SALIB & SALIB

FAMILY COURT OF AUSTRALIA

SALIB & SALIB

[2015] FamCA 489

FAMILY LAW – CHILDREN – Final parenting orders – Where the child lives with the mother – where the child refuses to spend supervised time with the father – where the father has spent no time with the child for 12 months – where the father has a history of being abusive towards the mother – where the father has a history of criminal behaviour and illicit substance use – where the mother has a history of driving offences and illicit substance use – where the mother left the relationship and has rehabilitated – where the Department of Health and Human Services returned the child to the mother – ordered that the mother have sole parental responsibility – ordered that the father spend no time and have no communication with the child – ordered that the father be at liberty to forward the child gifts and cards.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant has failed to comply with procedural orders – where the applicant did not appear at trial – where procedural fairness provided to the applicant – leave granted to conduct hearing on undefended basis.

Australian Passports Act 2005 (Cth), s 11
Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth), ss 11F, 60B, 60CA, 60CC(2), 60CC(2A), 60CC(3), 61B and 61DA

APPLICANT:

Mr Salib

RESPONDENT:

Ms Salib

INDEPENDENT CHILDREN’S LAWYER:

Susan Ruffin Solicitors

FILE NUMBER:

MLC

304

2013

DATE JUDGMENT DELIVERED:

26 June 2015

PLACE DELIVERED:

Melbourne

DATE ORDERS MADE:

11 May 2015

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

11 May 2015

REPRESENTATION

THE APPLICANT:

No Appearance

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Glaister

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Susan Ruffin Solicitors

Orders made 11 May 2015

IT IS ORDERED

That all previous parenting orders regarding the child B born … 2007 (“the child”) be discharged.
That orders 2, 3 and 4 of the interim orders dated 23 January 2013 (being the Airport Watch List Orders) made in the Federal Circuit Court be discharged.
That the respondent mother (“the mother”) have leave to proceed with her application on an undefended basis.
That the mother have sole parental responsibility for the child.
That the child live with the mother.
That the child spend no time with the applicant father (“the father”) save for by order of the Court.
That the mother forward to the father a photograph of the child twice per year, to be posted to an address nominated by the father.
That the father be permitted to forward to the mother cards and gifts for the child on special occasions, to be posted to an address nominated by the mother.
That the father provide the mother with his current residential address within 48 hours of a change to the same.
That for the purpose of orders 8 and 9 the nominated address for the mother be that of C Street, D Town.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
That the order for an Independent Children’s Lawyer be discharged.
That all extant applications be otherwise dismissed.

IT IS CERTIFIED

That Counsel appear on behalf of the Independent Children’s Lawyer.

NOTATION

(A)The mother continue to ensure that the child receives ongoing counselling for emotional and psychological support and shall abide by all reasonable recommendations of the child’s counsellor.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 304 of 2013

Mr Salib

Applicant

And

Ms Salib

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

These parenting proceedings were heard on 11 May 2015 and orders made in the absence of the applicant father of one child of the marriage, B, aged seven years.
The mother sought to proceed with her application for parenting orders in response to the father’s application and sought leave to proceed with the hearing on an undefended basis in accordance with her Amended Response filed 29 April 2015.
I was satisfied that the father had been accorded procedural fairness and that it was appropriate to proceed in his absence. Accordingly I granted leave to proceed with the hearing on an undefended basis and heard short submissions from the counsel for the Independent Children’s Lawyer and the mother in person on the same afternoon.
The proceedings originated in the Federal Circuit Court and counsel for the Independent Children’s Lawyer supported the proposals of the mother. The proposals advanced by the Independent Children’s Lawyer and the mother were in accordance with the recommendations of the Family Consultant. Final parenting orders were made on 11 May 2015 and these are my reasons for making the orders.
The issues raised by the parents in their filed material essentially concerned parental responsibility for the child and whether the father should spend time with her having regard to unsuccessful attempts over many months to have the child spend time with him supervised by a contact centre. The child was the subject of state Children’s Court proceedings in 2009 and was placed in the care of her paternal aunt until she was transitioned into the sole care of the mother by October 2011.

Procedural Fairness

Following procedural orders made in this Court on 13 October 2014, the applicant father filed an Amended Initiating Application seeking the following orders:
1.All previous orders regarding the child be discharged;
2.The parties have equal shared parental responsibility for the child;
3.Orders for the child to spend time with the father for the first three months on a supervised basis and then a regime to increase non-supervised time and orders providing for the father to spend time with the child on special occasions;
4.Changeover be at a place agreed upon by the parties or at the child’s school;
5.Orders providing for an exchange of information about the child in the event of medical emergency and also the exchange of information about addresses for contact with the child.
The father filed an affidavit from Consultant Psychiatrist, Dr E on 16 December 2013, and his own affidavit in support of his application was filed on 5 December 2014. These were filed by solicitors acting on his behalf.
On 11 February 2015 a family report from family consultant, Mr H was released to the parties and on 27 February 2015 orders were made listing the matter for trial and for the preparation of trial material. An order was made for the Independent Children’s Lawyer to provide the family consultant with a copy of the reports from F Contact Centre for the preparation of an addendum by the family consultant for the purposes of the trial. Registrar Moser released the addendum to the family consultant’s report to the parties on 31 March 2015. On 10 April 2015, Registrar Moser varied the procedural orders for the filing of trial material for the parties by consent. This extended the time for the filing of material.
The father did not file any further material and failed to attend the mention hearing on 1 May 2015 after a Notice of Ceasing to Act was filed by his solicitors on 29 April 2015. There was no explanation for his failure to attend the mention hearing which was fixed for the purposes of ensuring readiness for trial.
On 29 April 2015, the mother filed an Amended Response to an Initiating Application together with her trial affidavit and an affidavit of the maternal grandfather of the child. These documents were served on the father by post by the solicitors for the mother on the same date that they were filed. The father had also been served with an Outline of Case document filed 4 May 2015 by post on 29 April 2015 to the address for service provided in the Notice of Ceasing to Act filed by his then solicitors on 29 April 2014. Two affidavits of service were filed to this effect on 11 May 2015 on behalf of the mother.
There was one substantive change to the final orders the mother sought in her Outline of Case which varied from her Amended Response. While the order sought in the Amended Response was that “the child shall spend time and communicate with the Father as agreed between the parties”, the order sought in the Outline of Case was “that the child spend no time with the Father save by Order of the Court”.
I am satisfied that the evidence relied upon by the mother and her Amended Response to the Initiating Application were properly served upon the father by way of post to his address for service which was notified to the Court.
The Independent Children’s Lawyer did not file any material after the father’s solicitors filed a Notice of Ceasing to Act on 29 April 2015, and joined in the orders sought by the mother. There was no prejudice to the father in proceeding with the hearing in his absence having regard to the recommendations of the family consultant which were made available to him.
On the day of the hearing, the father was called three times immediately upon opening of the Court and did not appear.
I am satisfied that the father had the opportunity to participate in the proceedings and that he did not indicate an intention to participate. I am satisfied that the father was accorded procedural fairness and that it was appropriate to proceed in his absence.

