Rouco & Secada

FEDERAL CIRCUIT COURT OF AUSTRALIA
Rouco & Secada [2021] FCCA 1200

File number(s): DGC 719 of 2018

Judgment of: JUDGE RIETHMULLER

Date of judgment: 31 May 2021

Catchwords: FAMILY LAW – Parental responsibility –spend time arrangements – family violence allegations – intervention order – COVID-19 restriction breaches – child’s medical needs

Legislation:
Family Law Act 1975 (Cth), s. 60CC

Migration Regulations 1994 (Cth), r. 820.221

Cases cited: Re Andrew [1996] FamCA 43

Number of paragraphs: 223

Date of last submissions: 8 September 2020

Date of hearing: 24, 25 and 26 August and 3, 4, 7 and 8 September 2020

Place: Melbourne (via Microsoft Teams)

Solicitor for the Applicant: Hartleys Lawyers

Counsel for the Applicant: Ms Dosanjh

Solicitor for the Respondent: Romer Maud Family Lawyers

Counsel for the Respondent: Ms Healey

Solicitor for the Independent Children's Lawyer: Wilkinson & Associates

Counsel for the Independent Children's Lawyer: Ms Dunlop
ORDERS

DGC 719 of 2018

BETWEEN:
MR ROUCO

Applicant

AND:
MS SECADA

Respondent

ORDER MADE BY:

JUDGE RIETHMULLER

DATE OF ORDER:

31 MAY 2021

THE COURT ORDERS THAT:
1.The Respondent Mother (‘mother’) have sole parental responsibility for the child, X born in 2014 (“the child”) with respect of all major long-term issues, save that the mother shall, prior to making a decision about any such issue:
(a)use her best endeavours to advise the father in writing of the decision to be made;
(b)seek the father’s written response in relation thereto;
(c)consider with respect to the best interests of the child, any such response, prior to making any decision; and
(d)advise the father in writing as soon as reasonably practicable of her ultimate decision.

2.The child live with the mother.
3.The child spend time and communicate with the Applicant Father (‘father’) as follows:
(a)During school terms, each alternate weekend commencing at the conclusion of school or 3:30pm Friday, to the commencement of school 9.00am Monday, or until 9.00am Tuesday, should that Monday be a public holiday or curriculum day.
(b)In the event the father is working on a Friday night, the Orders set out in Order 3(a) herein be subject to the following:
(i)The father’s spend time commence on Saturday at 11.00am;
(ii)In the event the father is working both Friday and Saturday, spend time commence on Sunday at 11.00am; and
(iii)The father notify the mother as soon as he is aware of his working hours.

(c)The father must ensure that the child is no further than 30 minutes’ drive from the child’s school on the Sunday night that she spends in the father’s care. If this is not possible the father must return the child to her mother’s care by 4.00pm Sunday before the commencement of the school week.
(d)By Skype video on Wednesdays and Fridays between 4.30pm to 5.00pm, or as otherwise agreed in writing.
(e)For half of all term school holidays the first half in odd numbered years with time commencing at the conclusion of school on the last day of school term and concluding at 12pm on the middle Saturday and for the second half in even numbered years with time commencing on the middle Saturday at 12pm and concluding at 4:00pm on the Sunday prior to the resumption of school term.
(f)For half the long summer holiday period on a week about basis until the child turns 8 years of age, to commence the first week in even numbered years and the second week in odd numbered years and so on, with the child to be back in the mother’s care at least two days before the school year commences. After the child turns 8, and when the time is half/half, the father to have the first half in even numbered years and the second half in odd numbered years, unless otherwise agreed in writing. The child to be back in the mother’s care two full days before the commencement of the school year.
(g)During Easter from 4.00pm on Good Friday until 4pm on Easter Sunday, in every odd numbered year.
(h)Unless the child is already in the father’s care, from 5.00pm the Saturday before Father’s Day until 5pm Father’s Day.
(i)On the father’s birthday, unless the child is already in the father’s care, from after school until 5.30pm. If the father’s birthday falls on a non-school day and the child is not in his care from 10.00am-2.00pm, unless otherwise agreed in writing between the parties.

4.All spend time pursuant to Order 3 herein be suspended upon any official announcements made by the Victorian Government with respect to COVID-19 related lock down measures where by the child should remain in the mother’s care.
5.If the mother’s birthday falls during a period that the child is spending with the father, then the father deliver the child to the mother at 4.00pm the day before the mother’s birthday until 4.00pm on her birthday.
6.If the father’s birthday falls during a period that the child is spending with the mother, then the mother deliver the child to the father at 4.00pm the day before the father’s birthday until 4.00pm on his birthday.
7.If Mother’s Day falls on a weekend when the child is spending time with the father, that the father return the child to the mother at 4pm the day before Mother’s Day and collect her at 4.00pm on Mother’s Day.
8.If Father’s Day falls on a weekend when the child is spending time with the mother, that the mother return the child to the father at 4pm the day before Father’s Day and collect her at 4.00pm on Father’s Day.
9.In the event the father is not able to deliver the child to school on time on a day the child would normally attend school, the father to return the child to the mother at 6:30pm on the day prior.
10.All changeovers that do not occur at the child’s school:
(a)Take place at B Shopping Centre, provided that they can be facilitated by the father’s mother, sister or brother-in-law in the absence of the father; or
(b)At the contact centre closest to the residence of the mother; or
(c)As agreed in writing by the parties.

11.Both parties do all acts and things and sign all such documents and authorities to enable both parents:
(a)To communicate with all medical professionals treating the child including any allied health workers.
(b)Obtain all notices, school reports, photographs from any school attended by the child that a parent would usually receive.

12.Each of the parties ensure they follow all lawful directions of any medical practitioners treating the child.
13.Each of the parties inform the other parent as soon as possible of any medical emergency, serious illness or injury suffered by the child as soon as practicable including the details of any medical practitioner/facility treating the child.
14.If the child becomes unwell in the father’s care, he notify the mother immediately and should the child require medical intervention, that the father return the child to the mother’s care immediately.
15.Each of the parties provide their current address, email and contact numbers forthwith to the other and advise of any changes within 24 hours of such a change and must advise the other of the people living in their home.
16.The parties ensure that the child travels in an approved safety seat/restraint during any time the child travels in a car.
17.The parties and their agents be restrained by injunction from denigrating the other parent or their family to the child or in the child’s hearing and or from permitting anyone else from doing so or discussing these proceedings, showing the child documents filed in these proceedings or discussing any reports prepared in these proceedings with the child, in the child’s presence or hearing or permitting anyone else from doing so.
18.Each party advise the other party informed of the address of any residence the child spends the night, if not the address of the party.
19.The Father must ensure the child is no further than 30 minutes’ drive from her school on the Sunday night she spends time in the Father’s care.
20.In the event either party is late taking the child to school or the child does not attend school they forthwith notify the other party and in the event the child is absent for one or more day they obtain a medical certificate is to be provided describing the child’s diagnoses, prognoses and confirmation that time off school was required to recuperate.
21.The parties use the My Family Wizard App for all communication relating to the child.
22.The parties are restrained by injunction from having a blood alcohol level of .05 while the child is in their care or being under the influence of illicit drugs.
23.Both parents provide 14 days written notice of any proposed interstate holiday with the child, including details of the flights, accommodation, planned itinerary and any other people who will be going on the trip.
24.The parties are hereby restrained by injunction, by themselves their servants and agents from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other or any
member of their household in the presence or hearing of the Child, or from permitting any other person so to do; and
(b)discussing any issues in relation to court proceedings to, with or in the presence or hearing any of the Child; and involving any of the Child in any form of dispute between the parties or otherwise; and ‘
(c)physically disciplining or threatening physical discipline of any of the Child; and
(d)exposing the Child to any family violence; and
(e)filming, videoing or otherwise recording the child or the other parent at changeovers by any means nor cause or permit another person to so record a changeover.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
REASONS FOR JUDGMENT
JUDGE RIETHMULLER:

