete his assessment, I am not satisfied that this assessment is crucial. I am of the view, for the reasons set out in this decision, that the most significant issue in relation to the father’s behaviour concerns his own emotional regulation and I am not satisfied that he represents a risk to the child under the proposed orders. These orders provide for the father to continue attending upon a psychologist and the father’s partner will be present whilst the child is spending time with him.

Additional considerations

Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

The nature of the relationship of the child with each parent and other significant persons (subparagraph (b))

The Family Consultant’s evidence is that the child has developed good relationships with both sides of his family. He has a good strong relationship with his mother, and the maternal grandparents support the mother in caring for him well. The child is said to also have developed a good relationship with his father and the father’s partner, and was observed by the Family Consultant to enjoy spending time with them. The Family Consultant’s recommendation on this basis was for the father’s time with the child to gradually increase, including overnight time.
At the time of assessment, the child of the father and his current partner had not yet been born. It is important for the child to have a relationship with this sibling. Equally, the child’s relationship with his sister, the mother’s daughter, would be of importance to him.
The Family Consultant gave evidence that it is important for the child to spend time with each parent, as he is exposed to different forms of interaction with each of them. The father and child have a more physical interaction, and it was her view that this is of value to the child. The orders provide for overnight time to occur in a rural setting where the physical interaction will be better developed. The orders also provide for time between the child and his sibling to occur in the father’s home environment which is a more natural setting than time occurring during the day time only and in Sydney, as is currently the case.

The willingness and ability of each parent to facilitate and encourage a relationship with other parent (subparagraph (c))

Although the mother gave contradictory evidence about encouraging the relationship between the child and his father, it became apparent during the hearing that she agreed that the child should have a relationship with his father. In agreeing that the child could have overnight time with his father, when she was previously opposing it, the mother has demonstrated that she is willing to facilitate and encourage that relationship.

The likely effect of change in the child’s circumstances (subparagraph (d))

In light of the evidence about the interaction between the child and his father, the nature of their relationship and the observations by the Family Consultant of the child as robust and enjoying physical activities, increased time with the father, including overnight time in a rural setting, would be a positive change in my view for the child. There is evidence that the child has enjoyed activities such as attending a horse show with his father and that he has expressed a keen desire to stay at the farm where his father lives.
Although there was some evidence from the mother to the effect that the child becomes upset upon separation, the Family Consultant’s evidence was to the effect that this behaviour may relate more to the child sensing the mother’s anxiety and seeking to comfort her rather than the child being distressed by the separation itself. As the proposed orders involve a separation from the mother overnight for the first time, it is prudent that they contain a proposal that the first two overnight visits occur in Sydney prior to them occurring outside the metropolitan area.

Practical difficulty and expense (subparagraph (e))

It is a three hour drive between Town I where the father lives and the mother’s home or the contact centre in Sydney. Both parents say they have financial difficulties with the other parties’ proposal in respect of changeover. The mother says she cannot afford to travel to a midway point for changeover and the father says he cannot afford to travel to Sydney on a regular basis. The mother seeks that changeovers remain at the contact centre in Sydney, and the Family Consultant supports the use of a contact centre in light of the parties’ history of conflict when face-to-face.

Although the father acknowledges that he was the parent who moved his home away from the child’s home, he says he did this for the purpose of obtaining full time work, rather than to be further away from his son. The father’s application was that he wanted to see the child every second weekend but he could not afford or practically manage this as it included bringing his other child with him on each occasion that he travels and there were other costs associated with spending time in Sydney. The father agrees to the child spending time with him every three or four weeks, rather than each fortnight, as a compromise recognising that there are practical difficulties and expenses associated with the child spending more frequent time with him.
The orders have been framed to recognise that the impact of the practical difficulties and expense is a burden that should be met by both parents so that the child can have the advantage of time with his father. Firstly, they provide for more lengthy time in the school holidays but less frequent time during school term. Secondly, changeovers are to occur at Suburb G, which is closer to the father, as soon as this can be accommodated by the contact centre there, rather than at Suburb A.