The Mother’s proposals

There was no issue between the parties that the child should live with the mother.
In her Amended Response to the father’s Initiating Application, the mother sought the following orders:
1.That all orders regarding [the child] be discharged;
2.That orders 2, 3 and 4 of the interim orders dated 23 January 2013 (being the Airport Watch List orders) be discharged;
3.That the mother have leave to proceed with her application on an undefended basis;
4.That the mother have sole parental responsibility for [the child];
5.That [the child] live with the mother;
6.That [the child] spend no time with the father save by order of the Court;
7.That the mother forward to the father a photograph of [the child] twice per year, to be posted to an address nominated by the father;
8.That the father be permitted to forward to the mother cards and gifts for [the child] on special occasions, to be posted to an address nominated by the mother;
9.That the mother be permitted to apply for an Australian Passport for [the child] without the need to obtain the consent of the father, and for that purpose she be permitted to provide a copy of these orders to the Australian Passports Office.
Counsel for the Independent Children’s Lawyer supported the mother’s proposals with the exception of the mother’s request to be permitted to apply for an Australian Passport for the child without the need to obtain the consent of the father. It was ultimately agreed between the mother and counsel for the Independent Children’s Lawyer that should the mother have sole parental responsibility for the child then it was unnecessary for any Court order to be made about any application for an Australian Passport, having regard to section 11 of the Australian Passports Act 2005 (Cth).
Counsel for the Independent Children’s Lawyer sought an additional order that the mother continue to ensure that the child receives ongoing counselling for emotional and psychological support and that she abide by all reasonable recommendations of the child’s counsellor. The mother agreed with this proposal.

The Father’s proposals which were not pursued

The father in his Amended Initiating Application filed 23 October 2014 sought the following orders:
1.That all previous orders in relation to [the child] be discharged.
2.That the parties have equal shared parental responsibility for the long term care, welfare and development of [the child].
3.That [the child] live with the mother.
4.That [the child] spends time with the father as follows:
a.For the first three months on a supervised basis;
b.For a further period of three months, on a non-supervised basis each alternate Saturday from 10:00 am to 4:00 pm;
c.After a combined period of six months, on a non-supervised basis from each alternate Saturday 10:00 am to Sunday 1:00 pm;
d.Thereafter, from after school Friday until 5:00 pm Sunday each alternate weekend;
e.During the first half of the school holiday term period in even numbered years;
f.During the second half of the school holiday term period in odd numbered years;
g.During the first half of the school summer holidays in even numbered years;
h.During the second half of the school summer holidays in odd numbered years;
i.If it falls on a day in which [the child] is not in the Father’s care;
i.On Christmas Day by agreement and failing agreement commencing in 2014 and each alternate year thereafter, from 4:00 pm on Christmas Eve to 4:00 pm Christmas Day and commencing 2015 and each alternate year thereafter, from 4:00 pm on Christmas Day to 4:00 pm on Boxing Day;
ii.On Father’s Day from 5:00 pm Father’s Day Eve to 5:00 pm Father’s Day;
iii.On the Father’s birthday from 4:00 pm until 7:00 pm should Father’s Day fall on a weekday and from 11:00 am to 5:00 pm if on a weekend.
iv.On [the child’s] birthday for a minimum period of 3 hours at times to be agreed between the parties, failing agreement from 4:00 pm to 7:00 pm if on a school day or from 11:00 am to 2:00 pm if on a weekend;
v.Each alternate New Year’s Eve from 4:00 pm New Year’s Eve until 4:00 pm New Year’s Day;
vi.By telephone at all reasonable times; and
vii.Any other time as agreed between the parties in writing.
5.That changeover takes place at a mutually agreed location or [the child’s] school.
6.That each party be reasonably permitted to telephone [the child], or allow [the child] to contact the other parent, whilst [the child] is in the other parents (sic) care and that the parent who [the child] is spending time with will make all efforts to facilitate this.
7.That the mother and father:
a.keep the other advised at all times of their respective residential addresses, email addresses, mobile and land line telephone number(s);
b.keep the other advised within 48 hours of any changes to their residential addresses, email addresses, mobile and land line telephone number(s);
c.keep the other advised in writing of any proposed/intended change to their residential addresses at least 28 days prior to the proposed/intended change;
d.keep each other informed of all medication prescribed to and or administered to the child in the 24 hours prior to any changeover;
e.advise the other immediately in the event that [the child] suffers any serious illness or injury;
f.do all things necessary and execute all necessary authority or such document so that both parties can be listed as contacts in the event of any emergency and in relation to [the child’s] social, educational, welfare and development (sic);
g.authorise any medical practitioner upon whom [the child] may attend from time to time, to communicate with the other in respect to [the child’s] medical condition and/or requirements;
h.keep the other advised of all sporting and extra-curricular activities in which [the child] is involved and permit the other to attend such function;
i.authorise all schools at which [the child] may attend, from time to time to:
i.provide the other, at the expense of the other, copies of all reports, notices and photographs in relation to [the child];
ii.communicate with the other, either by telephone, in writing or by personal attendance, in respect to [the child’s] progress; and
iii.attend all functions to which parents are normally invited.
8.That the Father and Mother shall be at liberty to provide a copy of these Orders to any one or more of the following:
a.the Principal or delegate of the Principal of the school attended from time to time by [the child];
b.any Medical Practitioner and/or allied health professional attending upon the child.
9.That a medical certificate is to be provided to the Father should [the child] be unwell to attend changeover with make-up time to be facilitated within 7 days.
10.That the parties refrain from using any illegal substances or alcohol whilst [the child] is in their care.
11.That each party be restrained from denigrating the other in the presence of [the child].
12.Such further or other Orders as this Honourable Court deems appropriate.

