Roussel and Nabav
[2017] FCCA 2968
•1 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ROUSSEL & NABAV | [2017] FCCA 2968 |
| Catchwords: FAMILY LAW – Parenting – competing applications for final parenting orders – best interests of child – orders made. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA |
| Applicant: | MR ROUSSEL |
| Respondent: | MS NABAV |
| File Number: | PAC 1617 of 2010 |
| Judgment of: | Judge Newbrun |
| Hearing dates: | 30-31 August 2017 |
| Date of Last Submission: | 27 November 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 1 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fermanis |
| Solicitors for the Applicant: | Phillip A Wilkins & Associates |
| Counsel for the Respondent: | Mr Kenny |
| Solicitors for the Respondent: | Mark Brown & Associates |
ORDERS
That the mother shall have sole parental responsibility for the child [X] born (omitted) 2007.
That the child shall live with the mother.
That unless otherwise agreed, the father shall spend time with the child for 2 hours each 4th Saturday, or Sunday, at the (omitted) Contact Service.
The father shall pay the costs of supervised contact at the (omitted) Contact Service.
The mother shall facilitate the child spending time with the father, paid for by the father, supervised by Phoenix Rising for up to 6 hours every 4th Saturday, in lieu of time at (omitted) Contact Service, with the father to have a discretion as to through which service he exercises supervised time, and the father shall provide to the mother 2 clear days’ notice by text message in the event that he proposes that time be supervised by Phoenix Rising.
In the event that the father is unable to exercise time on any occasion due to the child’s illness, make up time shall be provided on the next following weekend that the child is well enough to attend for time.
The father shall be permitted to spend unsupervised time with the child pursuant to any agreement made with the mother, such agreement to be expressed in writing (for example, through email correspondence).
That both parties shall keep the other informed of their residential address, landline and mobile telephone numbers, and shall notify the other, within 24 hours of any change thereto.
That each party keep the other informed of any medical emergency that may involve the child, or any significant medical treatment that the child may receive whilst the child is in the care of that parent.
In the event of the child suffering a medical emergency, requiring medical attention whilst spending time, or living with either parent:
(a)The other parent is to be notified as soon as practicable;
(b)The other parent is to be provided with full details of the practitioner or medical facility upon which the child attends as soon as practicable;
(c)The medical practitioner or facility is to be advised that both parents may have access to the child’s medical records, and information retained by them upon request.
The mother shall do all things and sign all documents necessary to authorise, or enable, the principal of any school the child may attend from time to time, to provide to the father, at the father’s expense, copies of all school reports, photographs, notifications or school events to which parents may ordinarily be invited.
The father shall not attend the child’s school nor any school related event at a community venue.
The father shall be permitted to contact the child’s school for the purpose of discussing the child’s progress, and these orders shall be sufficient authority for him to do so.
That both parties be restrained from denigrating the other parent in the presence, or hearing of the child, or permitting or causing, or allowing any other person to do so.
The mother shall provide to the father, details of the child’s general practitioner, and any other medical specialist including counsellor, or psychologist, that the child may attend upon, from time to time, and the father shall be permitted to contact any medical practitioners/specialist/counsellor to discuss the child’s condition or treatment, and these orders shall be sufficient authority for him to do so.
The mother shall be permitted to travel overseas with the child at any time.
Notation: After the child has reached 13 years of age, the father should be permitted to make an application to the court seeking to spend unsupervised time with the child.
IT IS NOTED that publication of this judgment under the pseudonym Roussel & Nabav is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1617 of 2010
| MR ROUSSEL |
Applicant
And
| MS NABAV |
Respondent
REASONS FOR JUDGMENT
Introduction
This was the final hearing of competing parenting proposals in relation to the child [X] born (omitted) 2007. The child has a brother [Y] born (omitted) 1997, who is not the subject of these final parenting proceedings.
Competing proposals
The orders sought by the father were ultimately set out in exhibit C:
1. The mother have sole parental responsibility for the child [X] born (omitted) 2007.
2. The child shall live with the mother.
3. The child shall spend time with the father as follows:
a. For a period of two (2) months from 10am until 12noon each alternate Saturday;
b. For a period of two (2) months from 10am until 2pm each alternate Saturday;
c. For a period of two (2) months from 10am until 4pm each alternate Saturday;
d. Thereafter from 10am until 6pm each alternate Saturday;
e. On Father’s Day from 10am until 6pm;
f. On the first day of each (omitted) festival from 10am until 2pm;
g. For two additional days during the first half of the school holiday period from 10am until 6pm on Tuesday and Thursday or as otherwise agreed between the parties in writing;
h. At such other times as agreed between the parties in writing.
4. For the purpose of order 3:
a. The child’s time with the father shall occur in the Sydney Metropolitan Area;
b. Without admissions, the father shall be restrained from bringing the child in to contact with Ms J during periods he is spending time with the child including changeover.
5. Changeover shall occur at the (omitted) Contact Service or at McDonalds (omitted) in the event the (omitted) Contact Service or not available.
6. The child shall have telephone communication with the father each Monday and Thursday between 7pm and 7:30pm with the mother to place the call to the father’s mobile telephone.
7. That both parties shall keep the other informed of their residential addresses, landline and mobile telephone numbers and notify the other within twenty-four hours of any change thereto.
8. That each party is to keep the other informed of any medical emergency that may involve the child or any medical treatment that the child may receive whilst the child is in the care of that parent.
9. In the event of the child suffering a medical emergency requiring medical attention while spending time or living with either parent:
a. The other parent is to be notified as soon as practicable;
b. The other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable;
c. The medical practitioner or facility is to be advised that both parents have access to the child’s medical records and information retained by them upon request.
10. The mother shall do all things and sign all documents necessary to authorise or enable the Principal of any school the child may attend from time to time, to provide to the father, at the father’s expense, copies of all school reports, photographs, notifications or school events to which parents may be ordinarily invited.
11. That both parties be restrained from denigrating the other parent in the presence of hearing of the child, or permitting, causing or allowing any other person to do so.
12. The father shall be permitted to contact the child’s school for the purposes of discussing the child’s progress and these orders shall be sufficient authority for him to do so.
13. The mother shall provide to the father, details of the child’s general practitioner, and any other medical specialist including counsellor or psychologist the child may attend upon from time to time and the father shall be permitted to contact any medical practitioners/specialist/counsellor to discuss the child’s condition or treatment, if any, and these orders shall be sufficient authority for him to do so.
14. That until further order, or else subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975, each party, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child [X] born (omitted) 2007 from the Commonwealth of Australia.
15. It is requested that the Australian Federal Police give effect to this order by placing the names of the said child on the Family law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until the child attains 18 years of age or until the court orders its removal, or with the consent of all parties.
The orders sought by the mother were ultimately as follows (see her proposed Minute of Order attached to her solicitor’s letter of 4 September 2017 addressed to the court):
1. That the mother shall have sole parental responsibility for the child [X] born (omitted) 2007.
2. That the said child shall live with the mother.
3. That unless otherwise agreed, the father shall spend time with the child for 2 hours each 4th Saturday, or Sunday, at the (omitted) Contact Service.
4. The father shall pay the costs of supervised contact at the (omitted) Contact Service.
5. The mother shall facilitate the child spending time with the father, paid for by the father, supervised by Phoenix Rising for up to 6 hours every 4th Saturday, in lieu of time at (omitted) Contact Service, with the father to have a discretion as to through which service he exercises supervised time, and the father shall provide to the mother 2 clear days’ notice by text message in the event that he proposes that time be supervised by Phoenix Rising.
6. In the event that the father is unable to exercise time on any occasion due to the child’s illness, make up time shall be provided on the next following weekend that the child is well enough to attend for time.
7. That both parties shall keep the other informed of their residential address, landline and mobile telephone numbers, and shall notify the other, within 24 hours of any change thereto.
8. That each party keep the other informed of any medical emergency that may involve the child, or any significant medical treatment that the child may receive whilst the child is in the care of that parent.
9. In the event of the child suffering a medical emergency, requiring medical attention whilst spending time, or living with either parent:
(a) The other parent is to be notified as soon as practicable;
(b) The other parent is to be provided with full details of the practitioner or medical facility upon which the child attends as soon as practicable;
(c) The medical practitioner or facility is to be advised that both parents may have access to the child’s medical records, and information retained by them upon request.
10. The mother shall do all things and sign all documents necessary to authorise, or enable, the principal of any school the child may attend from time to time, to provide to the father, at the father’s expense, copies of all school reports, photographs, notifications or school events to which parents may ordinarily be invited.
11. The father shall not attend the child’s school nor any school related event at a community venue.
12. The father shall be permitted to contact the child’s school for the purpose of discussing the child’s progress, and these orders shall be sufficient authority for him to do so.
13. That both parties be restrained from denigrating the other parent in the presence, or hearing of the child, or permitting or causing, or allowing any other person to do so.
14. The mother shall provide to the father, details of the child’s general practitioner, and any other medical specialist including counsellor, or psychologist, that the child may attend upon, from time to time, and the father shall be permitted to contact any medical practitioners/specialist/counsellor to discuss the child’s condition or treatment, and these orders shall be sufficient authority for him to do so.
15. The mother shall be permitted to travel overseas with the child at any time.
IN THE EVENT THAT THE COURT ORDERS UNSUPERVISED TIME:
16. That commencing 14 October 2020, the child shall spend time with the father as follows:
a. For a period of 2 months from 10.00am to noon each 4th Saturday;
b. For a period of 2 months from 10.00am until 2.00pm each 4th Saturday;
c. For a period of 2 months from 10.00am until 4.00pm each 4th Saturday;
d. Thereafter from 10.00am until 5.00pm each 4th Saturday;
e. On father’s day from 10.00am until 5.00pm;
f. On the second day of each (omitted) festival from 10.00am until 2.00pm;
g. At such other time as are agreed between the parties in writing.