This case concerns parenting arrangements for the child of the parties, X, born in 2014 who is now 6 years old and lives with the mother. The parties are in dispute both as to parental responsibility and spend time arrangements for the father.
There is a high level of conflict between the parties, including allegations against the father of significant family violence and harm during the relationship, as well as post separation. The father denies post separation family violence and alleges that the mother is unwilling to facilitate a continuing relationship between him and the child.
The ambit of the dispute changed significantly during the span of what turned into a lengthy final hearing. The orders sought by the applicant mother and Independent Children’s Lawyer (‘ICL’) at the beginning of the final hearing, were to the effect that the father spend time with the child each alternate weekend, from after school on Friday to either Sunday night or Monday morning, and in week two, from 3.30pm until 5.30pm on Wednesday evenings (Monday evenings were originally floated by the Father, but the mother sought Wednesday evenings).
By the end of the hearing, the ICL sought orders for the father to only have professionally supervised time, and provided an amended set of orders sought. Counsel for the mother indicated that her position shared that of the ICL’s (later saying it was not opposed), but did not provide a revised set of orders to reflect those changes.
BACKGROUND
The applicant father was born in 1986 (now 35 years old) and works as a tradesperson. The respondent mother was born in 1979 (now 42 years old). The parties commenced a relationship in 2013 and cohabitation in 2014. They were married in 2014 and had X that year. The following year, in late 2015, X was diagnosed with an illness. On the mother’s case the parties separated in 2017, and on the father’s case they separated in October 2016.
Between separation and mid-2017, X lived with the mother, spending time with the father as agreed between the parties. The mother says she withdrew her spousal visa sponsorship for the father in October 2016 ‘due to family violence, infidelity and lies’ by him. The mother says that during this period both she and the child suffered ‘greatly’ from family violence at the hands of the father in the home.
In early 2017 the father was removed from the home by police intervention. A parenting plan was agreed between the parties on 28 February 2017 whereby the paternal grandparents and aunt would supervise the father’s time with the child. In early 2017 the father was charged with, and found guilty of offences against the mother.
In approximately mid-2017 the father commenced a relationship with a new partner. The father says that around this time the mother no longer agreed for the father to spend time with the child.
In late 2017 the parties were told by a paediatrician that X was in recovery. The mother alleges an incident occurred in the hospital car park (discussed below). The mother says it was at this time the parties separated on a final basis.
The father recommenced spending time with the child in November 2017, by agreement between the parties. At this time the mother relocated with X to a new home in the same suburb as the previous family home.
The mother says the father was able to spend time with the child pursuant to the parenting plan, however, she says that the father over-held the child on several occasions and in response, she then ceased the father’s time with X. The mother says that at this time the father was displaying aggressive behaviour and she made an application for an Intervention Order extension in early 2018.
The father initiated these proceedings on 5 March 2018.
Father’s Application
The father says (at page 6 of the Outline filed 19 August 2020) that he initiated the proceedings due to the “Mother’s unwillingness to facilitate [his] time” with X. He placed emphasis in his application on his relationship with the child and how the child will benefit from having a meaningful relationship with him.
The father seeks equal shared parental responsibility of X and initially sought that the child spend time with him on a fortnightly basis, in week one (of a fortnightly cycle) from Sunday until school on Tuesday and in week two from Saturday afternoon to Tuesday morning (see Outline of Case filed 19 August 2020). At the end of the trial his application changed to seeking time from Friday afternoon to Monday morning in week one and in the second week overnights on Mondays: see page 2 of the Transcript dated 8 September 2020. He seeks approximately half of school holiday time, as well as time on special occasions. The father seeks changeover to occur at a supermarket at B Shopping Centre. He seeks to communicate with the child via messaging apps twice a week for a duration of 30 minutes.
In his original Outline filed, the father also sought that the mother be restrained by injunction from raising the child in her faith, however, during the proceedings he withdrew this application.
The father’s case, put simply, is that he has attempted to participate in the child’s life and that the mother has not facilitated or cooperated with that: see paragraph 45 page 52 of Transcript dated 25 August 2020.
The solicitor for the father (the father did not choose to be represented by Counsel at trial, despite receiving a grant of legal aid) confirmed that the father was seeking equal shared parental responsibility for X. In the alternative, the solicitor for the father indicated he sought an order for consultation in decision-making, that is, if the parties do not agree on a decision, that the mother should have the power to make the decision.
In cross-examination, the father’s position on the alternate Wednesday night in week two proposal made by the mother (a few days prior to the hearing) was that a two hour window was not enough when considering traffic; he said if the time was overnight, he’d have time to make a nice meal, talk to X and allow her to relax, as well as read to her for story time. The father said the reason he wants to make the time overnight is to be a part of X’s school life. When asked what the father would seek in the event overnight time was not granted, the father said that from 3.30pm to 6.30pm one evening a week in the second week cycle would be satisfactory.
It was submitted that the father lives ten minutes away from the mother, has flexible work arrangements and is not presently in a relationship. This was not accepted by the mother who believed that he was in a relationship with a woman who lives some distance away.
The father’s solicitor framed the mother’s proposal for spend time arrangements with the father to in effect be a ‘significant reduction’ to just ‘Monday dinner’ (both Monday nights and Wednesdays were raised by the parties during the course of the hearing), and that this would not be quality time for the child and father, as it would involve a pick up from school, dinner, maybe a bath and then a drop off. It was argued that this wouldn’t be meaningful time.
The father indicated that he presently lives 10 minutes distance from X’s school but that if he moves 30 kilometres away he is content to reduce time to the Monday evening after school.
The other significant issue in this matter related to medical decision-making for the child, who has a history of an illness. The father’s position developed to one where he accepts that if he doesn’t reach agreement with the mother, in relation to the child’s health, he is prepared for her to make the final decision. The father’s solicitor clarified that he is not seeking joint decision making, just the opportunity to give input.
The solicitor for the father stated on day two of the trial that she did not seek to rely upon any of his Affidavit material in the Court Book that was filed, only the Family Report: see page 10 of the Transcript on 26 August 2020.
In closing remarks the father’s solicitor acknowledged that the parties “don’t have the best communication… that it might not be perfect” but that they’re “both willing to work on it and it will eventually work”: see page 3 of the Transcript dated 8 September 2020.
Mother’s Application
The mother’s Outline of Case places emphasis on protecting the child from exposure to family violence and submits that the father struggles to be child focused, having historically prioritised work. The mother says that the father cannot provide for the emotional, financial and intellectual needs of the child: see paragraph [35] of the Outline filed 19 November 2020.
The mother also sets out the father has previously over-held the child, without giving her information about the child’s whereabouts and had denied communication between her and child: see paragraph [24] of the Outline filed on 19 November 2019. She submits that she is the primary carer of X and the child is settled with her, whereas the father is unsettled and unstable in his accommodation: see paragraph [28] of the Outline filed on 19 November 2019.
The mother seeks sole parental responsibility for the child and that the child live with her. She submits the presumption of equal shared parental responsibility is rebutted by significant family violence by the father.
At the outset of the hearing the mother proposed the father spend time with X from Friday afternoon to Sunday afternoon each alternate weekend during school terms. The mother amended her position early in the proceedings to Friday afternoon to the commencement of school on Mondays, on the proviso the Father would commit to getting the child to school on time.