Evidence and standard of proof

For the purposes of the hearing the mother relied upon the following documents:
·Amended Response to the Initiating Application filed 29 April 2015;
·Mother’s trial affidavit filed 29 April 2015;
·Affidavit of the maternal grandfather filed 29 April 2015;
·Affidavit of Mr G, generalist psychologist, filed 9 January 2015;
·Mother’s Outline of Case filed 4 May 2015;
·Report of family consultant, Mr H, dated 30 March 2015;
·Report of family consultant, Mr H, dated 9 February 2015;
·Affidavit of Ms I, team leader responsible for the management of the services provided at the F Children’s Contact Centre in J Town, filed 23 February 2015; and
·Affidavit of Ms I, filed 11 December 2013.
The Independent Children’s Lawyer relied upon the following documents:
·Outline of Case filed 30 October 2014 before the updating of the family consultant’s report;
·Report of family consultant, Mr H, dated 30 March 2015;
·Report of family consultant, Mr H, dated 9 February 2015;
·Affidavit of Ms I, team leader responsible for the management of the services provided at the F Children’s Contact Centre in J Town, filed 23 February 2015;
·Affidavit of Ms I, filed 11 December 2013; and
·Exhibit ICL–1 – LEAP – Victoria Police criminal record of the father.
The relevant standard of proof is the balance of probabilities. I have applied section 140 of the Evidence Act 1995 (Cth) which provides that without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:
(a)The nature of the cause of action or defence;
(b)The nature of the subject matter of the proceedings; and
(c)The gravity of the matters alleged.
I am satisfied that the mother has provided evidence to prove her case on the balance of probabilities. The father has not elected to pursue his case, to challenge the mother’s evidence or adduce other credible evidence. Counsel for the Independent Children’s Lawyer did not take issue with the evidence of the mother and did not require any witnesses to be cross-examined. The evidence remains untested.

BACKGROUND

The child’s parents married in 2007 and separated on 1 January 2011, after having lived together since about 2003 on the father’s case and since 2006 on the mother’s case. Nothing turns on this in my considerations of the facts relevant to the orders I have made.
There are no other children of the marriage but the father has a son from a previous relationship who is aged 11. The father is unemployed and aged 40 and the mother is aged 29 and referred to her occupation as “homemaker”. The proceedings were initiated by the father on 17 January 2013 in the Federal Magistrates’ Court, as it then was, and interim orders were made by Federal Magistrate Hughes, as she then was, on 24 January 2013 which included an order for the child to be placed on the Airport Watch List. Those orders were made in the absence of the mother and orders 2, 3 and 4 provided for the parties to be restrained from removing or attempting to remove or facilitating the removal of the child from the Commonwealth of Australia without the written consent of the other party, and for the Commissioner of the Australian Federal Police to place the child’s name on the Watch List at all points of international departure from Australia for the purpose of preventing the removal of the child from Australia.

The mother filed a Response to the father’s Initiating Application on 7 March 2013. Interim orders were made by Hughes FM for the paternal aunt to be joined in the proceedings as the second applicant and for the parties to attend upon a conference under section 11F of the Family Law Act 1975 (Cth) (“the Act”) for the parties to attend reportable family dispute resolution with a family consultant in the Federal Magistrates’ Court. Interim consent orders were made on 14 March 2013 which provided for the paternal aunt to be joined to the proceedings as second respondent, for her to file an Application and accompanying Affidavit, and that she attend upon the family consultant together with the parents for the purposes of a section 11F report.
The paternal aunt filed an Initiating Application to spend time with the child on 19 the child 2013 and the section 11F assessment was completed by Mr K on 30 the child 2013. Interim consent orders were made by Judge Hughes on 2 May 2013 which included that the child live with the mother and spend time with the father at a supervised contact centre, where the aunt could also attend to spend time with the child. The orders provided for the mother to obtain a report from her psychologist and both parents to obtain supervised drug screens and for the father to undergo a forensic psychiatric assessment. Judge Hughes of the Federal Circuit Court transferred the proceedings to the Family Court of Australia on 30 October 2013 making orders for the appointment of an Independent Children’s Lawyer.
After further procedural orders made by Registrar Moser in this Court, procedural orders were made for the filing of affidavit material by the parties, the preparation of a family report and to remove the second applicant being the paternal aunt as a party to the proceedings.[1] The family report of the family consultant Mr H was released as previously outlined including ultimately an addendum to his report which incorporated his assessment of the supervised time spent by the father with the child at F Contact Centre.
[1] Orders made 13 October 2014
The father was assessed by Consultant Psychiatrist, Dr E and the doctor’s affidavit was filed in this Court on 16 December 2013.

Key issues

The living arrangements for the child, who has been living with her mother since October 2011, were not in issue between the parents in their filed material.
The issue of parental responsibility was raised by both parents in their filed material. Both parents indicated that they cannot and do not communicate with each other. The mother indicated to the family report writer Mr H, that for the purposes of parenting, she perceives there to be “a non-existent relationship” with the father and that she could not identify how or when their relationship might improve. The family report writer recommended that consideration be given by the Court to vesting the mother with sole parental responsibility for the child.
The father in his filed material sought to spend time with the child, initially supervised and ultimately unsupervised. This was opposed by counsel for the Independent Children’s Lawyer and the mother on the basis of the family consultant’s recommendations.