17. That for the purpose of order 16:
a. The child’s time with the father shall occur in the Sydney metropolitan area;
b. Without admissions, the father shall be restrained from bringing the child into contact with Ms J during periods of him spending time with the child, including changeover;
c. Changeover shall occur at the (omitted) Contact Service or at McDonalds (omitted), if, in the event that the (omitted) Contact Service is closed, and not available, and any cost associated with supervision of changeover at (omitted) Contact Service shall be paid by the father.
18. The child shall have telephone communication with the father each Tuesday between 7.00pm and 7.30pm, with the mother to place the call to the father’s mobile telephone and such telephone communication to commence after the father commences spending unsupervised time with the child.
Background
The mother was born in (country omitted) on (omitted) 1972 and first entered Australia on (omitted) 1985.
The father was born in (country omitted) on (omitted) 1971. He entered Australia in about 1986.
The parties married in (omitted) 1991. They separated on a final basis in about late August 2009 under the one roof, and then finally physically separated in January 2010.
On 6 August 2010 the parties entered into consent final parenting orders in relation to the child and her brother [Y] (born (omitted) 1997). Those orders provided, inter alia that the child and her brother live with the mother; the child and her brother spend time with the father each alternate weekend from 5PM Friday to 6PM on the following Sunday (but, in respect to the child, this time was to occur after the child’s fourth birthday, before which time the father’s time with the child was to be spent on a lesser basis, but unsupervised), and for one week of each school holiday period, and at other times.
On 2 February 2015, the parties agreed to consent interim orders that,
Unless otherwise agreed, the father shall spend time with the child two hours per fortnight on a Saturday or a Sunday at (omitted) Contact Centre in (omitted), from such time that (omitted) Contact Centre makes appointments available.
The father was to pay the costs of such supervised contact.
Following the above interim orders, the father began to spend supervised time with the child at the Contact Centre, initially for two hours each alternate Saturday, initially at the (omitted) Contact Centre, and thereafter at the (omitted) Contact Service at (omitted).
On 18 December 2015 these parenting proceedings were placed in the call over on 16 September 2016. On 16 September 2016, the proceedings were listed for a two day final hearing in relation to parenting on 8 February 2017. On that date, the final hearing did not commence and it was adjourned to 30 August 2017 with a two day hearing estimate.
The father now seeks, inter alia, to spend unsupervised time with the child in accordance with his proposed orders in Exhibit C, which is opposed by the mother.
Material relied upon
The father’s documents comprised:
a)Amended Initiating Application filed 7 June 2017;
b)Affidavit of Mr Roussel, Applicant Husband, filed 8 August 2017.
The mother’s documents at the final hearing comprised:
a)Third Amended Response filed 19 January 2017;
b)Affidavit of Ms Nabav, Respondent Wife, filed 7 August 2017;
c)Affidavit of [Y] filed 19 January 2017; and
d)Affidavit of Ms K, Psychologist filed 7 August 2017.
The following documents were tendered and became Exhibits in the proceedings:
a)Exhibit A: Sleeve 11, NSW Police, Event 29 April 2016, (omitted) (Tab M7, 2 pages; M1-M9).
b)Exhibit B: 2 photographs of daughter, dated on back.
c)Exhibit C: Father’s proposed minute of order
d)Exhibit D: Sleeve 4, Ms T, (omitted) Psych (yellow tabs 1 – 7).
e)Exhibit E: Sleeve 9, (omitted) High School, (tabs F7, three pink tabs).
f)Exhibit F: Family Report of Mr M, Child Dispute Conference memorandum to court dated 13 August 2014, Child Inclusive Conference memorandum to Court dated 4 November 2014.
g)Exhibit G: Undertaking by Ms J, dated 9 February 2017.
h)Exhibit H: Sleeve 3 & Sleeve 13, (omitted) Contact Service (tabbed pages).
Evidence
The mother was an impressive witness. She was not significantly shaken in cross examination. On the other hand, the father was not a satisfactory witness.
Following the father’s cross examination, it was demonstrated that the father’s Affidavit evidence relating to his residential address, allegedly being at (omitted) (a suburb close to the mother’s residence at (omitted), and being where the father had allegedly relocated to) was not truthful, and that his primary residential address is at (omitted), near (omitted), living in the same residence as Ms J, the person in respect to whom the father obtains a carer’s pension from Centrelink. In this context, the Court refers to the father’s cross examination evidence that in the previous week he had spent some five nights living at (omitted); his statement that, “I live in both accommodations” (the father referring to both (omitted) and (omitted)); his statement to the Court that he lives mainly at (omitted); and his admission that his name went on the lease for the premises at (omitted) in about June 2017, and that he pays about $200 per fortnight to the Housing Commission in that regard, being his share of the rent for the (omitted) premises.
Generally, the Court found the father to be evasive, and lacking in credit, when answering questions on a range of topics, including as to whether the father had asked the child questions (for example, as to the child’s brother leaving his bedroom light on when sleeping); as to why he had not returned the child’s brother’s logbooks and birth certificate to the child’s brother; and as to Ms J’s report to the police about an incident involving the father in connection with a set of keys.
The Court formed the view during cross examination that the father would often retreat to a response that he had no recollection of a particular matter, with a view to avoiding giving truthful evidence.
In this context, it is not without relevance that the family consultant’s observations in the Child Dispute Conference Memorandum to Court dated 13 August 2014, stated, inter alia, under the heading “Family safety factors”, that the father was highly evasive and initially misleading in the information he provided in regards to the mother’s allegations against him of family violence and his mental health.
Where the evidence of the mother and the father are in conflict, the Court prefers the evidence of the mother.
The Court also prefers the Affidavit evidence of the child’s brother where in conflict with the father’s evidence; this evidence of the child’s brother was not successfully disturbed following his cross examination.
There were aspects of the child’s brother’s oral evidence which were perhaps coloured by his past negative experiences with the father, namely his evidence that he did not want the child to have a loving relationship with the father into the future, and that he was surprised the child had told the father she loved him. Nevertheless, the Court found the child’s brother to be an honest and straightforward witness and again, his Affidavit evidence was not successfully challenged in cross examination.
Following the parties’ final separation, the child and her brother remained in the mother’s care and they continued to reside in the former matrimonial home. In about August 2010, that home was transferred into the mother’s sole name.
The mother has been and continues to be the primary carer of the child.
The father’s paternal extended family live in a residence at (omitted).
As a young teenager, the child’s brother had difficulty accepting the boundaries which the mother imposed on his behaviour whilst he lived in her household. On occasions when he failed to accept the mother’s conditions, he stayed with the father for a number of short periods of time prior to commencing to live permanently with the father from February 2013 to April 2015. In April 2015, the child’s brother commenced residing with the parents of his school friend. The child’s brother returned to live permanently with the mother and the child in early January 2016.
In November 2015, the child’s brother completed the Higher School Certificate. He achieved a poor result.
The mother is concerned that if the child was in the father’s care for any significant period of time, that the father would, in the same manner as with the child’s brother, be careless about the child’s attendance at school and completion of homework.
Following the parties’ separation, the mother encouraged and supported the child’s brother having a relationship with the father.
Following separation, the father neither sought to, nor spent time with the child and her brother until March 2010. Thereafter, the father spent time with them, until December 2010 about every second weekend, and during the September/October school holiday period.
The father moved to Canberra in about December 2010. In about March 2011 the father moved to Darwin. He spent time with the child’s brother in Sydney on about 3 occasions. He relocated from Darwin in August 2012.
The child attends (omitted) School and is in Year 4. She is progressing very well at school. She participates in extracurricular activities such as swimming. In July 2017, the child sat an exam for entry to an opportunity class in 2018. The child has been a high achiever throughout her school career and has received numerous awards and certificates.
During the period from about March 2010 until December 2010, the father saw the child on an ad hoc basis on about 8 occasions. He saw the child in mid-January 2011 for about 4 hours and thereafter did not see her until May 2015. From about January 2011 until about August 2012, the father generally spoke to the child by telephone about once per month. The father did not communicate in any significant way with the child between about August 2012 and May 2015 when he commenced time with her at the Contact Centre.
On specific occasions from 2011 to 2013, the father made certain requests to the mother to spend time with the child. The mother did not respond to these random requests because of the father’s late notice, and because the father had given the mother no indication that he would be prepared to be consistent in having time with the child.
The child’s time with the father at a Contact Centre has generally been positive. The child and the father are affectionate to each other during this time.
However, during the child’s time with the father at the Contact Centre a number of incidents occurred which caused the child to be distressed or anxious following time with the father.
One incident was in about mid-May 2015 when the child told the mother after the first occasion of time at the Contact Centre that the father had given her some lollies. The child had looked at the lolly package but she couldn’t eat it because it wasn’t (omitted). The child told the mother that the father had told her to give them to her friend at school, and so the child took it because she didn’t want to upset the father.
In about June 2015, following supervised time with the father the child brought home a bracelet. She told the mother that the father had told her that it was a gift from his friend. The child told the mother that she didn’t feel comfortable telling the father that she could not accept gifts from strangers, so she took the bracelet so that the father would not get mad.
In about July 2015, after a supervised contact visit, the child told the mother that while she was playing outside at the centre, the father picked her up and told her to wave at his friend sitting in the car. The child just put her face down and started kicking her legs until the father put her down. The father asked the child why she didn’t wave to his friend, and the child just shrugged, because she was scared to tell him that she was not allowed to wave to strangers, in case the father got upset with her.
In about August 2015, the child told the mother after a supervised contact visit, that the father had said to her that he would take her fishing. The child had said, “May be, maybe not.” The child told the mother the father looked really angry and asked her what she meant by that comment, and the child felt scared, and her heart was beating really fast, and she shrugged her shoulders. The child told the mother that she could tell that the father really wanted to know, but the supervisor was there, so the father didn’t ask any more questions.