Early in the hearing the mother opposed overnights in the alternative week but offered time for a meal in the alternate week on Wednesdays between 3.30pm and 5.30pm. The father confirmed in oral evidence he would like that and could make work arrangements to accommodate those times: see pages 33-34 of Transcript dated 25 August 2020. Similar to the father, the mother proposed the child spend one half of holiday periods with the father and that there be an arrangement for special occasions. The mother sought changeover occur at a supermarket at B shopping centre, save for when the father collects the child from school on Fridays during school terms. She proposes the father communicate with the child by messenger twice per week for 15 minutes.
By the end of the hearing the mother sought that the father’s time be supervised due to a lack of confidence in the father’s ability to protect the child from exposure to COVID-19 (due to an alleged contravention of the Stage 4 restrictions). The mother proposed the father pay for a professional supervisor, or, in the event that spend time arrangements be ordered, changeover occur at a contact centre, where the parties would not have to come into contact, due to the high conflict between the parties: see pages 3 – 4 of Transcript on 8 September 2020. The mother also sought to restrain the father by injunction from travelling overseas with the child.
Counsel argued that the family violence perpetrated by the father is significant, has been perpetrated against the mother, but also in the presence of the child, that the father shows a lack of insight and support. Counsel puts the mother’s case for sole parental responsibility not only on the basis of the inability of the parties to agree, but also on the basis of anxiety on the part of the mother concerning the child (with respect to the father), which is likely to adversely impact that parent’s care giving capacity and ability (relying generally on Re Andrew [1996] FamCA 43).
Unfortunately the mother’s Counsel was unable to articulate what orders she was ultimately seeking when making her final address, despite prompting by Counsel for the ICL (see T311.34).
Independent Children’s Lawyer
The ICL’s position also changed during the hearing from that taken at the outset of the case, based upon the documents filed prior to the hearing.
In the Outline filed on 21 August 2020 the ICL set out that the mother’s chronology was accepted by the ICL. The ICL submitted that the presumption of equal shared parental responsibility was rebutted and sought orders for the mother to have sole parental responsibility (together with seeking the father’s response and considering it in her decision making).
At the outset of the hearing the ICL sought orders that the child spend time with the father each alternate weekend from the conclusion of school on Friday to the commencement of school on Mondays. The ICL also sought orders for the parties to communicate with each other by email only, unless in an emergency.
After both parties had finished giving evidence, Counsel for the ICL submitted that due to the highly conflictual nature of the case, with the child squarely in the middle, the ICL’s position in the matter had changed. The ICL said that due to the “lack of insight by the father”, and subject to the family consultant’s evidence, the ICL would be pressing for supervised time between the father and child: see pages 218 – 219 of Transcript dated 7 September 2020.
On the final day of the hearing, the ICL indicated she still sought orders for sole parental responsibility for the mother with respect to education and medical decisions but, changed her spend time proposal to one that the father’s time with the child be supervised by a professional supervisor and further that the parties engage in reportable therapeutic counselling: see page 4 of the Transcript dated 8 September 2020. She further added in closing submissions that she would seek, with respect to the father attending the child’s medical appointments, an order to allow him to find out information without attending appointments, given the high levels of parental conflict.
In closing submissions the ICL put that this matter is about weighing up the child benefiting from a meaningful relationship with both parents, versus being able to protect the child from any psychological harm from either of the parents or family violence.
In a final minute of orders proposed by the Counsel at the end of proceedings, the ICL sought orders for sole parental responsibility for the mother, with the caveat the mother should advise the father in writing of her decisions, seek his response and consider it in making decisions. The ICL also recommended the parties attend upon Ms C for reportable therapeutic family counselling, and that a report be prepared with consideration addressing the mother’s anxiety, the father’s lack of insight into anger issues, his lack of responsibility in relation to family violence during the relationship; and communication between the parties. The ICL recommended spend time arrangements reflect any recommendations by the family consultant.
Procedural Considerations
Both parties sought to rely upon the Family Report dated 14 October 2019 and the psychiatric assessments made by Dr D (although the parties did not seek to cross examine the psychiatrist). Both these psychiatric documents were marked ‘Exhibit 1’.
The parties all varied the orders they sought during proceedings, largely, it appears, as the father become more realistic and the ICL and mother had increasingly clear views of the father and mother in evidence.
The approach of the parties to this litigation did little to limit the issues or assist the court or ICL in marshalling or analysing the evidence, and resulted in a far longer trial than would have been expected. In the circumstances I have attempted to address the evidence and issues that appeared to be central to the parties as best I can, given the way in which the case was presented.
ISSUES
COVID-19 restrictions and medical requirements
During the course of the hearing there were several allegations against the father that he had acted in breach of the stage four COVID-19 restrictions in effect in Victoria in 2020, while the child was in his care. On the mother’s case this was of great concern due to the vulnerability of the child to infection, having had a history of an illness, and consequently an increased risk with any exposure to the virus.
The allegations of the father’s breaches of restrictions were with respect to his family members visiting his residence, while the child was in his care.
In cross-examination the father confirmed the last time X saw her paternal grandfather was March 2020 and the paternal grandmother two weeks prior to the hearing. The father said he lives in a separate household to the paternal grandmother but that she comes and visits him and his daughter, X when X is with him, and that she has played a big role in X life.
During cross-examination of the father about breaches of COVID-19 restrictions (by the paternal grandmother visiting his household to see X during that time), he confirmed the paternal grandmother did visit the household, “unexpectedly” and “unannounced” (see page 21, Transcript 3 September 2020). He said she spends a few hours visiting when she drops by as a surprise, and then leaves. When asked further about the visits by the paternal grandmother, the father said (at paragraph [20], page 26 of the Transcript on 25 August 2020):
my mum will come and then give a surprise visit. It’s not – it’s not that I would invite her to come and stay overnight, or like nothing happened. Unfortunately, my daughter, at times, you know, she has heard her voice and she get excited, and you know, I – you know, it’s a little bit hard to just, you know, tell my 25 mother, you know, you no see her, you know? Like, she just gets excited, your Honour. I understand the restrictions at the moment. It’s not something that I promote for my mum to come over and visit us all the time. It’s not something that happens.
When asked about his sister visiting the household, with her daughter, the father said that X last saw her cousin in March, before restrictions were introduced in Victoria.
The father confirmed that the paternal grandmother was coming into contact with at least three other people during restrictions, the father’s sister, her husband and daughter. Although he said that his sister and her husband were both working from home and that their child, I, was not attending child care. The father denied allegations that the paternal grandmother was in the car at handover at B Shopping Centre: see page 22-23 of the Transcript dated 3 September 2020).
Counsel for the Mother raised questions with the father in relation to the child’s health, her history of illness, her treatment and her susceptibility and vulnerability to catching viruses and colds. The father said X has had cold and flus in the past and that this didn’t compromise her immune system. The father said he did understand that treatment undermines a person’s natural capacity to fight off viruses and infection. When asked whether, given this knowledge, he would want to take every precaution to protect X from the virus, the father said ‘100 per cent’, he added that X doctor had said her immune system is better and progressing very well.
I accept that there have been minor breaches of the COVID restrictions by the father and his mother, when X was in his care. The exposure was to the child’s grandmother who appears to have only had contact with other close family members. Given X’s medical history it appears to have been a reckless approach with respect to a child who was potentially at significant risk if infected, even though the risks of infection were low. This would also have significantly increased the anxiety of any parent in the mother’s position.
Further COVID-19 breach allegations
On day 6 of the hearing, Counsel for the mother sought to lead further evidence after the parties’ evidence was completed, in relation to an alleged incident that had occurred the day prior. No notice had been provided to Counsel for the father and no outline of the proposed evidence prepared. The matter was adjourned for Counsel to attend provide an outline of the evidence proposed to be led.
Counsel for the mother emailed six dot points with respect to an allegation the father had attended his sister’s house with the child, in breach of COVID-19 Stage Four restrictions in Victoria:
1. That she arranged with the father after court on Friday 4 September 2020, for the child to visit the father on [Sunday], which was not a court order, nor was it a weekend that the father would ordinarily spend time with the child.
2. That the mother arranged to meet the father at 10 am on Sunday at [B Shopping Centre] outside [a supermarket].
3. The father was to return the child to this meeting point at 4pm.
4. When the child was with the mother alone, the mother asked the child, “did you have a nice day with Papa?” Child replied, “Yes, we went to visit [a paternal aunt] at her house and she gave me [a toy].”
5. The mother was very concerned about the child being at the paternal aunt’s home during stage 4 Covid-19 restrictions and sent an email to the father at 4.48pm that same day.
6. The father responded by email to the mother’s email at 6.58pm, denying that there was any face to face contact between [X] and the paternal aunt.
The father’s sister was cross-examined with respect to these allegations. The father was not challenged on his evidence as to this incident. It was denied that the father attended the sister’s house and his sister gave evidence that she had dropped some gifts at the door of the father’s house, but not seen the father or child. During cross-examination of the father’s sister it was established she had travelled outside her 5 kilometre radius and made a visit other than to her closest shops, but she otherwise confirmed the child had not seen her in months due to restrictions.
The father’s sister presented as a frank and credible witness. On balance I am not persuaded that the father took X to his sister’s house as alleged.
Vaccinations
In relation to X’s vaccination records, Counsel for the mother raised that the father had expressed concern in proceedings in April 2019 (at which time he was self-represented) that the mother was not vaccinating X. On this issue the father said (at paragraph [40], page 37 of the Transcript dated 25 August 2020):
I requested to the mother to vaccinate the child, because the mother was against vaccination. So since then, I haven’t received an update from the mother, when numerous times I asked how [X]’s vaccination is going, whether she is up-to-date or not, I haven’t received any information from the mother.
Order 10 of the Orders by consent made by Judge Mercuri on that date set out that:
10. The father be at liberty to contact Medicare and the [E Hospital] to inform himself about the immunisation status of the child and her health status.
When asked what he did to follow up with the hospital to obtain the vaccination records, the father said he contacted the hospital and had received an email to the effect that the mother was denying the release of any information to him in relation to the child. He said he provided the court documents but received no follow up response.
The father confirmed he has not yet obtained a Medicare card for X, but had attended Medicare some time around July 2020. He later said that he had applied for a card in August 2020, but that he still didn’t have a card at the time of trial. The father said in cross-examination that his issue was not about the mother keeping the child’s vaccinations up to date, but to maintain communication between the parties and in particular, with respect to the child’s medical history: see pages 45 to 46 of the Transcript on 25 August 2020.
Counsel for the mother took the father to paragraph [62] of the mother’s Affidavit filed on 15 April 2019:
62. [X] is progressing well. She is receiving vaccinations at each check-up as she is on a catch-up schedule. Each check-up visit is currently bi monthly and will become trimonthly this year then quarterly the following year, bi annually, then annually each consecutive year after that. Annexed to this affidavit and marked "[MSS]-26" is a copy of her Medicare vaccination record, hospital immunisation record and hospital post [treatment] catch up schedule. A gap between the last vaccination and now due to [X] being ill and having difficulty in administration of the needles due to [X] being too anxious and afraid. An attempt was made [in early] 2019 without success and another attempt will be made at the next check-up in [mid] 2019.
This material was filed prior to the April 2019 court event where the Father sought the above orders. Counsel for the mother put it to the father that he had claimed that there had been some ‘tampering’ and questions about whether the Medicare ‘Immunisation history statement’ document, set out in MSS-12 on page 191 of the CB was legitimate. The father responded that it was clear on page 192 the document had been erased and the date changed, so he expressed concern.
Nothing substantive has been put before me to indicate there is any real concern that the mother is anything but assiduous about the medical care of the child. Given X’s medical history, it is unsurprising that vaccinations would not have occurred at the times usual for children who are not suffering an illness. Orders were made for the Father to be able to obtain records and he appears to have only made a perfunctory attempt to do so. It also seems remarkable that he hasn’t yet obtained a Medicare card for the child, even if he is not personally entitled to a Medicare card, so that he can readily access Medicare for X when she is in his care.
It is difficult not to see the vaccination issue as anything more than a method that the father has used to harass the mother. His limited steps taken since the orders of Judge Mercuri indicate that medical issues are not uppermost in his mind, despite the very worrying medical history of X. This issue demonstrates an apparently laissez-faire attitude to the child’s needs by the father, coupled with innuendo directed at the mother around vaccinations.
Father’s visa status
During the marriage the father had applied for permanent residence sponsored by the mother, although the application was revoked in late 2016. He presently has only a bridging visa. In cross-examination by Counsel for the mother, the father said that he is applying for a parenting visa on the grounds that X is a citizen of Australia. He confirmed he is awaiting the outcome of not just this hearing, but the outcome of the intervention order proceedings.
The father said that his mother is a permanent resident in Australia and his sister is a citizen. He said his father was required by the Immigration department to return to Country F, and his return to Australia has been delayed by COVID-19 related travel restrictions.
On the second day of trial the court was provided with further details in relation to the father’s visa: it was described as a ‘[…] bridging visa’. The visa documentation was tendered as ‘Exhibit 5’, including a letter of advice with respect to the father’s visa application from his migration lawyers. In this document the father was advised that despite his relationship ending (the original basis for his eligibility for a partner visa) he may still satisfy criteria for regulation 820.221(3)(b)(ii) of the Migration Regulations 1994 (Cth), set out as follows:
820.221(3) An applicant meets the requirements of this subclause if:
(a) An applicant would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and
(b) Either or both of the following circumstances applies:
ii. The applicant:
A. Has custody or joint custody of, or access to; or
B. Has a residence order made under the Family law Act 1975 relating to: at least 1 child in respect of whom the sponsoring partner:
C. Has been granted joint custody or access by a court; or
D. Has a residence order or contact order made under the Family Law Act 1975; or
E. Has an obligation under a child maintenance order made under the Family Law Act1975 or any other formal maintenance obligation.
The document further advises that:
“Based on the above, in our opinion the proposed orders whereby [the mother] will have sole parental responsibly, but that you will still have access rights during which time [X] will stay with you for specified periods of time, would not be completely fatal to your Partner Visa application.
…
However, it is also our opinion that the current proposed orders are unfavourable to your Partner …
No detailed submissions were made as to why a spend time with Order would not satisfy clause 820.221(3)(B)(ii)(D) of the relevant regulations.
With respect to the child’s Country F citizenship, Counsel for the ICL submitted in her final address that her understanding was that there is no need to preserve that citizenship, it is an automatic right: see page 37 of Transcript dated 8 September 2020.
The lack of clear evidence and submissions from the father’s solicitor with respect to the visa issues or the child’s right to citizenship in Country F makes it difficult to make findings. It appears that any form of contact order would be sufficient to satisfy clause 820.221(3)(b)(ii) of the visa criteria. It was argued that the greater the amount of time that the father spends with X the better his chances of obtaining the visa. It is not clear why this is the case, given the wording of clause 820.221.
Ultimately I am not persuaded that there is sufficient evidence that any form of order I may make will materially affect the father’s prospects of remaining in Australia, and thus his availability to X. Nor is there any evidence that any particular order may be required to ensure that the child’s Country F citizenship is preserved or obtained.
Father’s relationship with Ms G