THE EVIDENCE

The evidence of the Mother

The mother deposes that she was introduced to injecting heroin by the father in order to “feel better” about her history of childhood sexual abuse, which she disclosed to him during the early months of their relationship. In December 2006, the father had made threats to kill the mother’s flatmate and refused to vacate her home. Soon after, the parties relocated from Queensland to Victoria to move into their own rental home after they were married. The mother says the father was increasingly abusive towards her, including by breaking her mobile telephone and prohibiting her from seeing her family or friends. She deposes that she was forced into sex work to pay for drugs.
The mother deposes that the Department of Human Services Child Protection Unit became involved with the family in February 2009 and that the child was placed in the care of her paternal aunt pursuant to an Order of the Children’s Court of Victoria. The mother deposes that she commenced supervised visits with the child followed by unsupervised time and then sole care by 2011.
The mother deposes that she did not leave the relationship earlier because of her fear of the father’s violence, and because she did not want to upset the father’s family so that she could continue to see the child regularly without hindrance. The mother deposes that she only felt safe enough to leave the relationship when the father was incarcerated and she wrote to him in or about January 2011 to inform him that she was leaving. She moved in with the maternal grandparents at this time.
On 17 June 2011 the mother was granted a final intervention order against the father for a period of one year. On 10 October 2011 the child was returned to the mother’s full-time care, and in June 2012 she and the child moved into a rental home close to her family.
The mother deposes that she has not used illicit substances since January 2011 and has consulted with a Salvation Army Drug & Alcohol Counsellor. She deposes to continuing to consult a Psychologist and a General Practitioner who assisted her to cease using Xanax and Valium. She discontinued the methadone program in October 2011. She also deposes to completing a Positive Lifestyle Program and two parenting courses conducted by Anglicare.
The mother deposes that throughout 2011, she was concerned about the child in the care of her paternal aunt. She deposes that the child made a series of allegations, including that the paternal aunt would severely denigrate the maternal family to her, fed her unhealthy food despite her obesity, failed to take her to specialist medical appointments, neglected to write in a communications book, failed to attend a parenting course as advised by the child’s Maternal & Child Health Nurse, and cut the mother’s head out of photographs of herself she had given to the child. She also deposes that the child said she was touched on her vagina by a friend of the paternal aunt. The mother reported this but no action was taken as the child did not make any coherent complaint to the investigators. I make no findings about the mother’s allegations against the paternal aunt as the evidence is untested and the paternal aunt has not been involved in this hearing.
The mother deposes that to the best of her knowledge the father was imprisoned until in or about November 2011. She believes the child visited the father six times for one hour on each occasion while he was in prison until July 2011, when she says he lost visitation privileges.
The mother deposes that in the 21 months between the father’s release and the supervised contact at F Contact Centre which commenced 4 August 2013, the father spent time with the child in November 2011 at a play centre, then a short period of supervised time on one occasion in December 2011, followed by approximately five minutes on 12 January 2012, when he was present at a changeover from the paternal aunt to the mother. This was the last visit for the child with the paternal aunt.
The mother deposes that the child would become teary and tell her that she is unwell on days of supervised visits. She deposes that the child would become angry about being forced to spend time with the father at the contact centre and would tell the mother that she was “scared” of the father. The mother deposes that the child started experiencing nightmares and wanted to sleep with her, developed eczema around her mouth, and developed an obsession with her hair whereby she did not want “bumps” in her ponytail. She deposes that she was told by one of the child’s teachers that the child had broken the belongings of other children without explanation.
The mother deposes to organising a counsellor at Relationships Australia for the child in or about December 2013.
The mother annexed her drug screens, dated 16 May 2013, 12 June 2013, 14 June 2013, 25 March 2014 and 17 April 2014 which indicate that no drugs were detected. Her General Practitioner in a letter dated 28 October 2013 and annexed to the mother’s affidavit, provides the opinion that there is no need for further urine drug screening for the mother.
The mother annexed a table of urine drug screen requests sent by her solicitors to the father’s solicitors between the dates of 3 May 2013 and 17 November 2014, totalling 11 requests. On five of these occasions the father did not provide a screen in response to the request, and on four occasions the father provided drug screens undertaken before the date of the request, on 3 May 2013, 18 July 2013, 24 July 2013 and 8 January 2014. Presumably, as the mother deposes, these were undertaken for another purpose and forwarded to the mother’s solicitors, rather than within the time frame following the requests.
The mother deposes that the child is progressing well in Grade 2 at a local primary school and is participating in swimming lessons and netball. Her weight issues are being controlled through a healthy diet and regular exercise.
The mother deposes that she financially supports the child with the assistance of her family but the father pays child support at the minimum rate. The mother deposes that she has commenced studies in counselling in February 2015 and that she has the support of the maternal family and friends, who live in the same town and are able to care for the child when necessary.
The mother submitted that unsupervised contact with the father is not in the child’s best interests in the present circumstances, but that this “may become appropriate in the future if [the father] addresses his illicit and prescription drug use and psychological issues”.
I accept the unchallenged evidence of the mother that she has rehabilitated and the child is progressing well at school. I accept her evidence that the child has been scared of the father and resistant and reluctant to spend time with him. I accept her evidence that the father was abusive towards her during the relationship, damaging her property and that she was in fear of him. I accept her evidence that she has the support of her family and friends and that she is no longer drug dependent. I accept her evidence that an intervention order was made against the father and in her favour for a period of one year in 2011.

Evidence of psychologist Mr G

The Mother filed an affidavit sworn by Dr Mr G, her treating Generalist Psychologist, annexing three letters dated 15 June 2011, 12 January 2012 and 17 December 2014 regarding the Mother’s psychological health.
I accept the evidence of Dr Mr G in the following terms. The letter of 15 June 2011 indicates that the Mother had relinquished a lifestyle of heavy drug use and prostitution and had sustained this over a six month period. Dr G also notes that the Mother has been well engaged in the therapeutic process and provided clean urine screens to prove this. He records that the mother succeeded in removing herself from contact with friends in Melbourne and the father through the “Relapse Prevention” program and that she has also been addressing her childhood sexual abuse using Eye Movement Desensitisation and Reprogramming Therapy (EMDR).
In the letter of 12 January 2012, Dr G repeats much of the mother’s history, and further noted that she has significant traffic infringements to resolve. He notes that she has successfully engaged in the Methadone Program and Solution Focused Therapy for her substance use and is working to address her childhood sexual abuse and issues arising from the separation and from not having her daughter in her full-time care. Dr G’s opinion was that the mother’s chances of a relapse were “very low” at the time of writing the letter.
The letter of 17 December 2014 supports Dr G’s previous letters. He writes that the Mother continued to see him in 2013 because the child was becoming distressed around access times. He notes that in late December 2014, the Mother re-engaged to seek directions about her chances of finding employment in the welfare sector. Dr G writes in relation to this that he “would not hesitate to recommend [the Mother] provided she gains the necessary training to work in this field and would see her life experiences as an asset”. He notes that the mother has completed short courses to update her computing skills, has regained her driver’s licence, now lives independently in her own home with her daughter, and is living within her means. He reports that both the mother and the child have developed good friendships. He mentions that the Mother reported that the child becomes distressed about visits with the father at F Contact Centre and that contact is temporarily paused at times. He concludes by saying that he “has been impressed with [the Mother’s] on-going development and it is a credit to her strength of character that such growth has occurred”.
Dr G consistently praises the mother’s parents, who have been good supports for her throughout.