In (omitted) 2016, after the child’s supervised time with the father, the child said to the mother that the father had told her that he had called her on the mother’s mobile telephone on her birthday but that no one had answered. The father had not attempted to speak to the child by telephone at any time during (omitted) 2016. Within a few days of this conversation, the mother had a conversation with the child about seeing the father, which was initiated by the child, and the child told the mother that she would not like to go anywhere else where there were not supervisors, with the father, because she did not trust the father because he had lied to her.
In about mid-December 2016, the child told the mother, following a supervised contact visit, that the father had told her that he had moved back to (omitted) and that when he can take her to (omitted) the child could ride on a big bike. The child asked the mother not to ever let her go to (omitted) or anywhere else with the father because the supervisors would not be there.
On numerous occasions when collecting the child from the Contact Centre, the father’s car was parked in the street adjacent to the entrance of the Contact Centre which the mother had been directed to use by the centre staff. On a number of those occasions, a Ms J, and in relation to whom the father has applied for a carer’s pension from Centrelink, was in the car. On those occasions, the mother was upset and intimidated by the woman being present.
As a result of the father’s failure to comply with the Contact Centre’s rules relating to the father’s car occupied by the above woman, and being situated within 500m of the centre, the father’s supervised time was suspended in about early January 2017, and accordingly the father did not have time with the child from about mid-December 2016 until about 11 February 2017. Following provision by Ms J of an undertaking to the Court (Exhibit G) the father’s time with the child was restored at the Contact Centre.
At the end of January 2017, the mother spoke to the child about seeing the father away from the Contact Centre. The child told the mother that she would not want to go with the father anywhere else because the supervisors wouldn’t be there.
Following a supervised visit on 25 February 2017, the child told the mother that the father told her that he would take her to a restaurant. The child stated that she didn’t like what the father was saying to her, and she didn’t want to go with him, so she just kept quiet because she didn’t want to make the father upset, and the supervisor did not say anything to the father. At this time the mother looked at the child and she observed that she was frowning, and appeared both distressed and anxious.
After a supervised visit on 8 April 2017, the child told the mother that the father had said to her very quietly to tell her brother to call the father because it was a serious matter. The child told the mother that she thought the father did not want the supervisor to hear. At this time the mother observed the child to be frowning and appeared anxious.
On 17 June 2017, when the mother approached the Contact Centre in anticipation of collecting the child, she noticed Ms J, sitting in the front passenger seat of the father’s car being situated within 500m of the centre, and the mother reported that to the supervisor at the centre.
From the mother’s observations, the child has developed anxiety about the father and arrangements for time with the father on the limited supervised basis, which occurs now. The mother is of the view that if time for the child with the father was increased, then her anxiety would also increase and that would have a negative impact upon her.
In June 2017, the child made a number of complaints to the mother about having a stomach ache and the child was taken to the local doctor who could find no physical problems. In late June 2017 the school phoned the mother and told her that the child was ill. Over the past two months, the child has attended at school sick bay on about six separate occasions complaining of a stomach ache.
During July 2017, the child had a conversation with the mother. The child told the mother that she gets really worried about something. She told the mother that sometimes at home all of a sudden she runs up to the mother and gives her a tight hug because she can hear a truck or a beep. The child told the mother that she believes this is the father, because he told her that he drives past the family home, and the child’s school, in his truck and beeps. The child told the mother that even at school when she hears a truck drive past, or a beep, she gets butterflies in her stomach. She gets scared and she wants to hear the mother’s voice. The child told the mother that she thinks the father might come to her school office and take her, but she doesn’t want to go anywhere with the father. The child told the mother that the father might tell the school office staff that he is the child’s uncle, and they wouldn’t know what the father looks like. The child told the mother that she would like the mother to talk to her teacher about this issue. The mother then did proceed to speak with the child’s teacher and advised her of the mother’s observations about the child’s anxiety.
The father missed time with the child at the Contact Centre, prior to it being suspended on 4 occasions in 2016, and missed 2 further occasions since the reinstatement of time in 2017. On 2 occasions the child had been ill and could not attend.
Since the parties’ separation, the father has lived in about 13 different premises; these premises have been mainly in the state of New South Wales, but have also included Canberra and Darwin.
The father has been in 4 different de facto relationships since the parties separated. The mother became aware of Ms J only as a result of reading about her in the Family Report.
After the parties’ separation, the father did not provide any financial assistance to the mother for the support of the children until about June 2010 when he commenced to pay child support. He paid this until August 2012. As a result of the child’s brother living with the father, the mother was assessed to pay child support and she paid child support to the father from July 2013 until mid-April 2015. In addition, the mother provided financial support for the child’s brother by buying him clothes and other items. The mother also supported the child’s brother financially during 2015. She paid an invoice for $440 from the child’s brother’s school in May 2015. As at 30 June 2017, the father was in arrears of child support to the sum of about $2,400 (in cross examination the father stated that “eventually” he would pay down the arrears). He is presently assessed to pay $35 per month.
The mother, the child and the child’s brother continue to reside in the former matrimonial home. The child and her brother each have their own room. The home is located about five minutes’ drive from the child’s school.
The maternal grandparents live about 3 minutes’ drive from the mother’s home. The mother’s sister resides with the maternal grandparents. The mother’s 2 brothers (one of the brothers has two young children) live in Sydney and the mother’s family generally sees them about once a week. The child and the mother usually see the maternal grandparents and the mother’s sister most days of the week. The child has a very close and loving and affectionate relationship with the maternal grandparents and the mother’s extended family.
The mother is employed on a permanent part-time basis as a (occupation omitted) with the (employer omitted) at (omitted). Her income is about $45,000 per annum and she supports herself and the child from that income. She works 20 hours per week Monday to Thursday from 10AM to 3PM.
The child’s brother is now employed on a permanent full-time basis as a (occupation omitted), and he works five days per week and pays board of $100 per week.
The father was controlling of the mother from early on in their relationship by trying to restrict the mother’s actions in contact with her extended family.
The first occasion that the father was physically violent to the mother occurred in the second half of 2000. An argument began. The father punched the mother on her nose with a clenched fist. She had a bruise on her nose. The mother did not seek medical treatment or report the assault to the police as she was embarrassed from the occurrence.
In about early 2001 the mother returned home from shopping with her sister. It appeared to the mother that the father was angry that she had been out with her sister. The father grabbed the mother with his hand around her throat, choking her, and shouted at the mother saying, “Don’t you ever compare your family to mine.” The mother slid down onto the floor. The father then kicked her twice on her right thigh. The next day the mother observed bruising on her throat and thigh.
In late 2001, following an argument with the father, the father hit the mother repeatedly with his open right hand on her left ear and head. The mother reported this matter to the police the next day. An Apprehended Violence Order was made for the mother’s protection at the Local Court at Liverpool on 19 February 2002 for a period of 2 years. The father did not attend Court.
Shortly after the issue of the above Apprehended Violence Order against the father, the mother returned home from work and the paternal grandmother was there. She said to the mother, “what did you do that he hit you?” The paternal grandmother said to the mother, “We are women and we must let things like this go, because their fathers and grandfathers all behave in a similar manner.”
In about 2002 or 2003 the father again assaulted the mother in the garage of the home. The parties had had an argument. The mother was sitting on the steps of the garage, and the father was behind her. He kicked her hard on the back twice and shouted at her, “You look at me when I talk to you”, or words to that effect. Later that day, the mother reported the assault to the father’s sister. The next day the mother noticed bruising on her back and she had pain in her back for about a week later.
On the child’s brother’s first day of school in 2003, the parties had a discussion, after the father had received a telephone call from the paternal grandmother, and during which the father said to the mother, “You don’t tell me what to say to my mother.” Without warning, the father then slapped the mother on the left side of her face with his open hand.
A further incident occurred in about 2003. The mother had applied some ointment to a wound on the child’s brother, and he was upset. When the mother came downstairs, the father hit the mother without warning on her left ear with his open hand.
The mother estimates that from the time the father first assaulted her in 2000, until their separation in January 2010, the father physically assaulted her on about 20 occasions.
The father was frequently aggressive, belligerent and intimidating towards the mother during the marriage. If the mother said or did something with which the father did not agree, the father’s usual response was to scream at the mother, even if they were in a public place, and he shouted such things as, “Fuck you”; “You’re the worst woman I’ve ever known”; “You bitch”, or words to that effect. That behaviour of the father occurred in front of the child and her brother on numerous occasions.
On 18 March 2010, whilst at home with the child and her brother, the father attempted to break into the house. The mother called the local police, and as a result of their attendance, the father left. The child and her brother were very distressed by the event.
The mother remains frightened of the father, because of his violence and his controlling behaviour towards her during the period of their relationship and following their separation.
Since mid-2010 the father and the mother have had minimal contact. The mother has only spoken to the father on one occasion since 2010. She has only sent the father 2 emails and they have exchanged less than about 50 text messages since separation. In certain text messages sent by the father to the mother he has often been critical and demeaning of the mother and her extended family.
The mother does not believe that she could ever regularly or frequently communicate with the father in the future. It makes her frightened, anxious and distressed to think about having to do so.
Since about early 2016, the mother has been extremely concerned and anxious about the prospect of the father having unsupervised time with the child, and throughout 2016, the mother became more and more anxious about the prospect of that occurring. Since the commencement of these parenting proceedings by the father, the mother has had a number of counselling appointments, initially with the counselling organisation which was arranged through her employer, where she saw two counsellors, the second of whom was Ms T. In January 2017, the mother was diagnosed by Dr S as suffering from depression and anxiety, and prescribed Zoloft, an antidepressant, which the mother continues to take. In March 2017, the mother was referred to another psychologist, Ms K at (omitted), and she is continuing to see Ms K. The mother began seeing Ms K in about May 2017 and continues to see her on an approximately fortnightly basis.
Following the mother’s return from a holiday in (country omitted), with the child and her brother, on 31 December 2016, the mother felt panicky and, for a period of two or three weeks she felt that she was not able to cope. She then attended upon her GP, Dr S, and was prescribed the antidepressants as above.