Counsel for the mother cross-examined the father on his relationship with Ms G. He said that she is now his ex-partner, after having reconciled with Ms G and broken up again. The father agreed Ms G and X had a ‘really good relationship’. When asked about the possibility of a reconciliation with Ms G, the father said (at paragraph 20, page 32 of the Transcript dated 25 August 2020):
At the moment I am focused on other things. I am focused on my life and focused on this court hearing, I am focused on my daughter, [X].
It seems that the presence of Ms G in the father’s household may have been a support for him and X, however, there is no evidence that that relationship is likely to be renewed. The father, however, appeared evasive on this issue.
As with the visa issues, the lack of clear evidence form the father makes it difficult to make any substantive findings. On the mother’s case Ms G appears to have been a positive factor for the father, save for the fact that if he was residing at her residence it is some distance away. There is no Affidavit form Ms G. Whether the father was evasive because the relationship is over, or because he is concerned about the impact it may have on considerations of travel time (if he is found to be spending time as Ms G’s home) is unclear.
Ultimately, I am persuaded that if it were the case that Ms G is still involved in the father’s life, she is likely a positive influence insofar as being a responsible character, (although travel distance and compliance with restrictions could be an issue in a COVID-19 lockdown), however it remains unclear from the father’s evasiveness on the issue.
Father’s use of alcohol and drugs
There had been considerable material on this issue in the interlocutory phases of proceedings, however it did not feature in the cross-examination of the father in the final hearing (other than a couple of perfunctory questions). His sister gave evidence that he she hadn’t observed alcohol at his house, but that she knows ‘he likes wine’. These issues were not the subject of addresses at the end of the hearing. As a result I make no findings in this regard.
Child support and father’s work arrangement
The father said he signed a lease for a residential property in Suburb H in late 2019 for 12 months, and that he intended to sign another 12 month lease in late 2020. He confirmed rent was approximately $1,500 a month and that it was paid up until late 2019. He said he was very happy living there and he is settled there.
Counsel put to the father that he had indicated to the Child Support Agency that he had no earnings and did not expect income until the mid-2021. He said this was incorrect, that he had notified the agency he was on JobKeeper, and that he made an arrangement with the real estate agent to pay half rent until 2021. The father said he was receiving a Centrelink benefit despite not having finalised his residency, because his employer, a small business owner, had applied for JobKeeper on his behalf. The father confirmed JobKeeper is funding his rent and living expenses at this time. The father said that at the completion of JobKeeper he expected to be able to return to work at a business in Suburb J, but at present he is working only two to three days a week.
The father said his manager has indicated that once restrictions ease, he would accommodate the father’s availability based on court orders, but the father flagged that once things return to ‘normal’ that ‘things can change’. He did confirm his understanding is that if he gave the court orders to his manager, his manager would timetable around those.
Remarkably, the manager gave no Affidavit and was not called to give evidence. To what extent the father’s workplace will accommodate him caring for X is less than clear.
The father has often been in arears with child support, with a tendency to clear arears prior to court dates. I accept that he has not provided regular financial support for X prior to COVID shutdowns and that payments have largely been motivated by upcoming court appearances, rather than a desire to ensure regular support for X.
Contact issues
December 2018
At Christmas 2018 (not long after the child underwent surgery), there was an issue about dates for contact. Order 5 of the Orders dated 18 April 2018, set out as follows:
5. Both parties:
(a) Follow all recommendations of medical treaters of the child;
(b) Advise the other parent as soon as possible of any medical emergency, serious illness or injury of the child and in any event not later than half an hour after such incident;
(c) Provide seven days notice of any interstate travel unless in an emergency, such as a funeral.
Further orders were made on 27 June 2018, where the above order was to remain in effect. At this time the father’s time with the child was Monday and Thursday, 10am to 5pm, however, upon completion of a post-separation parenting course (completed in mid-2018) he was to progress to overnight time from Sunday at 5pm to Monday 5pm. His Christmas time in accordance with the orders was to commence on 23 December at 5pm and conclude on 25 December 2018 at 5pm.
The father messaged the mother in December 2018 saying:
This is my 15 days notice of travelling with [X for one week in December].
The father said that he took the notice requirement to mean he could take the child for any time as long as he gave that notice, and that was his understanding based on advice from the duty lawyer at court: see page 62 to 63 of the Transcript dated 3 September 2020. The obvious difficulty with such an interpretation was that it meant there was no limit upon the time that the father could take with X, provided he gave notice. The father qualified his evidence, saying that he didn’t think the period he could arrange was unlimited, highlighting the difficulty with elevating a notice provision to some form of generalised contact order. I don’t accept that a duty lawyer would have advised that such an interpretation was open, nor does it stand to reason when considering the orders as a whole.
The mother replied in a conciliatory manner, saying:
You can use those days as make up days and return [X] Jan 1^st 5pm. Please provide travel arrangement and accommodation details in case of emergency
The father then responded, refusing to provide the travel details, saying:
I’m returning [X] on Monday […], as court orders are placed. Those are not a make up days as family court orders say 7 days notice for any travel to the other party. It doesn’t say anything about providing travel arrangement and accommodation details. Maybe that’s something you can discuss with your lawyer.
When the proposition was put to the father that this was not a conciliatory exchange he said “we both had a lot on the table, just being separated”: see page 66 of the Transcript dated 3 September 2020.
The father was asked why, whenever the mother asked for information about where he was with the child during that period, he refused to answer or cooperate. Counsel directed him to page 129 through to page 138 of the mother’s CB, setting out a series of text exchanges where the mother was wanting to know more about where the child would be and asking to speak with the child. The tone of the mother indicated she was quite distressed at one point (see the text message on page 134), as she had not heard from the father or child. Before this trip the child had only had one overnight with the father since July 2018. There was no contact between the mother and child on Christmas or Boxing Day. On 26 December the mother wrote to the father’ sister, and when she didn’t respond the mother also texted the father’s mother in Country F language. The text exchanges are set out on pages 136 to 137 of the mother’s CB. The father said he was not aware of the attempts at contact with his family members and was occupied with the child. In December the police visited him and did a welfare check, after the mother called the authorities.
When cross-examined by Counsel for the ICL the father said he thought it would amount to ‘forcing the child’, had he told her to speak to the mother on the phone. It also transpired in the cross-examination by the ICL that the trip was not interstate, but to City K, and so the order with respect to travel was not applicable in the circumstances, even on the father’s interpretation.
This whole incident shows a high handed attitude by the father with little regard for the distress it would cause the mother, and little regard for the likely impact upon the child not speaking to her primary carer during the period. His claims that he had not been in contact with family are remarkable and I do not accept them. I do not accept that his interpretation of the orders was genuinely mistaken.
April 2020
A second incident occurred in April 2019 when there was a proposal for the father to have the child from Sunday 5 April until changeover on 8 April.
The father said that at this time he was living in Suburb H, not Suburb L, the mother says he was taking the child to his (then) girlfriend’s house (Ms G) in Suburb L (which was then classified as a COVID-19 ‘hotspot’ suburb). It was at a time when the mother was increasingly concerned about the child’s safety from infection. The father said on page 73 of the Transcript dated 3 September 2020 that he was staying in Suburb H at that time:
I spoke to my partner at the time, and we made a decision that, based on the orders – that because of the isolation and what was happening, I needed to keep my daughter in [Suburb H] with myself.
He further went on to say:
We made a choice I will stay at my place, [the girlfriend] will stay at her place for the – just to keep safe [X] at the time.
The Father said that when the mother prevented him from seeing the child due to COVID-19 fears he was very understanding. Counsel put it to him that he was meant to return the child on 8 April but still had the child in his care on 11 April 2020. He contacted the mother saying:
I would like to express my worry of who’s around [X] at your place as I’m worried that [X] might get the virus from the extra people living in your place on and off, and therefore we don’t know if they can be carriers of the virus. I believe for the best of [X] at this time that [X] should stay with us as we’re remaining isolated, away from the virus, even though I have been told by the 15 police that I should keep [X] at the home as I am doing so. I think we should agree on this for the best for [X]. I requested permission from the court to allow this, and we can arrange communication via mediation or co-parenting program in this difficult time. Thank you.
The father said the parties had an arrangement, Counsel put it to him that no record of this was in the material, and put it to him that he made it up. He did not agree with this: see page 76 of the Transcript dated 3 September 2020.
It appears to me that the father’s complaints about the mother at this juncture were simply a tit‑for-tat reaction to her genuine concerns about him taking X to Ms G’s house in a COVID hotspot suburb. His conduct does not appear to be child focused, nor demonstrate an appropriate attitude to parenting, particularly with a child who has had such significant medical issues prior to the COVID crisis.
Education
The issue of X kindergarten arrangements was raised at trial. The child attended 3 year old kinder in 2018 and four year old kinder in 2019. In 2018 when the child was 3 she was at kinder on Tuesdays and Fridays. Parenting orders were made on 29 April 2018 providing for time on Thursdays when X was not at kindergarten. In 2019 the days changed to those of the four year old kindergarten group: Mondays, Wednesdays and Thursdays, and the child attended child care on Fridays.
In 2019 when the father had spend time arrangements with the child on Monday’s, he approached the kinder about the child not attending on Mondays, due to the travel distance and because it was “the only day” he could “actually spend some time” with the child: see pages 84 – 85 of the Transcript dated 4 September 2020. This was raised by Counsel for the mother in the context of the father being difficult, however it was confirmed that the mother had enrolled the child on a day that the orders at that time had set as one of the father’s spend time days.
A court order was made on 29 April 2019 for the father to take the child to kinder on Mondays, which he said he had since complied with, once he realised how important it was that she attend that day.
A text message exchange (not dated, see mother’s CB page 143) was referred to at the hearing in relation to the father requesting if he could take the child to kinder on a non-spend time day. This gave rise to an issue about the drop off the child. The mother indicated that kinder commences at 9.30am, the father had proposed taking the child to B Shopping Centre prior, but the mother was suggesting there was no point as it was too early for the child and she would take the child to kinder and that he could just meet the child there. The father indicated he wanted to be the one drop the child: see mother’s CB pages 143 – 147.
Counsel for the mother asked the father why he couldn’t just accept the proposed arrangement to kinder for the convenience of the mother and child. The father said because the child enjoys him taking her to kinder. Counsel also put it to the father that the whole of first term he had not been able to get the child to kinder on Mondays and was now making it so important, on this occasion: see page 102 of Transcript dated 4 September 2020. The father responded that he “took responsibility” and had complied since orders were made.
These incidents highlight the level of acrimony between the parties, and inability to negotiate practical arrangements.
Relationships with the child
The father submitted that the Department of Health and Human Services (now ‘Department of Fairness, Families and Housing’) have “not conducted any investigations” into his care of the child: see page 5, Outline of Case filed 19 August 2020. The father placed emphasis on the Family Report describing the child as interactive, confident and being “very happy” seeing both parents: see page 5, Outline of Case filed 19 August 2020. The father says (at page 6 of the Outline of Case filed 19 August 2020) that:
Especially in the last month, the Father has noticed that since spending time has been taking place on a fortnightly basis (instead of a weekly basis), the Child has been more apprehensive toward the Father for a period after changeovers. The Child has suggested the Mother has been saying a lot of negative things towards her about the Father, which it seems is affecting the Fathers relationship with the Child.
The Mother has disregarded the relationship between the Father and the Child by not facilitating time as per the interim parenting orders on multiple occasions as outlined in the affidavit materials.
The mother says that the child returns from spend time with the father “exhausted” and often needs an additional 1-2 hours sleep to recover from visits which seemingly “wipe out” the child; see pages 185 – 186 of the Transcript dated 4 September 2020.
In the mother’s Response filed on 17 April 2020 there was a claim that the father does not speak English well and therefore should have less time with the child. At the hearing Counsel clarified her instructions were not that the father should not be discriminated against on this basis, but rather that it may affect his capacity to assist the child with homework.
In that response material, a further claim was made that the father was experiencing financial difficulty, as a result of COVID-19 related restrictions, and that these circumstances should also limit his time with the child. It is not the law that the financial circumstances of a parent should lead to a reduction in time with a child.
These two arguments of the mother do not reflect well upon her capacity to place the child’s needs to the forefront.
The ICL submitted that in relation to the nature of the relationship with the child and each of the parents:
i. The mother has been the child’s primary carer since birth and solely navigated [X]’s life threatening illness. [X] relies entirely on the Mother for her day to day needs and as primary carer [X]’s primary connection is to her mother;
ii. [X] also clearly has a loving relationship with her Father and the father is eager to pursue more time with his daughter, but he does focus on his work commitments and personal needs over the child’s;
iii. The Father would like to take the child back his native country of [Country F] for a visit but this is not a live issue given the pandemic and the unlikelihood of travel to developing countries in the near future.
I accept the Independent Children’s Lawyers submissions on this issue.
Family Violence
At the time of the hearing a family violence intervention order was in place (which the mother was granted on 15 January 2019), naming the father as the respondent. The father is contesting that order and that matter has been adjourned to 2021.
The mother sets out her allegations of family violence in paragraphs [13] to [28] of her Affidavit filed on 6 November 2019 and in the Affidavit filed 16 June 2020 from paragraphs [30] to [54]. The allegations are particularised in detail although some general claims are set out such as (at page 199 of the mother’s CB):
After the Family Court consent orders were made in April 2018, [Mr Rouco] continued to display aggressive, controlling behaviour during exchange at my new home and in the presence of [X]. Such as yelling at me to give her breakfast to him and brush her hair and spitting outside my front door and using intimidating body language. [Mr Rouco] also swore at me during face time calls.
In her Affidavit filed 16 June 2020 the mother describes in very general terms how she says the family violence has changed since separation, saying (on page 304 of her CB) that:
The family violence I experience from the Father has changed since separation and is more in the nature of controlling family violence, intimidation and verbal put downs, rather than property damage and physical violence.
Counsel for the ICL noted that the father does not respond specifically to the material in his Response filed on 16 April 2020 and that he only responds generally. In his Notice of Risk on page 106 of the father’s CB, the father raised no issues of risk. He explained at the hearing that he had filled this form out himself and he clarified his view was there had only been family violence between the mother and himself, not involving the child: see page 112 of the Transcript dated 4 September 2020.
The father accepted that he had been convicted of assaulting the mother and breaching an intervention order in 2017. The father’s responses to questions about this were remarkably vague, saying that he couldn’t remember but accepting he had been convicted if that is what the police material showed.
I accept he has been convicted of an assault on the mother. It is disconcerting that he has no memory of it, particularly since he was placed upon a bond and required to do courses. It gives little confidence that the father may have changed his behaviours.
Criminal history of the father
The father arrived in Australia in 2007. Victoria Police subpoena material sets out the father’s criminal history in Australia between 2010 to 2018; these pages were marked ‘Exhibit 6’. His first offence occurred in 2010 at Location N. A description of the offending was set out on page 40 -21 of the subpoena material and the father agreed it was a fair summary of events (marked ‘Exhibit 7’). The father was arrested and charged that year for criminal offences: see page 113 of the Transcript dated 3 September 2020. After making full admissions and pleading guilty in the County Court of Victoria, the father received a suspended sentence, after he had served time in prison: see page 125 of the Transcript dated 4 September 2020.