The evidence of the Maternal Grandfather

The maternal grandfather in these proceedings swore an affidavit on 27 April 2015. I accept his unchallenged evidence in the following terms.
On a night in March 2008, the maternal grandfather deposes to seeing the mother and the father at the residence of the paternal grandmother. He says that the father “appeared to be heavily drug affected and was very aggressive and verbally abusive towards [the maternal grandmother] and I so we had no option but to leave the home”. He deposes that later that night, he received a phone call from the mother’s older half-brother saying that he had received a call from the mother saying “she wants to get out” and was scared of the father. The maternal grandparents called the police, who attended at the paternal grandmother’s home. The mother and the child stayed with the maternal grandparents on that night but then decided to return to the father. The maternal grandparents did not stop her but contacted the Department of Human Services, as it then was, to report concerns about the wellbeing of the mother and the child.
The maternal grandfather deposes that thereafter during 2008 he received phone calls from the father, some of which were verbally abusive.
Over the Christmas period in 2008, the maternal grandfather describes in his affidavit evidence collecting the mother and the child to take them to their home in D Town for a two-day visit. He deposes that both of the addresses he attended with the mother’s brother were empty, and that the back door of the second property was “smashed”. The neighbours at that second property described the father as a ‘maniac’ who they had witnessed screaming abuse at [the mother]. The maternal grandfather was also told by the neighbours that the father had dragged the mother by the hair, down the side of the house. The maternal grandfather deposes that he found the mother and the child at the first property when they returned there and left quickly as the father was observed to be severely drug-affected.
During the two-day visit, the maternal grandfather deposes that the mother was constantly “harassed via telephone” by the father. When the mother’s brother returned her to the father on 28 December 2008, he reported to the maternal grandparents that the father was “drug affected and abusive and physically attacked” the mother’s brother. The maternal grandfather deposes that he received numerous abusive and threatening telephone calls from the father and his sister.
Later that night, the mother called the maternal grandfather who said she had “snuck out” to a telephone booth to call them. On 29 December 2008, the maternal grandparents applied for, and were granted, an intervention order against the father.
The maternal grandfather deposes that in January 2009 he discovered that the mother had criminal charges against her in the Magistrates’ Court at Sunshine. He deposes that he and the maternal grandmother unknown to the father, saw the mother in an interview room at the Magistrates’ Court. He deposes that the mother “looked terrible; very thin and unwell – I would describe her as looking defeated”.
The maternal grandparents next contact with the mother and the child was in August 2009, when upon receiving a phone call from her they arranged to meet her in Melbourne. The maternal grandfather deposes that the mother “was nervous to the point of physically shaking”, and that she was constantly receiving calls from the father who appeared to be demanding to know where she was.
The maternal grandfather deposes that he then received a phone call from the mother on 26 October 2009. When the maternal grandparents attended at the address provided by the mother, the father refused to allow them take her to the hospital. They eventually persuaded both parents to attend the Northern Hospital where the mother was found to have only 25 per cent kidney function. The mother remained in the Intensive Care Unit for five days. The maternal grandfather describes being exposed to verbal abuse by the father when they were at the Emergency Department.
In early November 2009 the maternal grandfather received a telephone call from the mother who had discharged herself from hospital according to the father’s wishes against medical advice.
When the mother was sentenced to one month’s imprisonment on 2 November 2009 in the Magistrates’ Court in Sunshine, the father was observed to become abusive towards the Magistrate. The maternal grandparents, who had attended for moral support, learned then that the child had been removed from the parties by the Department of Human Services some months earlier.
The maternal grandfather deposes to receiving calls from a man who identified himself as “Mr L”. Soon after the mother’s admission to Northern Hospital, Mr L called to say he had been present with the father at the hospital and said that the father has “complete control” over the mother and is violent towards her. Soon after in November 2009, he communicated with the maternal grandparents again on several occasions, saying that the father was forcing the mother into sex work and that he was very violent towards the mother.
The maternal grandfather deposes that he received text messages about Mr L which were signed with the mother’s name during the period she was incarcerated, calling him a liar. The maternal grandfather deposes that he assumed that these messages were from the father. After these messages, the maternal grandfather deposes that he received a telephone call from Mr L who sounded very scared and said he had lied to the maternal grandparents. The maternal grandfather deposes that he could hear the father in the background dictating to Mr L.
The maternal grandfather found that the mother had further criminal matters listed for 2 December 2009, on which date the maternal grandparents attended. He deposes that he was told by the mother’s then solicitor that “if you want to keep [the mother] alive you’ll need to find a way to make a friend of [the father]”.
The maternal grandfather deposes that in the child 2010, a man identifying himself as “Mr M” called the maternal grandmother’s workplace and made allegations that she was stealing drugs and getting the mother’s brother to sell them. The maternal grandmother identified the number as the father’s mobile telephone number.
In September 2010, the maternal grandfather deposes that he received a telephone call from the mother who said that the mother and the father were unhappy staying at the paternal grandmother’s home. The maternal grandparents arranged to move the parties into their investment property and joined the Department of Human Services proceedings regarding the child.
In early 2011, the maternal grandfather deposes that he was informed by the mother that she had separated from the father and that he had been incarcerated. She moved into the maternal grandparents’ house and began spending regular time with the child.

In relation to the child, the maternal grandfather deposes that the maternal grandparents have a “close and loving relationship” with her, and that the child was not observed to be “her usual self” during the period when she spent time with the father. The changes the maternal grandfather noticed were that she cried and refused to get dressed prior to the F Contact Centre visits, became angry at the mother for “making her go” to F Contact Centre, she suffered from nightmares and cited “Dad” as the reason without further elaboration, and obsessed about her hair being done “perfectly” and hit herself in the head with her hairbrush if her hair was not done to her satisfaction.
The maternal grandfather deposes that the child told him that the father “scares her”. He deposes that the child says she is tired of talking to her counsellor and the people at F Contact Centre and that she “just wants a normal life”.

The Father’s Criminal Record

The Independent Children’s Lawyer produced an extract of Victoria Police LEAP records dated 22 May 2013 in relation to the father’s criminal record pursuant to subpoena. I accept that evidence. It reveals a history of violence, dishonesty, and driving and drug-related offending since the age of 16. The record shows several periods of imprisonment over the past 10 years.
I note that the father’s offending demonstrates a reckless disregard for the law which includes breaching intensive correction orders.
The extract is over two years old and no further information about the father’s offending since May 2013 was produced. Annexure DNS-9 to the mother’s trial affidavit refers to a daily list in the Magistrates’ Court at Melbourne for a contest mention listed for the father on 24 April 2015 in relation to unspecified charges.

The evidence of Ms I

Ms I, Team Leader at F Children’s Contact Centre (“F”), filed three reports dated 22 October 2013, 1 February 2014 and 26 September 2014 which were compiled from notes made by the workers involved in the case from time to time. I accept her unchallenged evidence in the following terms.
The three reports indicate that supervised contact proceeded on a total of ten occasions. Four scheduled visits were cancelled by the father, one was cancelled due to the child having head lice, and two were cancelled due to a coal mine fire in the area where F is located. The father was late on several occasions and cancelled one visit scheduled on 30 March 2014 due to issues arriving on time from his residence a significant distance away. Two visits ended early in accordance with the child’s wishes. During the first supervised visit on 13 December 2013, the child said that she wanted to end the session early but had forgotten the code words to signal this. During the visit on 2 March 2014, the child indicated that she wanted to end the session early, but was convinced to return to the session for the three minutes which remained.
The F report demonstrates that the father sometimes refers to the ongoing Family Court proceedings, mentions make-up contact time and makes comments about the mother in the child’s presence or within her earshot. The report compiled by Ms I noted that on several occasions throughout this period the father mentioned that “Judge said she needs to ‘shut her mouth’ and the child ‘needs to do what she is told’”.[2] The father cited his long travel periods to and from F on several occasions as a reason for wanting to reschedule the session time, wanting the child to “talk more”, or keeping sessions to one and a half hours.[3] He repeated during several conversations that the child was “indoctrinated” and once said that “[the mother] doesn’t own the child, she is owned by the Courts”.[4]
[2] Page 9 of Annexure “VW-3” to Affidavit of Ms I.
[3] Page 48 of Annexure “VW” to Affidavit of Ms I; page 9 of Annexure “VW-2” to Affidavit of Ms I.
[4] Page 28 of Annexure “VW-3” to Affidavit of Ms I.