At this time, the mother felt that she was not able to cope with life on a day-to-day basis, and the child and her brother stayed with the mother at the maternal grandparent’s home so that the mother’s sister and the maternal grandparents could assist her with the care and supervision of the child. The mother felt that there was no hope that anyone could help her protect the child and keep her safe from what the mother perceived to be the threat that the father posed to the child’s innocence and stability. The mother was fearful, and she continues to be fearful, that the father’s negative attitudes towards women, and the example that he sets by his lifestyle would have a very negative impact upon the child and upon her education. The mother has observed what she regards as the very negative impact of the father upon the child’s brother, and the mother is overwhelmed by the thought that the father will have a similar negative impact upon the child’s life at an age when she is extremely vulnerable.
The mother returned to work on 10 January 2017, and her day-to-day functioning improved. However she frequently felt overcome by distress due to the prospect of the father having time with the child. The mother frequently has a choking sensation which is often associated with the loss of breath, and she feels that she is unable to keep the child safe. She frequently cries involuntarily, and becomes anxious and upset at small things that would otherwise not worry her.
In January and February 2017, the mother had six counselling sessions, but she still felt that she was not coping well. At her work she was a fire warden, but on 15 February 2017, she resigned from that role, because she was fearful of how she would react in an emergency situation when she felt that she was hardly coping on a day-to-day basis. The mother found that although she had presently been quite houseproud, she did not have any motivation to do any house work other than the bare essentials. She found it difficult to concentrate and she felt that she was not able to care for the child as well as she could as she had always done in the past.
The mother throughout 2017, has often had difficulty falling asleep, and she most usually has interrupted sleep. She often wakes each morning feeling exhausted, and that she is not able to cope. The mother is extremely emotional and often finds herself crying whilst riding on the bus to or from work. The antidepressant medication which the GP prescribed in January 2017 provided the mother some relief from the way she was feeling, though she continued to have interrupted sleep and frequently felt exhausted and emotionally unable to cope. The mother has never previously taken anti-depressant medication.
The mother does not believe that she will have the emotional, physical or psychological strength to cope if she finds that the child begins to suffer the same problems that her brother experienced from what the mother perceives was the father’s negative influence upon the brother.
The mother and father were raised as (nationalities omitted). The parties agreed during the early years of the relationship to raise the children as (nationalities omitted). The child and her brother had both been raised in the (omitted) faith, and the mother, the child and her brother continue to practice the (omitted) faith as a family. According to the mother, the father has demonstrated his failure to abide by (omitted) values by drinking alcohol in front of the child’s brother, and encouraging him to do so, and entering into de facto relationships.
On 6 May 2014 a notation was made by the Court referring to the father notifying the mother that he had enrolled in a parenting after separation course, following which the father would spend time with the child. The father did not advise the mother that he had enrolled in such a course until about mid-August 2014. Thereafter the mother made enquiries with organisations that the father had asserted he had made enquiries with, with a view to attending a parenting course, and as a result of those enquiries, the mother did not believe that the father had made any reasonable attempt to enrol in a suitable parenting after separation course.
On 4 December 2014, by consent, an interim order was made that the father undertake individual counselling focusing on how to re-establish his relationship with the child, as recommended by family consultant Ms E. The father attended a few counselling sessions at Interrelate at (omitted) at some stage; in cross examination, the father stated that he could not state what he learnt in counselling as it was a while back and years ago.
The mother completed a Keeping Kids in Mind program on 4 March 2015. The father also completed such a course at some stage. The father also completed a Building Connections Parenting Seminar.
The mother is very concerned and anxious about the father having ongoing time with the child on an unsupervised basis, because of the way the father previously treated the child’s brother and the mother, and because of the mother’s observations of his character, and she has no confidence that the father will provide a consistent or positive role model for the child. The mother expects that if the father is given time with the child unsupervised that he will denigrate the mother and the child’s brother, and attempt to poison the child’s relationship with the mother and the child’s brother. She is extremely distressed about the prospect of unsupervised time with the father causing the child to change from a happy, positive, delightful little girl, into a child who is anxious and confused because of the way the mother expects the father will speak to her and because of the mother’s certainty that he will not be consistent in maintaining a relationship with her.
The mother’s view is that the father has no respect for women.
The mother acknowledged that the child enjoys spending time with the father supervised at the Contact Centre. She accepted that there was a benefit for the child to spend time with the father in this context.
The mother was cross-examined in relation to the consent parenting orders of 6 August 2010. She acknowledged the allegations made by her of family violence against the father prior to that date. She was legally represented when those orders were made. Whilst the mother acknowledged that the father had not physically assaulted her since those orders, she gave evidence that the father had placed the child’s brother at risk and had threatened to hit him.
The child had requested the mother to ensure that she did not spend time with the father outside the Contact Centre; this was communicated to the mother at least in 2017.
On 2 February 2015, the mother recalled being present in this Court before Donald J. She stated that before the parties had agreed to interim consent orders that the child spend supervised time with the father at a Contact Centre, His Honour had told the parties that he was proposing to make orders that the child spend supervised time with the father. The mother stated that she had agreed to the interim consent orders for supervised time because she believed His Honour would have made such orders in the absence of the parties’ agreement.
The mother gave oral evidence in relation to the father’s paternal extended family. She referred to that family’s residence at (omitted); the father’s brother and family live upstairs in the residence, with the paternal grandparents living downstairs. She referred to at least one member of the father’s paternal extended family being ill-disposed towards her.
The mother gave oral evidence that she would have concerns with the child spending unsupervised time with the father alone at a public place, such as at a park, by reason of, inter alia, the manner in which the father would speak to the child if he did not like something the child had said to him; he may well become angry and raise his voice, and demand a yes or no answer. She further had concerns in this context that the father might threaten to hit the child just as the father had threatened to hit the child’s brother.
The child’s brother, [Y], completed the Higher School Certificate in November 2015, and thereafter moved back to live with the mother and the child.
The child’s brother recalls that when the parties were living together, the father was frequently very angry and often in a bad mood and would yell at the mother and himself in front of others.
When the child’s brother was 10 years of age, he had left the family home and realised that he had forgotten his soccer ball. The father became angry and threw his keys at him, which hit the child’s brother on the right lower arm and grazed it.
Shortly after the parties separated, and whilst the child’s brother was in the father’s care, the child’s brother had an argument with the father and the father took him back to the mother’s home early. When they got to the mother’s home, the father threw the child’s brother’s belongings, including his guitar, amplifier, PlayStation and a bag of clothes on the lawn. At this time the father was shouting and swearing at the mother and members of the mother’s family.
When the child’s brother was 12 years of age, the father gave him some Playboy magazines and allowed him to read them. He told the child’s brother that the mother didn’t need to know about “these boy things”, or words to that effect. The father gave the child’s brother Playboy magazines on numerous subsequent occasions when he was in the father’s care.
On numerous occasions following the parties’ separation, the child’s brother recalls occasions when the father changed arrangements about seeing the child and himself at the last moment by either returning them to the mother early, or not picking them up as planned.
In about April 2011, the child’s brother became aware that the father had moved to Darwin. The father had not spoken to the child’s brother about this move to Darwin previously. Following the move to Darwin by the father, the child’s brother and the father communicated, wherein the child’s brother asked the father as to why he had not previously told him of his proposed move to Darwin. The father replied by stating that the child’s brother did not make an effort to see him and that he didn’t want see the father any more. Despite the child’s brother’s denial of this assertion the father told him that, “You don’t care about me so what’s the point in me staying here.”
Thereafter the child’s brother stayed with the father at his brother’s house in (omitted). During that stay, the child’s brother said to the father, “I’m sick of the rules that mum always puts in place for me.” The father responded, “Well you’re 15 now and you don’t have to follow those rules anymore.”
After the child’s brother turned 15 years of age, and when he was living with the father, the father would on occasions purchase alcoholic drinks for the child’s brother and his friends.
Whilst the child’s brother lived with the father at (omitted), the father worked (employment omitted). The child’s brother often didn’t see the father for periods of up to 5 days and often during those occasions he did not speak to the father on the telephone. At those times, neither the father nor his partner Ms I enquired where the child’s brother was or what he was doing. The child’s brother often felt very lonely whilst living with the father.
After the release of the first Family Report in these proceedings, the father confronted the child’s brother at home holding a copy of the report, and said to the child’s brother, “I’m disappointed in you for what you said in this report.” The father then threw the report at the child’s brother. (The Court interpolates here that in cross examination, the father stated that he expected loyalty from his son).
In the second half of 2014 when the child’s brother was 17 years of age and driving with the father, and talking about his girlfriend, the father stated, “She’s got good tits.” This girlfriend was aged 17 years of age at that time. In February 2015, the father spoke to the child’s brother about his new partner Ms J. He stated that his new partner was really good in bed or words to that effect. The child’s brother felt uncomfortable and embarrassed by these remarks from the father.
In early April 2015, the child’s brother had an argument with the father about their accommodation. During that argument the father said to the child’s brother, “I’ll hit you.”, or words to that effect. A short time later the father locked the child’s brother out of the house for about 3 hours. At that time it was raining. A short time later the father came to a beach to pick up the child’s brother. The father was very angry and was speeding whilst driving home.
Frequently whilst the child’s brother lived with the father when there were arguments, the father denigrated the mother and members of her family.
On one evening in the September/October 2015 school holidays, the father picked up the child’s brother from a party and they had a conversation. The father told the child’s brother that his ex-partner Ms I was “a real bitch.” The father stated that he wanted to throw a brick through her car window. The father addressing his remarks to the child’s brother’s friend said that if he would throw a brick through Ms I’s car windows, he would give him $50 for every window he smashed.
When the child’s brother moved out of the father’s accommodation, the father retained his learner driver’s log book. The child’s brother requested that the father return his log book to him. The father refused.
On at least two separate occasions after the child’s brother moved from the father’s place, he had a conversation with the father during which he requested from the father his birth certificate and passport. On each occasion the father refused.