In relation to this incident Dr D (at page 141 of the father’s CB), says:
32. … He had denied all violence whatsoever. He appeared to take little responsibility for his actions, tending to blame other people, particularly the mother, for any difficulties. His account of events with the supervisor that led to his jail sentence and conviction seemed superficial, omitting many details. He did, however, give an impression that he was interested in a connection with [X], and that he was caring towards her. He did not appear intoxicated.
…
36. Insight - There was little insight into the impact of his anger upon others. This included the mother and child.
The ICL confirmed there were no mental health issues and put it to the father that this incident was motivated by anger. He denied this. He explained he had been bullied in his first job at the time for not speaking much English. The father said in cross-examination:
I can’t tell you what my state of mind at the time – it was 2010. That person who – I was at that time another person I’m now. That was years ago. I admit my mistake and, you know, I sent to the [victim] a letter of forgiveness and how sorry I was. I faced to her and her ..... at the time, and apologised to her and her 10 family. That’s all I can say […] I probably could have handled the situation in a different way. At the same time, like I said, I was bullied, my English wasn’t the best.
Significantly, as I understood his evidence, it was not alleged that his victim had been bullying him.
The father’s criminal history is very troubling, not only due to the circumstances of the offending (threatening a woman with a weapon), but the statements to the psychiatrist show little insight by the father. I am satisfied that the father has engaged in very violent conduct, fuelled by anger, in the past and that his lack of insight indicates that there remains a real risk of repeated violent behaviour.
The ICL put it to the father that he had not told the mother about the 2010 conviction, and that she only found out during the visa sponsorship application, which he accepted.
The father’s evidence was characterised by a failure to take responsibility for things that he did and a deflection of blame. In this regard he appeared to be minimising his serious conduct.
The parties’ relationship
The parties’ relationship commenced in 2014. Counsel for the mother put it to the father that it was soon after the parties began arguing, and the relationship was not just verbally but physically abusive: the father denied this, but says that during the relationship “there were instances of verbal arguing, pushing and shoving”, but says that post separation he “has not exposed the Child to physical or psychological harm”: see page 4 of Outline of Case filed 18 August 2020.
When asked by the solicitor for the father whether the mother had ever pushed or shoved too she said, “No, I was defending myself by using my force to defend myself.” The mother said she was “never violent towards the father” and that the violence “was always one sided”: see pages 203 -204 of the Transcript dated 4 September 2020.
In the mother’s first affidavit she sets out that prior to 2015 the father had thrown an object at her, thrice thrown furniture at her, punched a hole in the wall, and rolled her off the bed by lifting the mattress when she was sleeping (see paragraph [10] of her Affidavit filed 12 April 2018). No detail was given with respect to these events, nor were they addressed in her subsequent Affidavits.
March 2015 incident
A complaint, reported in March 2015, is said to be the first complaint made by the mother to the police against the father. This was documented at page 23 of the Victoria Police subpoena material. The mother refers to this incident on page 197 of her CB. No particulars of the event are set out, the mother simply says:
There was a family violence incident in March 2015 when police attended our home, and an interim intervention order was applied for by them. I chose not to progress to a final IVO in that instance. The police application explanation of the incident was incorrect and out of context in that was never violent towards [Mr Rouco] only defended myself against him by pushing him away from me during an attack.
In relation to this event, the father said it was “a very rough relationship” and it was “only just pushing and shoving”. Counsel put to the father that the incident was an argument over car keys, for a car belonging to the mother. The father disagreed. I can make findings no broader than the mother’s limited version in her Affidavit material.
October 2016
Another report was recorded in the police material as being made in October 2016. It does not appear to be addressed by the mother in her Affidavit. The father said he could not recall this event. This wasn’t taken further at the final hearing. I do not take this into account.
January 2017 incident
On page 198 of her CB in the Affidavit filed 6 November 2019 the mother raises an incident, which she describes as follows:
…there was another family violence incident in the home by which the police again applied on my behalf for an IVO and at this time had [Mr Rouco] removed from the house. [Mr Rouco] was charged for assaulting me and for breaching the IVO with communications to me personally via mobile text and emails after being served with the order. I was present during the day of [Mr Rouco] criminal charges hearing in Court [in] 2017 where [Mr Rouco] was found guilty and he was ordered (as part of his punishment) by the court to complete the Men's Behaviour Change program.
At the hearing it was put that during this incident, the mother was getting ready for a function that the father didn’t want to attend. Counsel said this event gave rise to the intervention order in place: see page 130 of the Transcript dated 4 September 2020. The father denied the allegations. The father was served with an intervention order in relation to that incident in January 2017.
The father was charged with assaulting the mother in April that year, and appeared at the Magistrates Court on charges of unlawful assault and contravention of a family violence order in April 2017. He was convicted and placed on a good behaviour bond and ordered to attend a men’s behaviour change program: see page 135 of the Transcript dated 4 September 2020.
I prefer the evidence of the mother on this issue. I am satisfied that the father engaged in significant family violence in this incident.
2018
On page 304 of her CB the mother sets out:
[In] February 2018, after I had asked the Respondent for some child support money, his reply was: “If you can’t financially support [X], I’m going to ask for full custody of [X] at court”.
She further particularises:
[In] May 2018, the Respondent, during an exchange at my home, and before exchange location was changed to [B Shopping Centre], whilst filming me on mobile device, aggressively in a loud voice demanded that I provide breakfast to him in order to feed our child and told me that “You had from 7.30 in the morning until 10.30 to give her breakfast”, and “Look, you didn’t even tie her hair”. The Respondent also sent me text messages demanding that I send him a picture of our child’s breakfast.
I accept the mother’s evidence as to these events.
2019
The mother sets out a series of events in 2019 on page 305 of her CB, with respect to family violence allegations against the father:
46. [In] January 2019 the Father aggressively snatched [X]’s bag of clothing out of my hands during an exchange. This was two days after my IVO extension was granted and his application was denied at the contested hearing.
47. [In] March 2019 the Father demanded that I say “thankyou” to him for giving me a pair of used shoes for our child’s use.
48. The Father is consistently in arrears child support. In April 2019, the Father was in arrears child support $5000. The Father has a pattern of only paying child support right before any court hearings.
49. On April 9th, 16th and 30th 2019 [X] was returned in the same unwashed clothing as given three days prior and without underpants on. After I had given her clothing back to the Father, she was then returned in fresh, clean clothing purchased by him.
50. On April 21st 2019 the Father filmed me on his mobile device during changeover.
51. [In] July 2019 the Father texted me stating [X] couldn’t breathe and needed to go to hospital. He then refused to take her to hospital or even see a doctor. He also then refused to return her to me and withheld her in breach of the family orders for a further 24 hours. I requested assistance from Police but they could not help me. I took [X] to the doctor immediately after exchange and she was diagnosed with [a virus] and given steroid medication.
52. On April 6th 2019 the Father came at me aggressively during changeover, demanding in a loud voice that I return [X]’s clothing to him saying “where are her clothes, where are her clothes, where are her clothes?”. He then threatened to contact DHHS because I had not yet returned [X]’s clothing to him.
I again accept the mother’s evidence in this regard.
The mother’s solicitor annexed to her Affidavit dated 6 November 2019 a document which appeared to be prepared by a worker at the ‘Safe and Together Institute’, described as ‘Mapping Perpetrators’ Pattern Tool’. It contains an extensive list of allegations, most of which are not the subject of evidence in the mother’s Affidavits. The person who produced the document was not called to give evidence. The document was not the subject of oral evidence by the mother, nor ultimately put to the family consultant. It was not referred to by any party in final addresses. Ultimately I draw no inferences form the document given the way in which the case was run.
Conflict between the parties
The parties met in 2014 and separated sometime in October 2017. The Independent Children’s Lawyer points out that the parties have had three years to learn and adjust to co-parenting separately and have failed to find ways to effectively communicate.
The father’s case is that the parties have some ability to communicate. In cross-examination he confirmed his position that “I don’t think that we can’t communicate”, in reference to the mother. “We’ve been very civil lately… we haven’t had any family violence…we’ve been trying to do what we can for the best interest of our child”: see page 28 of the Transcript dated 3 September 2020. The father also said, “I believe we are mature enough to make a decision for the child. Good example was the school… I tried to facilitate with that”: see page 168 of Transcript dated 4 September 2020. Counsel for the mother submitted during the trial that the parties “just can’t seem to agree even on the simplest things”: see page 88 of the Transcript dated 3 September 2020.
When asked about describing positive things about the mother, the father said the mother is an “amazing mum” and he has “always respected her for who she is”, but he acknowledged the parties have arguments and said that “unfortunately the mother was always – had the controlling of calling the police every time, and the police knows about it…there were always calls for no reason”: see page 139 of Transcript dated 3 September 2020.
When asked about positive aspects of the father’s relationship with the child, the mother said the child “enjoys spending time with her Dad…she loves him, she also added, “I believe they have a loving relationship, however, he tends to want to give her lots of lollies and ice creams and sweets, which she loves, but it causes me concern because she does have [a number of]fillings” ; see pages 186 of the Transcript dated 4 September 2020.
The mother clarified that the father is a “loving, caring Dad and very affectionate with [X]”, but said “he doesn’t respect me”: see page 187 of Transcript dated 4 September 2020. She goes on to explain that her proposal is made because she tries to negotiate time with regards to holidays and special occasions with the father, but it “usually ends up he just really does what he wants anyway and doesn’t really negotiate with me”: see page 191 of the Transcript dated 4 September 2020.
The mother further added that the father “likes to communicate with me when he likes to and then he will either not respond to me or ignore me when it suits him”: see page 193 of the Transcript dated 4 September 2020. The mother indicated she did not think there was scope for the communication to improve, she said she will communicate to the best of her abilities to avoid conflict, but thinks the father does the opposite. The mother said that in their communication there is “a conflict on every level.” When asked about shared responsibility with some decisions like living arrangements, religion and culture the mother said “I think we will just have to come back to court”: see page 206 of the Transcript dated 4 September 2020.
I accept that the communication difficulties are significant and that they are not entirely one sided. However, the conduct of the father has been more significant in contributing to this problem. I am not persuaded that these difficulties will abate in the foreseeable future.
Hospital incident
It is alleged that an incident occurred at E Hospital, when the father contacted the hospital in relation to the child receiving treatment a symptom of her medical treatment in late 2018. This would have been a distressing time for the child and the parents. For this procedure, the child was administered a general anaesthetic. Counsel for the mother put to the father that the reason he contacted the hospital was to attend the day the child was to have surgery. At the time the Intervention Order (‘IVO’) was in effect and the mother was uncomfortable with the father attending.
The mother sets out the father called the hospital ‘numerous times’ in an attempt to get the surgery details so that he could attend.
It seems that the father was so persistent in communicating with the hospital that a social worker at the hospital closed portal access to the father and that there was consideration given to rescheduling the surgery due to the mother’s distress caused by the father. The father says the mother prevented the hospital online portal from giving him access to X health records and convinced staff that X would be at risk of harm if he attended.
The father sent a text message to the mother saying:
Can you tell me when and where [X]’s having that […] surgery, because, I asked all the hospital and they don't have any records of her name for any surgery, and as her father I would like to be with her in case she needs me. Thank you.
The mother responded:
She's on a waiting list.
The father acknowledged that he could not attend the hospital due to the IVO in place, however this is inconsistent with his message saying he would like to be with X for the surgery. It appears that the father had little regard for the restrictions imposed by the IVO, just as he had little regard for the terms of the contact order. It also explains the mother’s evasiveness with respect to information as to the date of surgery.
The father maintains that he still has no information about the child’s surgery, and maintained that his solicitors did not discuss with him the option of subpoenaing the hospital records in relation to the surgery records in the preparation of the proceedings.
Religion
In his initial material, the father raised an issue with the mother’s religious practices, seeking to injunct the mother from raising the child in her faith. He withdrew that application during the hearing: see page 6 of Transcript 26 August 2020.
The father denied ever referring to people of her religion as “filthy […]”, as alleged by the mother, and said he had no problems with the child attending a religious school, other than concerns about travel distance: see pages 101-111 of the Transcript dated 3 September 2020.
On balance I accept the mother’s evidence as to the father’s attitude to her faith and heritage and the offensive comments that he made. The father only resiled from his opposition to the child being raised in the religious tradition at the hearing.
New pet dog
In cross-examination of the father, Counsel for the mother raised the allegation that in the last 9 days (prior to trial) he had adopted a dog, and left the child on her own in the house with the dog, while he went out to print off her homework: see page 48 of Transcript dated 3 September 2020. The father denied this allegation and said he has a printer and laptop at home.
A letter between the solicitors dated 2 September 2020 set out this allegation, this document was not in the court bundle but was tendered and marked ‘Exhibit 2’.
The father confirmed the mother had emailed him about this issue, and he read out the correspondence from the mother:
[X] just told me you left her alone at home with your new dog for a period of time. This is highly inappropriate and poses a great risk to [X] for a myriad of reasons. Do not do that ever again. Thank you.
When asked if he ignored the mother, the father said that is not true, that he didn’t ignore her just from his point of view it was not the truth and he wanted to limit communication to matters concerning the child: see page 54 of Transcript dated 3 September 2020.
I am not able to make a finding on the evidence as to whether X was left alone at this time, however, I see this incident as another example of the communication problems between the parties and the severe lack of trust.
Choice of primary school
The issue of the child’s schooling was also raised at trial, with respect to the parties’ communication, and as an exceptional example of the parties coming to agreement. The father said he did not think there had been any “conflict or drama” in the process of making a decision about school.
In March 2019 at an interlocutory event, Counsel for the mother approached the father with a list of possible school options. The father says he was asked to sign a document on the day, but he had wanted to tour the schools, so he did not sign it.
In February the mother had raised the issue of schooling and the need for the parent to choose a school. In April the parties agreed to send the child to M School and on 2 April the father signed the documentation for the child’s enrolment. It appears that this was an arrangement that was only reached at court with the duty lawyer assisting the father.
Counsel for the ICL cross-examined the father on the basis that he had effectively been obstructive in this regard. On the actual evidence it is difficult to draw any inference with respect to these negotiations, save that the father had not considered school options prior to being asked by the mother.
School attendance
It was also raised that there has been some issues of non-attendance of the child at school, when in the father’s care. On one occasion, the child was absent for a day, the mother confirmed there was no medical certificate provided, and on another occasion, the child was late to school. The mother found out on the school portal: see page 209 of the Transcript dated 4 September 2020.
The number of days is minor and not significant in itself. Given that the mother is the primary carer, it is remarkable that the father would not tell the mother if the child missed school or was late.
Mother’s anxiety
The mother confirmed she receives counselling to assist with her “ongoing struggles” with anxiety, her dealings with the father, the child’s health conditions, as well as what she describes as “personal issues, lack of self-worth…why I seem to fall into relationships with abusive partners”: see page 208 of the Transcript dated 4 September 2020.
In a psychiatric assessment of the mother made on 27 September 2019 Dr D stated at page 152 of the father’s CB that:
[Ms Secada] states that she suffers from generalised anxiety. The anxiety manifests itself mostly in the experience of stress and in bodily symptoms such as muscular tension, headache and abdominal pain. The anxiety becomes exacerbated when the proceedings are imminent or when there are exchanges between herself and the father. She sleeps well and denies symptoms such as panic attacks, counting and checking, suggestive of obsessive compulsive disorder or agoraphobia.