The capacity of parents and any other person to provide for needs of child, including emotional and intellectual needs (subparagraph (f))

The capacity of the father to provide for the needs of the child, especially if the child were to spend time with him overnight, was another matter that was of some significance at the commencement of the hearing. However, although the mother made some general complaints about the father’s practical parenting skills, there was no particular evidence before the Court about these issues. It seems to me that most of the concerns that the mother has relate to his alleged behaviour, rather than a lack of practical skills or understanding.
There is some evidence to suggest that both parents have at times shown inadequacies in their capacity to meet the child’s needs, such as exposing him at times, especially in the early days after their separation, to very high levels of conflict. There was also some specific evidence relating to the mother allowing the child to play with an inappropriate electronic game, not suitable for young children, and the father envisaging the child at a very young age riding a motorbike, which was in my view, although common in some rural areas, is also age-inappropriate and potentially dangerous.
Overall, however, especially in light of the Family Consultant’s evidence and Dr P’s evidence to the effect that there are no additional skills required for overnight time, both parents appear to have at least a satisfactory capacity to meet the child’s needs.

Aboriginal heritage (subparagraph (h))

The child is of Aboriginal heritage, his father having lived for a time in an Aboriginal community in Town T and having had some exposure to and enjoyment of aspects of Aboriginal culture. The father says that he has been limited in developing the child’s enjoyment of his Aboriginal culture due to the restricted periods of time that the child has spent with him, and that he intends, if the orders provide for more extensive time, developing this important aspect of the child’s life. The orders proposed will support this consideration.

The attitude towards the child and responsibilities of parenthood (subparagraph (i))

The mother has clearly been a responsible parent having had the primary care of the child for most of his life. The father has consistently sought to spend time with the child and has also paid child support, though there have been times when he has been in arrears.
It appears that the father has also sought to be involved further in decisions in relation to the child, but has until recently had difficulty understanding the impact of his own behaviour on participating more fully in decisions about the child.
As to the father’s reliability in respect of spending time with the child, the mother says that in the past the father has not been reliable and has not attended changeovers on occasion without notifying her, or has changed the location for changeover. There was evidence from both parties that the father has missed a large number of scheduled contact visits, especially since moving to Town I in February 2011 and since sustaining back and neck injuries in April 2011.
In reality, the father has managed to arrange his affairs so that the child spent time with him approximately monthly in the last couple of years. If orders were made for this regime to continue, as proposed by the Independent Children’s Lawyer, this would appear manageable for the father, and thereby avoid disappointment for the child and inconveniencing the mother with last minute changes to the child’s arrangements.

Family violence (subparagraphs (j) and (k))

There have been allegations made by both parties against the other of conduct which would amount to family violence. It has clearly been a volatile relationship and, at times, there have been Apprehended Violence Orders in place to protect the mother from the father and the father’s partner from the mother. There are no current Apprehended Violence orders in place. For the reasons I have given in this Judgment, I am not satisfied that the mother currently holds any fears in relation to the father’s conduct, or if she does hold such fears, in my view, they are unfounded. The relationship between the parties and allegations of violent and threatening conduct have diminished since the parties have utilised a contact centre for changeover and there is no evidence to suggest that the child has been harmed by exposure to family violence for a number of years.
In light of the evidence concerning the relationship and conduct of the parties over the years since they have been separated, I am of the view that it is in the best interests of the child for changeover to continue at a contact centre.

The outcome least likely to lead to the institution of further proceedings (subparagraph (l))

The orders that are least likely to lead to the institution of further proceedings are those which regulate parenting matters for this child to meet his needs a long way into the future.
So far as the father is concerned, it appears that it was important to him for his grievances in relation to the mother facilitating him spending time with the child to have been aired in Court. It appears that the Court process itself was helpful to him as he came to a greater understanding of the impact of his own behaviour upon the progress of the proceedings. He also appears to have understood the importance of continuing to work on the regulation of his own emotions to best meet the needs of his child.
The father ultimately submitted that he would accept whatever decision the Court made, especially as in the course of the hearing the mother did consent to the child spending overnight time with him.
It also appeared that the proceedings led to the mother proposing alternative orders, many details of which were acceptable to both parties. It is my view that in these circumstances it is unlikely that there will be further proceedings in this matter once final orders have been made.