After the release of the Family Report, the father sent the child’s brother a text message on 18 December 2015 which stated, inter alia, “I read everything that you said to the family consultant in (omitted). I won’t contact you any more. Good luck with everything.”
The child’s brother in re-examination stated that the child had told him that the father had asked her at the centre recently whether she would like to come to the father’s grandmother’s residence. The child told her brother that she had felt scared to tell the father, and the father had raised his voice saying, “tell me”.
The father gave oral evidence that he was formerly in a relationship with Ms J. Ms J had always lived at (omitted).
The father acknowledged that in the previous two months he had noticed the child being uncomfortable when talking with the father about seeing her outside the centre, on about three occasions.
The father was asked how he would deal with any prospective defiance in the child if spending time with her, when the child gets older, to which the father responded that he did not know, but that he would not hit her or verbally abuse her.
The father admitted that after the breakdown of the parties’ relationship, he was in a really distressed state. The police attended the home. He was upset and crying. Then he was taken to hospital by the police.
Evidence of Ms K, psychologist
Ms K provided psychological counselling to the mother following referral of the mother by her GP on 23 March 2017. Her written report dated 5 August 2017 was annexed to her Affidavit. The mother’s solicitors had requested Ms K to provide a report addressing, inter alia, her view as to the possible impact on the mother of orders for the father to have time with the child. Ms K was provided with a copy of the mother’s affidavit filed 19 January 2017.
The report of Ms K, referred to consultations with the mother on 6 separate occasions between May and August 2017.
The report of Ms K refers to May 2015 being the time “upon which the current access arrangement commenced at the contact centre.”
Inter alia, Ms K noted that the mother was extremely concerned that continued and/or unsupervised time with the father would serve to have a detrimental impact on the child’s emotional and psychological well-being and will have a negative impact on her development during her vulnerable adolescent years.
The mother expressed the view to Ms K that the father will not provide continuity, consistence, and predictability, in addition to safety and security that is essential to a child’s physical and psychological well-being.
The mother, inter alia, referred to the father’s numerous prior residential addresses, his former de facto relationships, the father’s anger management issues, the father’s lack of respect for women, and the father’s lack of adherence to religious practices that the parties had agreed to raise the child and her brother within and the mother is concerned that the father will expose the child to inappropriate behaviours that are outside of the (omitted) faith.
Ms K’s mental state examination of the mother referred to the mother, throughout the course of psychological counselling with Ms K, having demonstrated symptomatology of elevated stress, a mildly depressed mood, anxiety and physiological arousal, prominent and persistent worry and intrusive thinking, fatigue, a loss of energy, difficulty concentrating and diminished ability to think, diminished interest or pleasure in previously enjoyed activities, sleep disturbances, reduced motivation, reduced socialisation, irritability, feelings of helplessness and failure, and a prominent worry about the future.
Ms K stated that the mother’s presenting symptomatology had clearly developed as a result of her prominent worry and concerns regarding the prospect of the child having ongoing time with the father on an unsupervised basis, and her belief that the father will not provide the child with the adequate nurturing, care, protection, and supervision that the child requires.
Ms K noted that the mother clearly feels a sense of failure in her maternal role, in that the child has repeatedly expressed that she does not want to spend time with the father on an unsupervised basis, despite being happy to continue seeing the father at the Contact Centre.
Ms K noted that the mother repeatedly expressed prominent worry about the psychological impact that unsupervised contact would have on the child, in that the mother doubted that the father would provide a consistent or positive role model for the child. The mother was of the opinion that the child will without doubt be exposed to inappropriate behaviour and religious practices which is a source of concern and worry. The mother was particular worried that the child will be exposed to the father’s anger and aggression that the mother had seen in the father many times.
Ms K noted that the mother had stated to her that she has become despondent, easily agitated, and intolerant as a result of her elevated stress, anxiety, and prominent worry of late, and that she is less motivated. The mother stated to her, “I am just so worried and anxious all of the time, I can’t put the worry out of my mind.”
Ms K noted that the mother was currently prescribed with an antidepressant medication, namely Zoloft.
Ms K noted that the mother had engaged well throughout the psychological counselling but that her symptomatology remains unresolved to date.
As a result of the psychometric assessment, Ms K noted that the mother scored in the mild range for depression and the severe range for anxiety and the extremely severe range for stress. Ms K noted that the results of this assessment were consistent with the mother’s psychological presentation throughout her counselling.
Ms K’s opinion was that, inter alia, the mother’s psychological symptomatology had primarily developed as a result of the stress associated with the child’s contact with the father, and her prominent worry and concerns regarding the father’s provision of continuity, consistence, and predictability, in addition to safety and security for the child in the event that the father had unsupervised contact with the child.
Ms K noted that a number of historical events had served to cause and substantiate the mother’s concerns and fears regarding the child having unsupervised contact with the father including: the physical and psychological abuse that she was subjected to during and after the marriage; the father’s historical inconsistency in contact with their children, particularly the child; issues of concern that occurred during the father’s supervised contact; as well as events that occurred when their adolescent son resided with the father, such as inadequate supervision, failure to provide adequate food and emotional nurturing and support, and exposure to sexual activity. The mother was prominently worried that the father does not have the understanding, empathy, and sensitivity that a young girl requires, nor the recognition of the importance of consistency and adequate supervision to a child of the child’s age.
Ms K was of the opinion that the mother will most certainly suffer a continuation and exacerbation of her current psychological symptomatology in the event that an order is made by the Court for the father to have unsupervised contact with the child. Lastly, Ms K recommended that the mother continues to undertake psychological counselling to assist her to modulate the psychological distress and symptomatology and provide her with therapeutic support.
Ms K was cross-examined.
Ms K confirmed that she had read Part 15.5 of the Family Law Rules 2004 regarding proceedings in the Family Court of Australia, and had complied with those provisions.
Ms K acknowledged that she had only obtained the mother’s Affidavit filed in the proceedings on 19 January 2017, for the purpose of her report. She had formulated her opinions based upon the information given to her by the mother, together with the mother’s affidavit.
She acknowledged that she was the treating psychologist for the mother.
Ms K stated that the mother had told her that in February 2015 she had agreed to an order that the child spend supervised time with the father.
Ms K stated that if the child’s time with the father was supervised outside the confines of the Contact Centre, then the mother’s concerns would be alleviated.
The factual assumptions upon which Ms K expressed her opinions (see the reference to the “historical events” referred to at page 9 of her report, which relate to the history provided by the mother to Ms K and referred to earlier in the report of Ms K) are consistent with and mirror the Court’s acceptance of the mother’s evidence, and the child’s brother’s evidence, in these proceedings.
Ms K’s opinions expressed in her report were not successfully challenged in cross examination.
The Court accepts the evidence of Ms K.
Child Dispute Conference Memorandum to Court 13 August 2014, Exhibit F
Ms E interviewed both parties at the Conference on 13 August 2014.
Ms E stated that the father was highly evasive and initially misleading in the information that he provided in regards to the mother’s allegations against him of family violence and his mental health.
The mother had alleged to the family consultant that the father had been physically violent towards her on a number of occasions, and that she had sought medical assistance following an incident in which the father had kicked, hit and slapped her. She stated that following this she had an AVO against the father. The father told the family consultant that on this occasion he had pushed the mother because she was blocking his exit. The father initially denied to the family consultant that the mother had sustained any injuries, but then conceded that she may have sustained a bruise on her arm.
The mother alleged to the family consultant that the father was controlling and intimidating towards her, including post separation. She alleged to the family consultant that there had been an incident at (omitted) Hospital post separation whereby the father was intimidating towards her and “nudged” her, which was witnessed by a nurse and resulted in the involvement of security staff and a “lock down” in the hospital.
The family consultant noted that despite court orders made at the Newcastle registry of this Court, the father had not yet spent time with the child. The mother told the family consultant that the father had made no attempt to initiate the commencement of this time. The father told the family consultant that although he was on a waitlist to attend a course commencing October 2014, he did not deem this as being “enrolled” and so had not made attempts to see the child.
Child Inclusive Conference Memorandum to Court 4 November 2014, Exhibit F
This conference was held again with Ms E, family consultant. Both the child and the child’s brother were interviewed by the family consultant.
The family consultant noted that the parents currently have no communication at all. The mother indicated that her experience of the father as a husband made it difficult for her to trust him as a father.
The child’s brother, then aged 17 years and 4 months, presented to the family consultant as a mature and reflective child. He told the family consultant that he wanted to speak frankly about his family situation, and initially did so, but at the end of the session, the child’s brother told the family consultant that he did have some concerns about how the father would react to his comments.
The child’s brother told the family consultant that he was relieved when the parties separated. The child’s brother stated that he had witnessed the father shouting at the mother and recalled one instance of the father physically assaulting the mother.
The child’s brother told the family consultant that he had been hurt by the father’s actions post-separation, and said he had been very upset when the father moved interstate without telling him, and considered that the father had sometimes prioritised his partners over the child and himself.
The child’s brother spoke in glowing terms about the mother to the family consultant.
The child was interviewed. She was aged 7 years. She presented as a bright and positive child. The child told the family consultant that she could still recall what the father looked like. She told her that it would be nice to commence spending time with the father. She said there was nothing she would feel worried about if she commenced spending time with the father. She said that it would be good if her brother was also present when they spent time together; this would be best because he could help her if “other people” in the father’s household would call her sister.
Under the heading “Future Directions”, the family consultant stated that the conference had raised significant concerns about the father’s insight into his behaviour and the impact that it had on the child and the child’s brother.
Family Report, 17 December 2015, Exhibit F
The family report writer was Mr M. He interviewed the parties, the child and her brother, and the mother’s new partner on 16 November 2015, with brief telephone interviews with the parties on 5 November 2015.
The family report writer noted that the father lives in (omitted) ((omitted) NSW). The distance was 175 km (two hours driving time) between that place and (omitted).