When asked about this the father said:
the way I see it, and I don’t think her anxiety, as she stated, is because of that court process and, you know, the exchange that we have.
Dr D report sets out a diagnosis for the mother of adjustment disorder:
ADJUSTMENT DISORDER
[Ms Secada] describes a pattern of generalized anxiety with somatic manifestations that arise out of a difficulty dealing with the family violence committed by the father toward her, and the concern regarding [X]’s ALL, and the life threatening nature of the illness.
She has sought counselling for her anxiety on two separate occasions, and has responded well to the psychological treatment. She is in the middle of the second bout of treatment currently.
Her symptoms are only moderate in severity, and do not impair her ability to parent effectively.
Dr D’s conclusions provide an insightful description of the mother:
OPINION
There are no concerns from the father regarding [Ms Secada]’s capacity to care for the child.
As far as I can establish, [Ms Secada] did not demonstrate any psychiatric problems prior to the relationship. During the relationship, there have been significant episodes of family violence on a number of occasions, resulting in the police being called and charges being laid for assault on the mother. This has resulted in her developing anxiety symptoms that are exacerbated by contact with the father, either potential or actual. An additional factor in her anxiety is the natural concern regarding the future of [X]’s health, considering the seriousness of the ALL, and its life threatening character.
There have been other factors involved that have been significant in her clinical picture. There has been a history of major losses or threatened losses in her life. These have included the death of the maternal grandfather from [an illness] in her adolescent years, the threatened death of the maternal grandmother from [an illness] in her early adult years, and the loss of the family fortune (resulting in a loss of identity and status) following the grandfather’s death. These losses are likely to have played a part in her exhibiting difficulty in ending the relationship with the father, despite the violence and infidelity, as she would likely have been trying to avoid another loss.
[Ms Secada] appears to demonstrate an insecure attachment pattern, wanting to cling to those to whom she is in an intimate relationship. This was demonstrated in the relationship with the father, but this might be also shown in her relationship with [X]. The ALL would exacerbate this fear of loss. This could only be determined fully by observation of the interaction between mother and child. The possible consequence is that there would develop a dependency upon the child, and difficulties with coping with individuation of the child.
I believe that [Ms Secada] should continue her counselling, which would assist her in dealing with her anxieties, and strengthen her confidence in attachment.
Counsel for the ICL asked the father about an incident in July where it was alleged the father over held the child, and whether it crossed his mind it caused the mother to be anxious, the father said ‘no’, it didn’t: see page 153 of Transcript dated 3 September 2020. It seems remarkable that the father would not have been aware that the mother is an anxious person and would be anxious about their child.
I accept that the mother suffers from anxiety, and that describes some of her behaviours. She is taking active steps to address her anxiety disorder. It is unfortunate that the father appears to have so little insight into her anxiety, given that he lived with her for a period of time. Sadly, father appears to respond to the mother’s anxiety as though she is consciously setting out to be difficult, resulting in him engaging in almost tit for tat behaviours. This does nothing to ease the tensions between the parties nor facilitate a better quality parenting environment for X.
I accept that the father’s conduct exacerbates the mother’s anxiety, and that therefore interactions with him a disruptive to the mother’s household.
Minor Scratches on Child’s side
Counsel for the ICL cross-examined the father about an event on Face Time where he said the child showed him scratches on her side. The mother details this event on page 305 of her CB at paragraph [42]:
[…] on 14th August 2019 during a facetime call, he said to [X] “do you want papa to call the police?” because [X] had a minor scratch on her [body]. He called 000 to get Police to my house. No report was made. [X] was significantly traumatised by the Police entering our home, and she replayed the event to me over and over for months, displaying distress and at times anger directed towards her dad about it. To this day [X] still experiences anxiety during Facetime calls often becoming quite distressed and pleading with me to not even commence the call, and in particular if she scratched or injured herself at school. For example, she will specifically say to me “I don’t want to talk to papa because I have a scratch”.
The father’s version of this incident was set out at page 71 of his CB at paragraph [9]. He said the injury was ‘pretty red’ and that the mother had been physically abusive with the child. The father said the mother hung up the phone up on him, and so he first texted the mother, who didn’t respond, and then he called the police for a welfare check.
When asked what impact the father thought this would have on the child, he said he was concerned and thought it would be appropriate for the police to talk to the child. The father said that he would have called the police even if the child had told him not to: see pages 155‑159 of the Transcript dated 3 September 2020.
The mother’s evidence was that her jacket got caught on the child, but that that the father had put a sinister spin on it, alleging the mother had physically disciplined the child. The mother also said that the child displayed post traumatic behaviour after that event:
12. On the 1st of July 2020 during a Facetime call with the Father, [X] became distressed, hid under the table, and pleaded for me to disconnect the call. [X] said "I'm scared to talk to papa." I messaged the Father that [X] did not feel like talking.
I accept the mother’s evidence on these issues. It appears that the father over-reacted to the incident causing significant distress to the child and the mother.
When it was put to the father that when the child is in his care he does not really take into account the mother’s anxiety, he responded that, “when the child is in my care, I’m focused on the child” see page 168 of the Transcript dated 4 September 2020. It appears that the father takes the view that it is acceptable to ignore the mother and deny her any information about the child whilst the child is in his care.
I do not accept the father’s version of events, nor that he appropriately encourages the child to speak to the mother on the telephone. In these situations it is appropriate parenting to direct a child to speak to the other parent. In this case there is nothing to indicate that this would be difficult, as the evidence shows the mother to be a loving primary carer of the child. The father’s conduct is at best indifferent to the mother’s concerns for the child, and at worst designed to make the mother anxious.
Psychiatric assessment of the father
Dr D also provided a report with respect to the father, noting, with respect to his presentation:
32. Affect - The father did not appear anxious or depressed during the assessment. He gave the impression that he was minimising any difficulties or substance use. In particular, there were marked differences between his version of conflict between the parties and the mother's allegations. He had denied all violence whatsoever. He appeared to take little responsibility for his actions, tending to blame other people, particularly the mother, for any difficulties. His account of events with the supervisor that led to his jail sentence and conviction for false imprisonment seemed superficial, omitting many details. He did, however, give an impression that he was interested in a connection with [X], and that he was caring towards her. He did not appear intoxicated.
Dr D’s opinion with respect to the father is that he does not suffer a psychiatric disorder which may explain his violent conduct, saying:
OPINION
43. [Mr Rouco] does not have a diagnosable psychiatric disorder, either on history or on mental state examination. This is true both currently and in the past.
44. Although the mother has stated that the father was often drinking alcohol to excess, and that this was a factor in the violence, there is no corroborating evidence. There are no drink driving convictions, and no Police charges that mention alcohol. He has been able to hold down responsible positions over many years. There were no signs on mental examination of intoxication or withdrawal.
45. This is similar to the allegations of [illicit drug] use by the mother. There is no corroborating evidence of drug use. I have not seen the results of any drug screens, however.
46.There is a clear discrepancy between the two parties as to the extent of the physical violence perpetrated by the father on the mother. The mother stated that she was hit on the back of the head at least on one occasion, and had been dragged from the car in front of the child. The mother also stated that the father had been aggressive and punched a hole in the wall in front of the child. The father denies these incidents ever took place. The Police application states that both parties “push and shove[d]” each other in the past, and “have been violent with each other”. Further details were not given.
47. The true extent of the violence cannot be accurately determined in this assessment. The father has demonstrated that he can get rather angry with others, as shown in the jail sentence given for the altercation between himself and [a woman] in his early twenties. I am not aware of any other charges or convictions however. Due to his lack of detail regarding his developmental history, it is unclear as to the reasons behind his anger. It is not due to a psychiatric disorder however.
48.There appears to be no causation of any possible violence by virtue of a psychiatric disorder.
None of the parties sought to cross-examine Dr D. I accept his evidence. The mother set out evidence of the incidents that are referred to by Dr D in her affidavits and was not challenged on that evidence,
Child’s name
Counsel for the ICL cross examined the father about the name he filled out in the child’s hat, where he left the hyphenated mother’s surname off. The father said it’s common to refer to a first surname (he had written his surname and not the mother’s) and also there was not enough space to put the full name: see pages 165-166 of Transcript dated 4 September 2020. When asked if he thought this would have upset the mother the father said, “I didn’t think that was going to upset her. I don’t think every little thing that I do, what is going to be her like or her dislike.”
Considering that the name was simply printed inside the hat, and not on a tag (as shown in the photo in the mother’s affidavit) it is apparent that the father’s evidence that there was not enough space is simply false.
Names are significant symbols of people’s identity and connection with family. In such a high conflict case the act of using only the father’s surname, when the parties had chosen a hyphenated name using both of the surnames, can only be seen as the father ignoring the agreement about names.
Family Consultant’s Evidence
The family consultant, Ms O, provided a report after interviewing the parties, outlining:
Adult relationships
49.It was evident that the parents have a pattern and history of ineffective communication and a lack of trust with one another. From both parents narratives it is apparent that [X] has been exposed to the conflict that has occurred between them from a young age. Whilst acknowledging the stressors at the time that may have contributing to this, even following separation and attempting to co parent had continued to conflict with parenting arrangements and each holding the other responsible for these difficulties. Whilst both parents appear to have the capacity to work cooperatively in matters that pertain to [X], there are concerns whether they have the willingness to and questions arise regarding the future negative impact this will have on [X].
It was troubling that although [Ms Secada] indicated a willingness to promote the relationship between [X] and [Mr Rouco], her proposal communicated was contrary to this, in particular with her suggestion that she believed every third weekend for spend time would suffice without apparent thought as to the impact this may have on [X]’s relationship with him.
51.It was positive to identify that [Ms Secada] appeared comfortable with [X] being around [Ms G] and that she had reported [X] had spoken positively about her step mother. No issues were raised in regards to [Ms G] during the assessment which highlighted no concerns, although [Ms G] was not present for the assessment.
Unfortunately the family consultant appears to have had limited information at the time of preparing the report, for example, she noted:
62.Whilst both parents raised potential risk factors during the assessment there appeared to be limited evidence available to substantiate these. It was unfortunate that the court ordered psychological assessment had not been completed to enlighten any evidence of either parent’s mental health and any impact this may have on their parenting. Whilst it was concerning to identify the incident that led [Mr Rouco] to be imprisoned this incident is historical and appeared to be an isolated event. In addition [Mr Rouco] appeared genuinely remorseful for his actions and the effects his behaviour had on the other person involved. Although there is a current Intervention Order in place, [Mr Rouco] refuted the family violence allegations made by [Ms Secada].
The family consultant also proceeded on the basis that, ‘there is no such evidence at this time to suggest that the parents are unable to make joint, major decisions for X when they arise. The fact that they were both able to amicable agree upon a primary school for X demonstrates this’: see paragraph [66]. On the evidence before the court these comments are not sustainable.
The family consultant recounted the father’s version as to incidents of violence in the following terms:
20. [Mr Rouco] denied any physical incidents of violence towards [Ms Secada], however reported that during altercations they would push one another. He described a volatile relationship and reciprocal heated arguments between them during which they were both verbally abusive towards one another. [Mr Rouco] advised that he was shocked when he was served with the Intervention Order and that this was able to be granted without a scratch on her. He stated that following [Ms Secada] allegations to police in regards to him throwing [an object] at her they had come to the home and seen there was no evidence of disarray or damage.
The family consultant does not appear to have explored the mother’s allegations, which she noted in her report, saying, ‘there had been incidents whereby he had thrown items at her (including an object) whilst she was holding X, had pushed her on a number of occasions and attempted to strangle her’ (at paragraph [19]). Nor did she explore the details of the event where the father agreed that he had ‘threaten[ed] a female manager where he worked at the time with a weapon as she left work as he wanted to talk to her’: see paragraph [21] of the report.
When the family consultant gave evidence, she said that she had received updated information form the parties’ lawyers, as a result of which I had the following exchange to clarify what new information she had received (at T260.42):
Yes. And are you able to outline to me the key bits of information that you have been told in the meantime?---So I have read – so I have obviously been told the father’s not working any longer, I understand, and so obviously that changes certain things. I have – I understand that he – that – I have read the two psych reports that 45 were completed after my assessment and I have also read the police information as requested by yourself, and I have also been made aware of some concerns around the father having a visit in – either visitors to the home or visitors out with the whole COVID issue going on and placing potentially [X], obviously with her health issues, at potential risk, and also concerns around some evidence that the father had gave around an incident that had happened with [X] on FaceTime, believe, and it – I think I have mentioned it in my report, where he saw scratches on her. So that’s sort of the 5 summary of the information, I think, that I can recollect that I have been told over the past couple of weeks in regards to – regards to what has been happening, and just obviously the parents’ ongoing conflict over the past year and obviously not being able to agree upon a – a settlement on the case.
Counsel for the mother sought to cross-examine the family consultant on an Annexure to an earlier Affidavit of the mother’s that had been prepared by another professional. This report (said to have mapped the family violence) had not been sent to the family consultant prior to her giving evidence. After expressing concerns as to its admissibility and weight, I said to the mother’s Counsel that:
Well, to the extent it’s a chronology of events, presumably all of these events are described by the mother in her affidavit, and you can take the family consultant to them. (at T277.38)
Unfortunately Counsel never put specific incidents to the family consultant, merely asking an overall question and receiving the following response:
And the things that I’ve just put to you about family violence, the father’s prior criminal history, including unlawful assault to the mother and breach of family violence orders, all in the VicPol subpoena, does that alter the way you come to the conclusion of the time he spends with [X]?---I’m not sure it would alter my recommendation, but it would obviously – I would have highlighted as a – you know, as a – evident of concern in my report of the history, and the pattern, especially after separation, from the police report and what the mother has alleged, if that is accurate, then it obviously would have been something I would have raised in my report for his Honour to have a look at.
The family consultant was cross-examined by the ICL as to the impact of the conflict between the parties on X. The ICL confirmed with the family consultant her views, in light of the more recent material (see T284.38):
So your view is, just to clarify – so your view is that even with these parents arguing, as they’re doing, and [X] being in the middle, that the appropriate arrangement is still for [X] to spend time with her father, would be Friday to Monday, and Monday 40 dinner in the other week?---Yes
In an attempt to clarify the family consultant’s opinion, I asked some further questions. With respect to the potential risk to the child, the follow exchange took place (at T285.1):
Was there anything that led you to have any concerns that [X] might actually come to harm at the hands of the father?---No, your Honour, not from my assessment at the time. No.
With respect to facilitating time, the family consultant said, ‘So I think the reality in this case is, the parents really having minimal contact, and any contact to occur around, maybe has to be through a third party’: see T285.22. The family consultant was of the view that even if the child is overtired for school on Mondays, that would be better than significantly constraining her time with her father: see T286.10.
FINDINGS
Child’s best interests