History of supervised visits with the Father

I accept the evidence of the history of the supervised visits between the father and the child in the following terms. The father’s supervised time with the child at F was suspended as the child refused to spend time with him. The visits ceased in late September 2013 but recommenced in mid-December 2013. However, the child again did not want to spend time with the father and F indicated that they would review the situation in March 2015.
Supervised time with the father occurred for the first time on 4 August 2013 after the initial visit scheduled on 21 July 2013 was cancelled due to the father citing ill health. No supporting documentation was provided. Two further visits occurred before the visit on 15 September 2013 was cancelled, again due to the father’s ill health. Copies of medication boxes were provided dated 13 September 2013 and 14 September 2013. A Medicare slip was provided on which the date was illegible. It was reported that the child warmed to the father more easily with successive visits, but continued to show mixed signals such as reluctance to have her photo taken.
On 29 September 2013, the child ended the visit early, and later told the Case Supervisor that “I don’t want to see him. I don’t like him and I don’t want to see him”. Upon further prompting she said “I never want to see him. I feel worried and sick and I don’t sleep properly now.” The Case Supervisor then reports the following:
[The Case Supervisor] asked the child if she meant that she didn’t want to see him today or ever again. [The child] said “never again. I didn’t even want to see him”. [The Case Supervisor] asked [the child] if she thought she might miss him if she never got to see him again and she said “no”.
In the conversation with the mother following the end of the visit, the Case Supervisor reports that:
[The Case Supervisor] said that she had spoken with [the child] after she had ended the contact and that [the child] had said she never wants to come here again. [The mother] said that [the child] has never wanted to come here and that she has had to make her. [The mother] said that [the child] said to her this week “I just want things to go back to how they were”, meaning not seeing her dad.
A Child Familiarisation Visit occurred on 3 October 2013 when the following exchange occurred:
[The Team Leader] asked [the child] if she will see her Dad. She said yes, then no she doesn’t want to. [The Team Leader] commented that she had just said yes and then said no and this was confusing. [The child] asked if she had a choice. [The Team Leader] said she does. [The child] said she didn’t want to see her Dad anymore. [The Team Leader] asked if she would... come less often such as monthly, she said no. [The Team Leader] advised her that she won’t be able to come and play at [F] anymore and won’t see her Dad for a while. [The child] nodded. [The Team Leader] asked if she was sure there wasn’t anything workers could do to make it better such as having two workers, [the child] said no.
In accordance with the child’s wishes, F suspended contact and informed the parties and their lawyers (including the paternal aunt and her lawyer, as she was at that time still a party to the proceedings) on 8 October 2013. F determined to review the case in two months’ time.
On 19 November 2013, a Child Familiarisation Visit took place where the child was asked whether she would like to have another attempt at spending time with the father. The child reportedly said she would, but that she did not want to see him. The child asked questions about the amount and nature of time she would have to spend with the father, such as whether she would have to go to the father’s house or sleep there.
Supervised contact occurred on 13 December 2013. The father arrived extremely late to the appointment and the mother deposes in her affidavit that the visit only lasted 45 minutes. When the father arrived the child said “I don’t want Dad to sit next to me.” She refused to give the father a photo of her or to let him take one of her, and refused to let him tickle her. She refused to give him cotton balls to stick on the picture he was drawing and said that if she was given his picture she would throw it out. At the end of the supervised time the child refused to give the father a hug and a kiss.
Contact occurred again on 26 January 2014 after the father cancelled an appointment on 29 December 2013 citing a surprise birthday party and missed an appointment due to misreading the date on 10 January 2014. The child appeared to be friendlier towards the father. She gave him a cuddle when he asked for one, and allowed him to kiss her. She told the father he could get a photo of her but later on during the visit. During the visit the father talked about his relationship with the mother and with the mother’s parents, as well as about his lawyer and dates of contact. They played a game together without the involvement of the Team Leader, after which the child said the code word and told the Team Leader she wanted to go home because she had had enough for that day. She posed for a picture when the father asked her before she left.
An appointment for 7 February 2014 was cancelled because the child had head lice. F was closed on 16 February 2014 and the subsequent visit scheduled for 21 February 2014 was cancelled due to fire safety concerns.
The next contact occurred on 2 March 2014 where the Contact Supervisor observed the child to be “the most relaxed she’s been in any contact that [that Case Supervisor] had supervised”. The father arrived 22 minutes late and brought in several toys to give to the child. She played with the father until there were three minutes left in the session, at which time she used her code word. She was told that there was only a short time remaining in the visit and agreed to stay until the end.
During the next contact on 16 March 2014, the child said she wanted to leave with approximately 15 minutes of the visit left. The Team Leader and the father convinced her to play another game with them. She reluctantly agreed to have her photo taken with the father.
The father cancelled a visit scheduled on 30 March 2014, citing travel inconveniences and criticising the mother for not letting him start the contact session half an hour later.
The child and the mother attended F on 13 April 2014 for scheduled contact. The Contact Supervisor noted this before the session commenced:
[The Case Supervisor] asked if she was happy to see her Dad today and [the child] said no...
[The Case Supervisor] asked [the child] if she thought she might be OK to at least spend some time with her Dad today. [The child] said no again. [The Case Supervisor] asked [the child] how she felt when she sees her Dad and [the child] said ‘scared’. [The Case Supervisor] asked what [the child] was scared about and she said ‘the way he looks at me’.
The Contact Supervisor noted that the child was disobedient and that she put play dough in her ears against the father’s and the Contact Supervisor’s instructions. The child refused a hug and a high five.
On 27 April 2014, the child was noted to be crying when the Case Supervisor first saw her. The Case Supervisor noted that the child said “she did not want to see her father and that he was mean”, and that “she hadn’t wanted to be here and was just trying to be okay because she had to come”. The Case Supervisor noted an incident where the father insisted on taking a photograph of the child and when she refused, reportedly said that “she couldn’t have everything she wanted”. When the child said that she wanted to go home and refused to have her photo taken, the father:
said to [the child] that she couldn’t get her own way and [the child] said that she wanted to go home. [The father] put his arm out and said to [the child] that he had travelled a long way to see her and that she couldn’t just go home. [The father] said to [the child] that she is a “spoilt little brat”...
[The child] continued to say she wanted to go home. [The Case Supervisor] said that she needed to wait until her mother arrived. [The father] raised his voice and said to [the child] that she couldn’t have everything that she wanted. [The father] copied what [the child] had said and repeated “I want to go home now”. [The father] closed his eyes and rolled his head around, his eyes rolled in his head and he repeated “I want to go home now.” [The child] frowned and he made kissing noises to [the child] and she said no. [The father] said he loved her, [the child] said no.
At the Child Familiarisation Visit on 2 May 2014, the child said in response to the manager’s questioning that “she tells her Mum all the time that she doesn’t want to see her Dad and that every time they drive over here she cries and tells her Mum to turn around but she won’t”. When asked if there were some parts of spending time with the father that she likes, the child said “no”. She said she felt “not good” when she spent time with the father and that there was nothing good about seeing the father. the child went on to say:
Her dad is mean to her and mean to her Mum. [The child] said that the last time she saw him she wanted it to end and then he said she was being selfish and that it will never end early again and that her Mum was an “effin” bitch. [The Acting Team Leader] asked [the child] when he said this and [the child] said that after he left the room she heard him say these things. [The child] said that “he called me selfish, but I think he’s selfish”.
When asked whether she would like to take a break for a few months, the child said “no”. Shen asked why she didn’t want to take a break, she said “I never want to have to see him again”.
On 6 May 2014 the parents, their lawyers and the Independent Children’s Lawyer were informed that the contact was on hold due to child refusal and that this would be reviewed in three months’ time.
On 29 August 2014 F Contact Centre undertook a Child Familiarisation Visit where the child gave mixed messages: “[The child] was asked if she wanted to come back to see her father, [the child] said maybe and [the child] was asked to tell the truth and if she wanted to see her father, she said a stern ‘no’”. The child specified that she wanted six months before F Contact Centre contacted her again, and F acceded to her wishes. The parents, their lawyers and the Independent Children’s Lawyer were informed on 26 September 2014.
At the undefended hearing, counsel for the Independent Children’s Lawyer informed me that the child has since spent no time with the father in the following terms:
...the policy adopted by the centre was that they would give [the child] some space and give her three months, then six months, ask her again whether or not she wanted to see her father and no time has transpired from that.