The family report writer noted that the father’s proposal, in his Initiating Application filed 18 March 2014, sought, inter alia, parenting orders that the child live with the mother and spend time with him every alternate weekend and for half of the school holidays. He noted that the mother’s proposal was, inter alia, that the child spend time with the father initially for two hours per month at a supervised Contact Centre.
The father told the family report writer that he was currently in a relationship with Ms J. He stated that the mother was a really good mother.
In relation to family violence, the father told the family report writer that on one occasion he had pushed the mother during an argument. He stated that he and the mother had verbal arguments when they were in a relationship together.
The mother told the family report writer that she worked 20 hours per week and that the maternal grandparents assisted her in caring for the child.
The mother told the family report writer that the child looked forward to spending time with the father and enjoyed it, and it was going well. The mother stated that she was supportive of the spend time arrangements, if the child was safe and secure and there was security in the time being supervised.
The mother was concerned for the child spending overnight time with the father as the child had never spent overnight time with him. She indicated concerns about the father’s ability to recognise the child’s needs, given her assessment of the father’s alleged treatment of the child’s brother.
When asked about violence in the parties’ relationship, the mother told the family report writer that there had been instances of physical and verbal abuse and one AVO (which had expired in 2004) had been issued. The mother told the family report writer that, “(the child’s brother) had witnessed it [the violence], he told me later.”
The mother told the family report writer that she identified herself as (religion omitted) and said that sharing her faith with the child was important.
The mother told the family report writer that the child’s brother had decided to live with the father in 2013, and she said that she was supportive of this, but felt that he made this decision because he did not like the boundaries in her care.
The child’s brother was interviewed by the family report writer. He stated that he had recollections of violence in the parties’ relationship. He stated that the father had moved to the Northern Territory and had never told him previously. The child’s brother stated that he had now moved out from the father’s home. He stated that he did this because he felt that the father continued to choose partners over him. He stated that he no longer talks to the father and doesn’t feel comfortable around him.
The child’s brother told the family report writer that he is concerned for the child’s well-being because he fears that the father will “let her down as well.” He described the father as manipulative and a poor role model.
The child was interviewed by the family report writer. She was aged eight years and one month. She included the father in her description of who was in her family.
The child spoke positively about spending time with the father every second Saturday as the father brought her things, and referred to the next Saturday when the father was bringing her a movie to watch at the centre.
When observed with the father in the observation session, the child hugged the father. They had a positive time together in the session. The child, at the end of the observation session, appeared upset to leave the father.
The child had a positive observation session with the mother.
Under the heading “Evaluation”, the family report writer stated, inter alia, that the father had had little involvement in the child’s early life and in her day-to-day parenting. He stated that the mother is and has always been the child’s primary carer and they have developed a close relationship. As would be expected, the child appeared most comfortable in the mother’s care. It was acknowledged by both parties that a positive relationship between the father and the child had developed since supervised contact was established in 2015. That relationship had developed positively as a result of the child’s experience of the father during supervised sessions, and also because of the support that the mother had given to the relationship.
The family report writer noted that there appeared to have been an inconsistent presence of the father in the parenting of both the child and the child’s brother. He noted that the father had had little involvement in the child’s early life and his ability to meet her day-to-day needs was untested.
The family report writer stated that it may be in the child’s best interests for the time that she spends with the father to change slowly, therefore allowing the child and the mother time to adjust, and providing the best possible environment for a successful future relationship (with the support of all parties). He stated that given that there appeared to have been no negative issues reported during supervision, it may be in the child’s best interests for her to begin to spend unsupervised time with the father, and the amount of time to increase slowly, until she is spending a full day with the father.
The family report writer stated that the aim of spend time arrangements is to support the development of a strong and supportive relationship between the child and the father. Orders for overnight time may be premature and may negatively impact their relationship. It may be in the child’s best interests for orders that allow for day time now, and allow the child to determine if she would like to progress to overnight time in the future. She may be mature enough to make that kind of decision when she is about 14 years old.
Under the heading “Recommendations”, the family report writer stated, inter alia, that in the absence of evidence to the contrary before the Court, it was recommended that supervision of time between the child and the father cease, and that the child’s time with the father remain on each alternate Saturday and remain daytime only.
Oral evidence of Family Report writer
The court Refers to the family report writer’s oral evidence, aspects of which are set out below.
The family report writer stated that since the family report, he had read further Affidavit material in the proceedings, including the father’s Affidavit filed 8 August 2017, the mother’s Affidavit filed 7 August 2017, the child’s brother’s Affidavit filed 19 January 2017, and the Affidavit of the psychologist Ms K filed 7 August 2017.
The family report writer stated that continued supervision at a contact centre might not enhance the child’s relationship with the father, but it may well maintain whatever relationship she currently has with him.
The family report writer noted that the time of his interview with the mother she was not presenting with anxiety regarding the child spending potentially unsupervised time with the father.
As to the further evidence of the mother that had not been available to the family report writer at the time of his interviews and report, this oral evidence was given by the family report writer:
Mr Kenny: At the time you made your recommendations – can I take you, for example, to paragraph 26 of your report. The mother was saying – speaking in quite positive terms about supervised visits. She really looks forward to it. She enjoys it. She said she was supportive of it. She’s safe, secure, and there’s security in the time being supervised. So what you had was, having now read the affidavits that you’ve read, a mother who (a) is not bringing evidence to you, as she is now to the court, that she was suffering significant anxiety in relation to the prospect of the father seeing the child outside the centre; is that right?
Mr M: Yes.
Mr Kenny: And she was certainly being far more positive to you in relation to the time at the centre than it would appear she is being, having regard to her affidavit, now?
Mr M: That’s correct. Yes.
Mr Kenny: So for whatever reasons, which are going to be within his province of his Honour to decide, the mother’s attitude towards the time has significantly become less positive, hasn’t it?
Mr M: Yes. And – yes.
Mr Kenny: Okay. So at the time you were making your recommendations it was on the basis of a mother who presented in the context as I’ve just outlined in paragraph 26, that is, she had some goodwill at that point, didn’t she?
Mr M: Yes, she did.
Mr Kenny: And it’s unfortunate that two and a half years has passed since the report, but the mother has presented evidence through the affidavit of her son, [Y], which is a significant document if the Court accepts the things that [Y] is saying about his father, isn’t it?
Mr M: Yes.
Mr Kenny: Some of those things – I mean, he conveyed it during the family report as well.
Mr M: Yes, certainly.
Mr Kenny: But, certainly, it goes a great deal further in the affidavit to what was told to you?
Mr M: Sure.
The family report writer was cross-examined by counsel for the mother as to whether monthly visits between the child and the father at the Contact Centre would maintain their relationship, noting that presently the visits are fortnightly visits. The family report writer did not express a strong view in this context having stated, inter alia, that the present fortnightly regime of time between the child and the father at the contact centre was “very limited anyhow”.
The family report writer’s initial recommendations in his family report, relating to supervision and its cessation, were in the view of the Court, significantly diluted by his oral evidence, which ultimately acknowledged the further factual dimensions to the case as a result of the parties’ additional material being produced after the family report interviews. Ultimately, the Court formed the distinct impression that the family report writer was not prepared to make any firm recommendation relating to the issue of supervision by reference to his oral evidence. Nevertheless, the evidence of the family report writer was generally of assistance to the Court and the Court accepts it.
Exhibits
Exhibit A, sleeve 11, New South Wales police subpoenaed documents, contains an entry for 17 December 2016 relating to Ms J, with the father being recorded as her partner. The entry refers to Ms J seeking treatment through a counsellor for a previous self-harm incident in June 2016. The entry refers to Ms J having contacted the police on 17 December 2016 making threats of self-harm to the station constable. Ms J is recorded to be currently sitting in her vehicle.
An entry for 14 September 2012, refers to an incident at (omitted) Hospital where the child’s brother was hospitalised, involving the father and members of the mother’s family.
An entry for 7 December 2001, records the father approaching the mother and hitting her with an open hand 10 to 15 times. It is recorded that the mother tried to call 000 but the father grabbed the phone off her so she could not call the police. The mother later attended a police station to make a report of the incident.
An entry for 12 October 2009, refers to the father sending text messages to his girlfriend stating he wanted to kill himself. The police attended the father’s premises. The father began to cry upon police arrival and refused to speak with the police. The entry records the police feeling it was in the father’s best interests to schedule him under the Mental Health Act due to his threats and behaviour towards the police. The father was conveyed to (omitted) Hospital and scheduled under the Mental Health Act.
An entry for 29 April 2016, records the victim as being Ms J complaining of pain to her left ring finger. The person of interest is recorded as the father. The entry records that on the previous day Ms J has contacted the police requesting assistance. Police had spoken to her and she advised that she and the father had earlier had a verbal argument resulting in the father grabbing a set of car keys which Ms J was holding. During this motion, Ms J’s left ring finger accidentally got stuck on the keys, causing her minimal pain. She advised that the father had not been physical or violent and that the incident was not deliberate or intentional. (The Court interpolates here that the father’s cross examination evidence in relation to this incident involving Ms J was that he did not recall ever assaulting her.)
An entry for 31 January 2017, refers to the victim being Ms J. It is stated that Ms J is the person of interest’s mother-in-law. It is recorded that Ms J is in the process of legal proceedings to gain visitation to her grandchildren. It is stated that Ms J thinks the person of interest may have access to an unregistered firearm but it is not located at his residential address. Another entry of the same date records the person of interest being married to Ms J’s daughter. It is stated that Ms J has been verbally abused and threatened by the person of interest. The entry records Ms J having received a call on her mobile phone from the person of interest, with the person of interest yelling at her stating, “Stay away from my kids, I’ll shoot you, I’ll send my mates around to bash you.”
Exhibit D, sleeve 4, being tendered documents from Ms T, (omitted) Psych, relate to the mother’s counselling sessions in 2014. An entry for 27 August 2014, refers to the mother’s concern for the welfare of the child should she spend time with the father. Counselling sessions are recorded in April, May 2015; in the sessions the mother refers to her feelings of stress and anxiety in the context of the parenting proceedings.