In this case the child is young, and unable to express mature views as to care arrangements. However, the child’s views can be inferred from her reactions to her parents. Those reactions demonstrate that the child has a positive relationship with the father and his extended family, as well as an attachment to the mother. The child appears to be primarily attached to the mother. The child is not finding it upsetting or traumatic spending time with the father in this case, in fact, she enjoys her time with him. The child appears to have positive relationship with all of her extended family.
It is clear that the father has sought to participate in her life by spending time, and communicating with, the child as much as possible. However, when issues have arisen with respect to significant decisions relating to the child, for example, medical issues and schooling, the father has not engaged in an effective manner. Rather, it appears that the father has been reactive and often used the issue to cause anxiety to the mother. The impact of this conduct, given the mothers predisposition towards anxiety, is far more significant than in the average case.
It is clear that the mother has fulfilled her obligations to maintain the child. I have doubts as to the extent that the father does the same, where it involves financial assistance to the mother by way of child support.
In this case is not suggested that the child be removed from the mother’s primary care. The issues concerns the extent to which the child will spend time with the father, and as a consequence, the amount of time that the child may have with the father’s family which, in particular, includes his sister’s family and the child’s paternal grandmother. It appears that the child has good relationships with extended family and reductions in that time would not be positive for child.
It remains unclear to me precisely what the father’s living arrangements are, and it appears unlikely that he will provide a frank account of those that living arrangements into the future. If the father is living a long distance from the child’s school, this will provide some practical difficulties, just as his employment may cause difficulties if he is required to work at times when he has the child in his care. However, his evidence is that he can arrange his work roster to fit orders. In the context of this case the mother would be content to care for the child if the father is working.
I have real doubts about the capacity of the father to meet the child’s emotional needs, as she develops. I form this view based upon the nature of father’s interactions with the mother, and his apparent inability to cooperate with the mother and participate in a meaningful way in decision-making for the child. His presentation at trial showed reactive and combative personality. His criminal history similarly shows such behaviours which have manifested themselves in significant violence. The report from Dr D shows that the father’s presentation for his psychiatric report was in a similar vein.
I accept that the mother’s anxiety causes her to be more difficult to deal with for the father than the average person, but these are not difficulties that are so great they cannot be reasonably managed through appropriate interactions. I also bear in mind that in this case, the child has a very serious illness that would be likely to cause most parents considerable anxiety. Similarly, the extent to which the mother has suffered domestic violence at the hands of the father, would have driven considerable anxiety.
In this case both parents are of mature ages and lead lifestyles that appear to be within social norms. There is little about their maturity, sex, lifestyle and background that is of significant impact. I note that the mother is religious and that the father of an immigrant from Country F, placing them within identifiable social and racial groups. The significance of this relates to the importance of the child being given an opportunity to know and participate to in matters relating to heritage, however, both parents are clearly able to assist the child in this regard. It does not appear that there is anything in the parities’ heritage and cultural traditions that ought to be an impediment to properly parenting the child, provided that both parents remain respectful of the cultural heritage and traditions of the other. In this regard I hold concerns that the father has expressed discriminatory views in the past, and that if such conduct continues, it is likely to be damaging to child.
The child in this case is not said to be an Aboriginal and Torres Strait Islander child.
I have discussed above the parent’s attitude to the child and responsibilities of parenthood. Whilst the mother is clearly an anxious mother, and suffers some degree of anxiety, this must also be seen in the context of the child’s grave illness in the past. The fears that the mother holds as a result of the COVID-19 pandemic, given the child’s previous cancer treatment, the domestic violence of the father, and the difficulty of dealing with the father with respect to parenting issues, appear to be reasonable and not simply a product of her anxiety.
The father presents superficially as a robust individual, however, it is apparent that he is often difficult to deal with, and that he can be uncooperative or combative. His apparent lack of insight into the mother’s condition, and the importance of each parent working to negotiate issues relating to the child shows a lack of responsibility with respect parenthood.
I also note that the conduct of the mother, which appears to be largely driven by her anxiety condition, makes her difficult to deal with at times, however, this must be seen in light of her psychological condition, and the steps that she has taken to work on these issues in the past. The mother appears to have far greater insight into her own frailties and responsibilities as a parent, than the father displays.
The various incidents of family violence are serious, and have had particularly strong impact given the mothers frailties. Ultimately, however, the case was not put on the basis that the child is at risk of violence from the father. The evidence of the family report writer was to the effect that the child’s relationship with the father should be preserved, although changeovers should not be with the parents interacting. Clearly the mother should be protected from any further possibilities of domestic violence form the father by arrangements for changeovers to be at school or supervised by a changeover centre, or facilitated by friends or relatives.
It is obviously relevant that an order should be made to minimise the institution of further proceedings and to minimise the opportunities for disputes parties. In this regard it is appropriate to make final orders. I am not persuaded that he father is likely to attend and benefit from counselling.
In this case I have no hesitation in accepting that the child has a meaningful relationship with both parents and that this is important to continue. However, the matters litigated in this case show that there are real risks, due to the nature of the conduct of the father. Family violence has not been directed at the child, but remains a real risk for the mother.
Parental Responsibility Orders
Stepping back and considering the matter as a whole, it appears clear that the parties will be unable to effectively negotiate about the child’s long-term issues and that it would be unworkable to order that there be equal shared parental responsibility. Orders that provide for the mother to have parental responsibility, and the power to make decisions after consulting with the father are more appropriate, as the mother has a demonstrated capacity to act in the child’s best interests.
I am persuaded that the mother will comply with such an order and notify the father of significant matters to allow him to provide her with his opinion. I am also satisfied that if he raises matters that are genuinely of significance to the child’s best interests, the mother would take them into account, and in the event that she fails to do so, the father will be aware of the decision that is being made and always has the opportunity to apply to the court.
Spend time arrangements
Weekends were largely agreed at the outset of the hearing, provided the father is living close by. As the hearing progressed the ICL and the Mother moved to seek supervised time (assuming that the mother remained in accord with the ICL). Given the age of the child, and that she has been enjoying having regular weekends with the father for some time, on balance I find that it is in X’s best interests for her to have ongoing weekend contact with the father.
I am not persuaded that in this case supervised-only time is warranted, particularly in light of the evidence of the ICL both as to the child’s relationship with the father and the level of risks involved. Nor am I persuaded that it is in the child’s interests to have time with the father in the alternate week each fortnight as this would, in my view, be quite disruptive for the child in the context of the unusual features of this case.
Having regard to the changeover difficulties, I am persuaded that changeovers at school are the most appropriate course, as this avoids the parties dealing with each other. I see no difficulty using one of the father’s relatives (and if they are unavailable a changeover centre) for changeovers at other times. Whilst changeovers at B Shopping Centre have been used for some time, it is less than appropriate, given the difficulties with the father’s past behaviour toward the mother unless one of his relatives undertakes the changeover on his behalf.
I have not made orders for the father to attend courses or counselling, however remain hopeful that he will do so, if only to assist him to maintain a meaningful relationship with X as she becomes older. If, as she grows older and starts to test parental boundaries, she is exposed to even a small part of the anger that he has exhibited toward the mother it is likely to fracture his relationship with her. Only with time will it become clear whether the father can put X’s needs to the forefront, above his own needs.
I am generally persuaded that orders as were initially proposed by the mother prior to the trial are appropriate, together with orders to ensure that:
(a)During COVID-19 lockdowns the child should remain at the mother’s household to minimise her contact with others;
(b)Changeovers should occur at school, and when they cannot at the shopping centre only if they can be facilitated by the father’s family members without the presence of the father, and if not at the contact centre closest to the mother’s residence;
(c)Ensuring that the child’s travel time to school (when in the father’s care) is no greater than 30 minutes;
(d)In the event that the father is working on Friday night:
(i)The contact commence on Saturday at 11am;
(ii)In the event the father is working both Friday and Saturday, contact commence at 11am Sunday; and
(iii)The father notify the mother as soon as he is aware of his working hours.
(e)The parties continue to use a parenting app for communication.
The balance of the orders provide for the usual matters of ensuring sharing of special days, sharing of information about X and living arrangements, details about travel with X, and restraints on exposing X to denigration of either parent.
I do not make orders for the child to obtain a passport or travel as there is no present travel proposal, nor evidence that any particular steps are required for the child to exercise her potential Country F citizenship rights.
I therefore make Orders accordingly.