The report of Consultant Psychiatrist Dr E

Dr E completed an assessment of the father for the Federal Magistrates’ Court proceedings and his report is dated 29 July 2013. I accept the unchallenged evidence of Dr E provided by the father.
In that report he noted that the father stated that he had no contact with the child for the past 14 months. His opinion of the father is as follows:
1.At the present time I consider that in view of [the child’s] tender years and the duration of noncontact and the apparent reasons for that noncontact that access should be supervised and monitored for an adequate period and that this should occur in the presence of independent professionals who are skilled in such matters.
2.In view of the length of time that [Mr Salib] has been receiving methadone, I would suggest that the current dosage be reviewed and if it is not to be altered then the court should be supplied with reasons for that decision.
3.Likewise, the current dosage of diazepam and Serepax (both are sedative benzodiazepines with a propensity for tolerance and habituation) should be reviewed. The symptoms that [Mr Salib] experiences that seems to necessitate the use of this medication should likewise be reviewed with the potential objective of finding alternative solutions.
4.I consider that [Mr Salib] should avail himself of further neurological opinion with respect to his grand mal epilepsy and whether an alternative anticonvulsants to Clonazepam (which is also a benzodiazepine) may be appropriate.
5.In view of the advice that [Mr Salib] should be responsible for transport arrangements with respect to access to his daughter, it would seem that it is necessary for him to regain his driving licence.
6.In view of his declared estrangement from his family of origin, caution should be exercised in reintroducing the child into [Mr Salib’s] family of origin in order to avoid confusion in the child’s mind.
7.If at all possible, an assessment of the relationship between [Mr Salib] and the members of his family of origin could well be illuminating and helpful.
I note that this report is almost two years old but have taken it into account as it was filed by the father.

The family report of Mr H dated 9 February 2015

The family consultant, Mr H prepared a report dated 9 February 2015 and an addendum report dated 30 March 2015. His first report was compiled without the benefit of the reports from F because the information was not provided to him. It was subsequently provided to him for the preparation of the addendum report.
Mr H’s report was limited because he did not observe the father and the child as the father elected not to proceed with the observation session. However I accept the unchallenged evidence of Mr H in both reports.
The family consultant noted the child’s “generalised opposition to spending time with her father without any clear reference to him having done anything to particularly upset her during the supervised sessions.”
The report writer commented about the father in terms of his presentation:
During assessment, [Mr Salib’s] presentation was of significant concern to the writer. For example, there were instances when he was physically agitated and when his responses seemed confused and disjointed. In addition, there were consistent occasions when his eyes were partially closed or appeared unfocused. Although the writer cannot be definitive about this issue, [Mr Salib’s] presentation suggested the possibility that he might have been under the influence of some substance.
Mr H made the following recommendations:
·The Court give consideration to investing primary parental responsibility for [the child] in the mother, predicated on the clear understanding that the father is kept advised about major issues occurring in [the child’s] life and which affect her general development and wellbeing. He also recommended that the father receive regular photos of [the child] (twice yearly);
·That the father be allowed to forward gifts and cards to [the child] on special occasions (for example birthdays and Christmas);
·That [the child] live primarily with her mother;
·That [the child] not be required to spend time with her father;
·That [the child] continue to attend upon her counsellor for emotional and psychological support.

Addendum family report of 30 March 2015

Mr H undertook a limited assessment without interviewing the child or the parents again. He focused upon the February 2015 F report which reflected events from mid-February 2014 until September 2014. He noted the following issues which were evident from that report in relation to events subsequent to January 2014:
·The child has not spent any time with her father since 27 April 2014, at which time she requested the visit to end earlier than scheduled;
·Although there were reports of some positive interaction between the child and her father there were also instances when the child appeared hesitant and apprehensive and at times adamantly opposed to spending time with him;
·The child displayed certain defiant behaviours during sessions with her father and particularly in the latter sessions which suggested she was unhappy with how the sessions were progressing and that she wanted them to end early;
·The child’s opposition towards spending time with her father appeared to become more pronounced during the last two visits. In late April 2014 she refused to spend any further time with her father, despite what appeared to be ongoing concerted attempts by staff to facilitate the supervised sessions between the child and her father.
·Whilst there were instances when the father acted in an appropriate manner with the child and the staff at F, there were also occasions when concerns were raised about his behaviour towards them. These concerns became more pronounced during their supervised visits in April 2014;
·The father was dissatisfied and frustrated with the conduct of the sessions and at times was also critical of the mother’s attitudes and role in facilitating them. He expressed particular concern that the child had been “indoctrinated” by the mother;
·The mother reported increasingly concerning behaviours displayed by the child in a variety of settings (including home and school) which she suggested were associated with the child spending time with the father;
·The mother insisted that she had sought to encourage the child to attend the sessions with her father but that the child became increasingly opposed to doing so;
·Subsequent to the final visit between the child and her father on 27 April 2014, the staff from F conducted followup visits with the child on 2 May 2014 and 29 August 2014 to ascertain her views about spending time with the father. On both occasions, albeit more so in May 2014, the child stated that she did not want to spend any further sessions with him, despite attempts by the staff to encourage her to do so.