An entry for 10 January 2017 refers to a history from the mother as to her extreme anxiety leading up to a Court date. The note records a history for the mother that she still feels intimidated by the father. She fears for the child’s safety. Her sleep is recorded as poor, as well as her appetite.
Exhibit E, being sleeve 9 from (omitted) High School, and relating to the child’s brother, records the child’s misbehaviour in 2012 at school and his failure to attend school at various times in that year. The child’s brother is in Year 9 at this time.
Exhibit H, being sleeve 13, comprise certain documents produced by the (omitted) Contact Centre.
A letter from the Contact Centre to the father dated 22 January 2016, state’s inter-alia
I write to you in relation to an incident that took place at (omitted) Contact Service on Saturday 2 January 2016 and on another occasion on Saturday 12 December 2015. On both occasions your partner was seen to be sitting in your vehicle outside (omitted) Contact Service in an inappropriate location. It was explained to you by the coordinator on 12 December 2015 that it is inappropriate for your partner to reside in your vehicle around the time and location that the Live With Parent attends the centre to pick up your child.”
A Contact Centre note for 17 March 2016 records a conversation between a centre worker and the father regarding the mother feeling intimidated with the father’s “partner” remaining in the father’s car near the Contact Centre. The father is recorded to have been argumentative with the centre worker in relation to this issue.
On 17 December 2016, during one of the father’s visits to the centre to spend time with the child, the police attended the centre. The father’s “partner”, according to the police, would be going to the hospital as she had threatened self-harm and was not well, and an ambulance had been called. The father informed a centre worker that “his partner” is under a lot of stress and had family issues. The father is noted to advise the centre worker that he had asked “his partner” to move their car to another street away from the centre.
Other Contact Centre notes for visits in 2016 by the father with the child are positive.
A supervised contact visit on 21 May 2016 was positive. The Contact Centre notes record there being a lot of conversations between the father and the child about the child’s brother.
A supervised contact visit on 2 July 2016 was positive. The Contact Centre notes record the father asking the child about her brother, including whether he still sleeps with the light on. The father told the child every morning when he leaves for work he drives past the house and notices the child’s brother has the light on.
A supervised contact visit on 27 August 2016 was positive. The father suggested to the child on multiple occasions that she could possibly in the future come home with him or stay with him. The Centre notes record that the child looked clearly uncomfortable with these suggestions and repeatedly said that she has never stayed a night without her mother.
A supervised contact visit on 19 November 2016 was positive. The record of this visit noted the father mentioning to the child that while driving his truck the previous week he drove past the child’s house and school as he was working in the area.
A letter from the Contact Centre to the father of 11 January 2017, states, inter alia,
It has come to my attention that the issue of your car being parked out the front of the centre with your current partner in it is still occurring. I note that we have spoken to you on numerous occasions about this being intimidating as your current partner stares at your ex-partner. We have requested that you organise that once contact has convened or after half an hour she moves the car into (omitted). While she strongly voiced objection to this following obtaining legal advice, you agree to do so and have cooperated for the most part. On 17 December 2016, whilst it was out of your control what your current partner did, there was an incident that involved the police and ambulance being required to attend the centre and outside the centre. At this time your partner was observed to be remaining in the car still on (omitted). This has created a great level of fear and anxiety in your child and your ex-partner as they are aware of which car is yours.”
The supervised contact visit on 29 July 2017 records, inter alia, the child being keen to greet the father. The child accepted the father’s affectionate greeting. The child remained content and comfortable throughout the visit and spoke with a father about her family members. On leaving, the father and child stated they loved each other and there was a farewell hug. The child told the centre worker she had had fun. This was a two hour visit. Earlier contact visits on 1 and 15 July 2017 were similarly positive.
In an email letter from the mother to the Contact Centre 10 January 2017, the mother states, inter alia, that she cannot understand why the father’s “partner” continues to be present on the father’s visits to the centre, despite the father being “told on more than one occasion.” The mother states that,
It is this uncertainty that is causing me distress and I feel frightened for (the child’s) and my safety. In order to try and cope with my anxiety I have recently obtained some counselling for myself to assist me to remain calm and collected in supporting (the child’s) visitations.
The Contact Centre notes for 11 January 2017, record, inter alia, the father becoming aggressive and angry on the telephone with Contact Centre staff following the centre informing the father of a suspension of supervised time at the centre “due to an ongoing issue of intimidation outside the centre.”
The Contact Centre notes for 12 January 2017 record the father’s “girlfriend” contacted the police at 1PM to inform them where she was and that she was going to commit suicide. Police were dispatched accordingly. Police informed the centre that she had told them she had just received a telephone call from her son and that was why she was going to suicide.
Relevant legal principles
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
To determine what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3) of section 60CC. Firstly, the Court must consider the primary considerations, being:
(2)(a) The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(2)(b) The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
In applying these considerations, as per section 60CC(2A), greater weight must be given to the ‘need to protect’ the child over the benefit to the child of a meaningful relationship with the parents.
When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act.
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.
The Best Interests of the Children
Section 60CC Considerations
Subsection (2a) - the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration.
The child has a meaningful relationship with the mother, her primary carer, and will benefit from a continuance of that relationship.
The child appears to have a meaningful relationship with the father and will benefit from a continuance of that relationship, provided that the child is not exposed to any significant risk of harm in spending time with the father.
Should the child continue to spend supervised time with the father, whether in a formal Contact Centre, or through a supervision organisation such as Phoenix Rising (where the child can spend supervised time with the father outside the confines of a formal Contact Centre), on a monthly basis, as proposed by the mother (see her proposed Minute of Orders, referred to previously), there is a reasonable prospect that the child’s meaningful relationship with the father can be maintained.
The court is of this view, having taken into account the maintenance of the child’s meaningful relationship with the father despite the history of the extent of the child’s time spent with the father post separation, and interruptions to the child’s supervised time with the father since February 2015.
Further, there is force to the mother’s submissions that monthly visits, as opposed to fortnightly visits, will relieve the parties of the pressure surrounding fortnightly visits (for example, issues relating to the father bringing Ms J to the contact centre), and may well afford the father a better opportunity to financially afford spending time with the child supervised by an organisation such as Phoenix Rising (the court not overlooking the father’s contention that he would have difficulty in meeting the costs of Phoenix Rising).
Should the mother’s proposals (as above) be implemented, there should be no adverse effect upon the child’s meaningful relationship with the mother.
However, were the child to presently begin to spend unsupervised time with the father, then based upon the material before the Court, including the mother’s evidence and that of her treating psychologist, Ms K, relating to the mother’s fears and concerns in relation to the child spending unsupervised time with the father, and her adverse psychological symptomatology in relation to such fears and concerns, there is a significant risk that the mother’s parenting capacity will be adversely affected with resulting adverse effects upon the child’s meaningful relationship with the mother.
The Court gives significant weight to this meaningful relationship primary consideration.
Subsection (2b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In the view of the Court, there is a need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence, in spending unsupervised time with the father. In the view of the Court there is an unacceptable risk that the child will be exposed to such harm if spending unsupervised time with the father.
The Court accepts the mother’s evidence relating to the perpetration of family violence upon her by the father, including historical verbal abuse, aggression and anger exercised by the father towards her during the relationship.
This evidence of the mother is consistent with the father’s anger shown towards the Contact Centre staff in the context of the Centre’s concerns relating to Ms J remaining in the father’s vehicle in the vicinity of the Contact Centre. It is also not without relevance that a NSW Police entry revealed an apparent complaint by Ms J to the police relating to a physical incident involving herself and the father in relation to a set of keys.
This evidence of the mother is also consistent with the child’s brother’s evidence relating to the father’s parenting of him, which included evidence of threatened violence by the father towards third parties.
This evidence of the mother is also consistent with the entry for 7 December 2001 in Exhibit A, NSW Police, recording the father approaching the mother and hitting her with an open hand numerous times. It is also consistent with the father’s own admission of pushing the mother to the ground.
There is a significant risk that the child will be exposed to physical harm if spending unsupervised time with the father, particularly as the child gets older, becoming more assertive and expressing her individuality; in this context, the court refers, in particular, to the father’s perpetration of family violence upon the mother, the child’s brother’s evidence relating to the father, and the complaint made by Ms J to the police.
There is a significant risk that the child will be exposed to psychological harm if spending unsupervised time with the father; in this context the Court refers to the mother’s evidence relating to the father’s verbal abuse and anger; the child’s disclosures to her following certain visits with the father at the Contact Centre, and relating to the manner in which the father verbally questioned the child causing her to experience anxiety; the child’s brother’s evidence in re-examination relating to the adverse manner in which the father questioned the child; Ms J’s complaint to the police in relation to the father’s conduct; and finally the father’s significant denials in this context, suggesting a serious lack of insight into his adverse behaviour. Further, the Court notes in this context the evidence of the mother relating to the child’s anxieties as expressed to the mother in relation to the father (and see below in relation to the child’s views).
The mother’s evidence relating to the child’s anxiety exhibited to the mother and relating to the child’s supervised time with the father at a Contact Centre suggests that the father is not attuned to the child’s emotional sensibilities.
The Court notes, in this context, the mother’s evidence relating to events which have occurred since the consent orders of 2010, including her evidence relating to anxiety she experienced in respect to incidents at the Contact Centre relating to Ms J and the father’s car; the child’s anxiety expressed to the mother relating to certain interactions with the father at the Contact Centre; the mother’s evidence relating to the father intimidating her when he shoved her in the shoulder at the hospital (see the Child Dispute Conference Memorandum to Court dated 13 August 2014); harassing text messages sent by the father post separation; and the child’s brother’s evidence relating to the child.
There is a significant risk that the child will be exposed to neglect if spending unsupervised time with the father by reason of the father’s historical failure to support the mother’s imposition of boundaries upon the child’s brother’s behaviour, together with his own failure to impose such boundaries when the child’s brother was living with him.