I certify that the preceding two hundred and twenty-three (223) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riethmuller.
Associate:
Dated: 31 May 2021

[2021] FCCA 1200

31 May 2021

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Breach

Procedural Fairness

File number(s):	DGC 719 of 2018
Judgment of:	JUDGE RIETHMULLER
Date of judgment:	31 May 2021
Catchwords:	FAMILY LAW – Parental responsibility –spend time arrangements – family violence allegations – intervention order – COVID-19 restriction breaches – child’s medical needs
Legislation:	Family Law Act 1975 (Cth), s. 60CC Migration Regulations 1994 (Cth), r. 820.221
Cases cited:	Re Andrew [1996] FamCA 43
Number of paragraphs:	223
Date of last submissions:	8 September 2020
Date of hearing:	24, 25 and 26 August and 3, 4, 7 and 8 September 2020
Place:	Melbourne (via Microsoft Teams)
Solicitor for the Applicant:	Hartleys Lawyers
Counsel for the Applicant:	Ms Dosanjh
Solicitor for the Respondent:	Romer Maud Family Lawyers
Counsel for the Respondent:	Ms Healey
Solicitor for the Independent Children's Lawyer:	Wilkinson & Associates
Counsel for the Independent Children's Lawyer:	Ms Dunlop

DGC 719 of 2018
BETWEEN:	MR ROUCO Applicant
AND:	MS SECADA Respondent
ORDER MADE BY:	JUDGE RIETHMULLER
DATE OF ORDER:	31 MAY 2021