Parental responsibility

Unless the Court makes an order changing the statutory conferral of joint parental responsibility, section 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
In this matter, the mother seeks an order for sole parental responsibility. The father did not seek an order in his Response but under cross-examination indicated he did seek the Court make an order in respect of parental responsibility. Initially the father sought equal shared parental responsibility, but then conceded it would be best, in light of the parties’ conflict, for the mother to have sole parental responsibility so long as he was informed of major decisions she makes regarding the child.
Where the Court is to determine parental responsibility, the starting point is section 61DA. This section provides that 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. The presumption does not apply if there are reasonable grounds to believe that a parent, or person who lives with a parent, has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
In this case, there are allegations of family violence during the relationship made by both parties. The mother alleges that the father made various verbal threats and was seriously violent towards her, but does not provide any actual examples of how he allegedly physically abused her. The father alleges the mother physically assaulted her on one occasion and was verbally abusive on a number of occasions.
Family violence is broadly defined under the Act. I am satisfied that the parties’ relationship was a volatile one and therefore the presumption does not apply. Further, I am satisfied that whilst the parties appear to be able to communicate somewhat effectively by text message at present, this would not be sufficient for them to properly exercise their parental responsibilities in respect of jointly making decisions regarding the long-term welfare of the child. Also, the father has agreed to the mother having sole parental responsibility.
Accordingly, I will make an order for the mother to have sole parental responsibility for the child, but require the mother to keep the father fully informed of all major decisions she makes regarding the child’s health, education and general wellbeing.

Time the father is to spend with the child

As I have found that the mother is to have sole parental responsibility for the child, I need not consider the statutory obligations arising from s 65DAA of the Act.
In light of the agreement reached as to overnight time, the only matter for me to determine is when and with what frequency the overnight time should commence, where it should occur and what amount of time the child should spend in the school holidays with his father.
Both parents gave evidence of financial difficulties involved in the other parties’ proposal. The mother said she would not be able to afford travelling to a mid-way point for changeover and, in any event, sought that changeovers remain at a contact centre. The father said that he could not afford to continue the current arrangements in respect of financing travel to Sydney on a regular basis and in respect of supervised changeovers.
In reality, the father was unable to manage attending contact visits more than about every third week or monthly. The Independent Children’s Lawyer’s proposal that the father’s time be reduced to monthly during school terms, bringing the overnight and holiday time forward and removing the requirement that the father spend contact visits in Sydney, in my view best meets the best interests of the child.
Having regard to the number of occasions the father has forfeited the child’s scheduled time with him in the last few years, it also seems appropriate to include a self-executing order, as proposed by the Independent Children’s Lawyer, for the father’s contact with the child to be suspended in the event the father fails to attend on three consecutive occasions. Such an order should provide the father with an incentive to ensure that he makes arrangements so the child can spend time with him and he does not disappoint the child.
Further, I will make orders providing that the parties continue changeovers at the E Contact Centre in Suburb A until the D Contact Centre becomes available to facilitate supervised changeovers. Moving the changeover point to Suburb G will alleviate some of the time and expenses involved in the father’s travel to Sydney to collect and return the child.

Conclusion

Having regard to all of the considerations in relation to the best interests of the child, I will make orders predominantly in accordance with those proposed by the Independent Children’s Lawyer. Having been satisfied that the father does not present an unacceptable risk of harm to the child, I am satisfied that it is in this child’s best interests for his relationship with his father to be promoted by increasing the current time to include overnight time, which will reasonably soon not be restricted to the Sydney metropolitan area.
I am also satisfied that the increase in the father’s time occurring at the father’s home will be a positive experience for the child and will develop the child’s relationship with his sibling. I am also satisfied that the father has the capacity to meet the child’s needs during this time and that the orders will provide an opportunity to promote the child’s right to enjoy his Aboriginal culture.
Accordingly, the orders that I make are as set out at the forefront of these reasons for Judgment.

I certify that the preceding two hundred and eight (208) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 31 January 2014.

Legal Associate:

Date: 31 January 2014

[2014] FamCA 34

31 January 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness

Remedies