There is a significant risk that the child will be exposed to the father’s denigration of the mother if spending unsupervised time with him; in this context the Court refers to the mother’s evidence and the child’s brother’s evidence relating to the father’s denigration of the mother and her family. The father’s evidence in cross examination revealed that he has little respect for the mother and does not think well of her.
The father’s evidence relating to compliance with the Contact Centre rules as to his car being parked at least 500m from the Centre indicated that his willingness to abide by the Centre’s rules was seriously questionable and he demonstrated a cavalier attitude to compliance with the Centre’s rules regarding parking of his car. The Court would have no confidence that the father would presently comply with any prospective restraining orders in respect to his behaviour if spending unsupervised time with the child (for example, non-denigration orders).
Whilst the father’s proposal for unsupervised time does not involve Ms J being present when the father is spending time with the child, he does not seek to exclude the child spending time with him with members of the paternal extended family. Yet there is no evidence from any member of the paternal extended family, and the Court notes the mother’s evidence that previously members of the paternal extended family had been ill disposed towards her.
Further, in the event that the child was to spend unsupervised time with the father, there is a significant risk that the mother’s anxieties will increase significantly leading to an adverse effect upon her parenting capacity for the child, with resultant adverse effects upon the child. In this context, the Court refers to the mother’s evidence and the expert evidence of her treating psychologist Ms K.
Whilst the mother did agree to final consent parenting orders in August 2010 in respect to the father spending unsupervised time with the child, noting she was alleging serious family violence against the father at that time, nevertheless the mother’s case relied upon significant events occurring after this time, discussed previously, including reliance upon the child’s brother’s evidence in respect to his experiences with the father, disclosures made by the child to the mother, and certain events and incidents occurring at a Contact Centre, including the father’s temporary suspension of supervised time.
The Court has not overlooked the positive experiences the child has had with the father at the Contact Centre over the last 2.5 years, but notes that this time has been supervised.
The mother’s final parenting proposals effectively give the father an option to spend supervised time with the child at the Contact Centre, or have supervised time with the child through Phoenix Rising, the latter body providing supervision outside the confines of a formal Contact Centre. Both the Contact Centre and Phoenix Rising would provide appropriate supervision of the child’s time with the father. In final submissions, the father submitted that he could not afford supervision through Phoenix Rising. However, there was no significant evidence relating to the father’s financial circumstances, whilst noting that he asserted he was unemployed and in receipt of a carer’s pension. Nevertheless, again, the Court is of the view that the father should have the discretion to spend supervised time with the child through Phoenix Rising, should his financial circumstances permit him to do so.
Further, the court is of the view that the parties should have the ability to agree to unsupervised time between the father and the child, despite any express order the court makes in relation to supervised time.
The Court notes the mother’s evidence in which she stated that perhaps in a few years’ time, when the child is 13 years of age, she might envisage the child spending unsupervised time with the father. This evidence is particularly significant in light of the cogent evidence before the court relating to the mother’s present anxieties in respect to the child spending unsupervised time with the child.
In the view of the court, after the child has reached 13 years of age, the father should be permitted to make an application to the court seeking to spend unsupervised time with the child. In this context, the court takes into account the mother’s evidence that perhaps in a few years’ time, when the child is 13 years of age, she might envisage the child spending unsupervised time with the father, the above cogent evidence relating to the mother’s present anxieties in respect to the child spending unsupervised time with the child, the father’s serious lack of insight into his adverse behaviour, his lack of frankness to the court (discussed earlier in these Reasons), and also refers to its discussion above under the need to protect primary consideration.
It is premature to predict at this point in time whether the child, at her 13th birthday, will be able to act sufficiently protectively towards herself in relation to spending unsupervised time with the father, and it is also premature to predict what her wishes might be at that time. And further, significant events may have arisen, in the meantime, militating against the court now making prospective orders for unsupervised time after the child turns 13 years.
The Court gives significant weight to this need to protect primary consideration.
Section 60CC(3) - Additional Considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The child, almost 10 years of age, has expressed certain views to the mother and the family report writer in relation to her wish to only spend supervised time with the father. The Court gives some weight to her views.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The child has a good relationship with the maternal grandparents. The Court refers to its discussion above under the meaningful relationship primary consideration.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
The father has not sought to exercise such opportunities consistently. He previously moved to Canberra, and Darwin, where he lived for not insignificant periods of time, posing practical problems in spending regular time with the child.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
It would appear that the father has not regularly made child support payments for the child. He gave evidence that he presently pays about $50 per fortnight, being a payment deducted from his carer’s pension.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court refers to the meaningful relationship prior reconsideration discussed above.
(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Not applicable.
(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
The mother has such capacities. The father has difficulties in being attuned to the child’s emotional sensibilities. His ability to meet the child’s intellectual needs appears satisfactory, although the court would assess the mother’s ability in this context to be greater.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The court refers to its discussion above under the need to protect primary consideration in relation to the child’s anxieties and emotional sensibilities.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Court refers to the intermittent availability of the father to the child both emotionally and geographically during the relationship.
The Court refers to the father’s historical family violence perpetrated against the mother.
(j) Any family violence involving the child or a member of the child's family.
The Court refers to its discussion above under the need to protect primary consideration.
(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter.
An Apprehended Violence Order was made for the mother’s protection at the Local Court at Liverpool on 19 February 2002 for a period of 2 years relating to an incident in 2001. The father did not attend Court.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
The Court refers to its discussions above under the meaningful relationship and need to protect primary considerations; to accede to the father’s proposals would carry the significant risk of further proceedings.
m) Any other fact or circumstance that the Court thinks is relevant.
In respect to the father’s proposed Airport Watchlist Order, noting that the mother has strong ties to Australia, including her own full-time job and the child’s schooling, the Court is of the view that there is not a significant risk that the mother would not return to Australia with the child in the event that she sought to travel overseas with her, and it will not be in the best interests of the child to make such an order. In this context, it will be in the best interests of the child that the mother be permitted to travel overseas with the child at any time.
In respect to the father’s proposal for regular telephone communication with the child, the Court is of the view that it is not presently in the best interests of the child to make such an order; in this regard, the Court refers to its discussion above under the need to protect primary consideration, including the court’s reference to the father not being attuned to the child’s emotional sensibilities.
It will be in the best interests of the child to make a restraining order against the father that he shall not attend the child’s school or any school-related event at a community venue, and in this regard the Court refers to the discussion above under the need to protect primary consideration.
Parental responsibility
The parties have agreed to an order for the mother having sole parental responsibility in relation to the child. Such an order will be in the best interests of the child, noting the mother has been the primary carer of the child since birth to date, the nature and extent of the father’s time spent with the child, particularly since separation to date, and the mother’s fears and concerns and feelings of intimidation in prospectively dealing with the father.
By reason of the Court’s findings as to the perpetration of family violence by the father towards the mother during the relationship, the presumption of equal shared parental responsibility does not apply.
Summary
Accordingly, evaluating the above discussed considerations under s60CC of the Act, the Court is of the view that it will be in the best interests of the child to make final parenting orders as follows:
(1) That the mother shall have sole parental responsibility for the child [X] born (omitted) 2007.
(2) That the said child shall live with the mother.
(3) That unless otherwise agreed, the father shall spend time with the child for 2 hours each 4th Saturday, or Sunday, at the (omitted) Contact Service.
(4) The father shall pay the costs of supervised contact at the (omitted) Contact Service.
(5) The mother shall facilitate the child spending time with the father, paid for by the father, supervised by Phoenix Rising for up to 6 hours every 4th Saturday, in lieu of time at (omitted) Contact Service, with the father to have a discretion as to through which service he exercises supervised time, and the father shall provide to the mother 2 clear days’ notice by text message in the event that he proposes that time be supervised by Phoenix Rising.
(6) In the event that the father is unable to exercise time on any occasion due to the child’s illness, make up time shall be provided on the next following weekend that the child is well enough to attend for time.
(7) The father shall be permitted to spend unsupervised time with the child pursuant to any agreement made with the mother, such agreement to be expressed in writing (for example, through email correspondence).
(8) That both parties shall keep the other informed of their residential address, landline and mobile telephone numbers, and shall notify the other, within 24 hours of any change thereto.
(9)That each party keep the other informed of any medical emergency that may involve the child, or any significant medical treatment that the child may receive whilst the child is in the care of that parent.
(10) In the event of the child suffering a medical emergency, requiring medical attention whilst spending time, or living with either parent:
(a) The other parent is to be notified as soon as practicable;
(b) The other parent is to be provided with full details of the practitioner or medical facility upon which the child attends as soon as practicable;
(c) The medical practitioner or facility is to be advised that both parents may have access to the child’s medical records, and information retained by them upon request.
(11) The mother shall do all things and sign all documents necessary to authorise, or enable, the principal of any school the child may attend from time to time, to provide to the father, at the father’s expense, copies of all school reports, photographs, notifications or school events to which parents may ordinarily be invited.
(12) The father shall not attend the child’s school nor any school related event at a community venue.
(13) The father shall be permitted to contact the child’s school for the purpose of discussing the child’s progress, and these orders shall be sufficient authority for him to do so.
(14) That both parties be restrained from denigrating the other parent in the presence, or hearing of the child, or permitting or causing, or allowing any other person to do so.
(15) The mother shall provide to the father, details of the child’s general practitioner, and any other medical specialist including counsellor, or psychologist, that the child may attend upon, from time to time, and the father shall be permitted to contact any medical practitioners/specialist/counsellor to discuss the child’s condition or treatment, and these orders shall be sufficient authority for him to do so.
(16) The mother shall be permitted to travel overseas with the child at any time.
Notation: After the child has reached 13 years of age, the father should be permitted to make an application to the court seeking to spend unsupervised time with the child.
I certify that the preceding two hundred and sixty-three (263) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Date: 1 December 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
-
Remedies
-
Procedural Fairness
0
0
2