The recommendations of the family report writer remain the same in the addendum report and he noted that the new information received did not substantially change any of the previous views held by the writer or the recommendations. The family report writer noted that “In many respects, the new information simply confirms the issues previously raised by the writer. On that basis, the writer would reaffirm the previous assessment and the recommendations made therein.”

LEGAL PRINCIPLES

In deciding to make any parenting order, the child’s best interest must be the paramount consideration under section 60CA of the Act. In determining what is in the best interests of the child, the Court must consider the primary and additional considerations set out in ss60CC(2) and 60CC(3) of the Act. Any determination of what is in the best interests of the child must be made in a way that is consistent with the objects and the underlying principles in section 60B of the Act.

The primary considerations

The primary considerations are:
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or being exposed to, abuse, neglect, or family violence.
In applying the primary considerations greater weight must be given to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.[5]
[5] Family Law Act 1975 (Cth), s 60CC(2A).
The psychiatric report of Dr E indicated that given the child’s “tender years and the duration of non-contact and the apparent reasons for that non-contact that access should be supervised”. The family report writer Mr H recommended that the child not be required to spend time with the father.
I accept the evidence of the staff at F about the father’s conduct there which is also of concern. I find that the father has made inappropriate comments about the mother and the court proceedings, within the hearing of the child. The records also reveal some unreliability on the part of the father in attending F.
Although Dr E’s report is dated, I accept his evidence which raises concerns about the father’s mental and physical health. The report recommended review of the father’s prescribed medication and neurological condition. There is no evidence that this has occurred. The evidence of the family consultant corroborates concerns about the father’s drug use and medication.
It is also significant that the father was not prepared to participate with the child in an assessment by the family consultant. The reason for this is unclear but the father has failed to produce evidence to diminish any of the concerns raised by the professionals.
I am satisfied on all the evidence that the mother does not present a risk to the child. I am satisfied that the father does present a risk of harm to the child should she be forced to spend time with him. I accept the evidence of the father’s significant prior criminal history. He has been imprisoned for a variety of offences including robbery, reckless conduct endangering serious injury, driving whilst disqualified, burglary and theft. The father has been convicted and imprisoned for robbery in 2011 for which he was sentenced to an aggregate period of nine months’ imprisonment. He was also convicted for reckless conduct endangering serious injury and convicted in 2011 for failing to comply with sentencing orders such as an intensive correction order. The father was convicted in 1997 on drug charges which included trafficking for which he was sentenced to a total effective term of three years imprisonment with a non-parole period of one year and ten months’ imprisonment. The father has a significant criminal history for both crimes of violence and matters of dishonesty and drug related offending.[6]
[6] Exhibit ICL-1
The father’s criminal history is relevant to his propensity for violence and adds weight to the evidence deposed to by the maternal grandfather as to the threats he has made to the maternal family.
I accept the evidence of the mother that the father perpetrated family violence against her during the period in which they co-habited although she concedes that there have been no direct threats to harm her since separation.
I accept the evidence of the maternal grandfather that the father made threats against the maternal family to harm them in 2007, 2008 and 2009. The maternal grandparents obtained an intervention order against the father in late 2008 but this has now lapsed. Although he has not pursued his application, the father alleges that the mother and her family are “bikies” and affiliated with a motorcycle group. There is no evidence to support this allegation. I accept the other evidence of the maternal grandfather about the dishonest conduct of the father and having regard to the father’s prior criminal history of dishonesty, I reject his assertions about the mother and maternal family.
The significant issue when the parents filed their material was whether the child should be required to spend time with the father in circumstances where supervised contact had been unsuccessful and she had communicated her views very clearly to the family consultant and the staff at F. The father has not pursued this.
Although the father in his filed material, does not challenge the mother’s capacity to parent the child having regard to the fact that no issue was taken with the child living with the mother, he nevertheless referred to the mother’s history of drug use and the substantial involvement of the Department of Human Services with the family over the years. The child was removed from the care of the parents and placed into the care of the paternal aunt from February 2009 but with a reintroduction of contact with the mother until October 2011 pursuant to a Children’s Court supervised custody order which expired on 17 January 2012. I accept the mother’s evidence that she was imprisoned for one month for driving whilst disqualified.
However I accept the evidence of the family consultant about the mother that despite her history of drug use and intervention from DHS that she appears to share a very positive relationship with the child and that the child perceives her to be someone “who can, and does provide her with emotional nurture (sic) and practical support.” I accept the evidence of the family consultant that the mother’s presentation during assessment coupled with reports from her counsellor clearly indicate that she has significantly addressed the issues in her life that would have historically compromised her parenting role for the child. I accept his evidence that the mother displayed appropriate insight into the child’s emotional and practical needs as well as issues associated with her parenting. I accept his observation that the mother now appears to be receiving positive familial and professional support.
I accept the opinion of the family consultant that he was not confident that any material provided by the father could be relied upon as being accurate having regard to his presentation during the assessment. I accept the evidence in the reports from F staff about the father’s functioning during their involvement with him which are of concern and suggest that there were numerous instances of the father displaying difficult behaviour, despite periods of also acting in an appropriate manner.
I accept the opinion of the family consultant that the father’s assertion that the child’s views have been influenced by the mother are simplistic and that instead there are a range of more complex factors that have contributed to how the child perceives the father. He emphasized that he saw no clear evidence of the alleged “indoctrination” of the child by the mother. I find that on the balance of probabilities, the mother has not negatively influenced the child against the father and that in fact she has cooperated in facilitating the supervised contact sessions with the father despite the consistent reluctance on the part of the child. I accept the evidence of the maternal grandfather and the mother about the child’s attitude towards spending time with the father. The mother has demonstrated some resilience in these circumstances by ensuring the child’s attendance at F.
I accept the opinion of the family consultant where he foresaw: “significant, and most likely insurmountable difficulties in attempting to implement arrangements for the child to spend any form of time with her father in the future. For example, concerted attempts had already been made to facilitate the child’s relationship with her father and them spending consistent time together, but with minimal success. I accept the evidence of the family consultant, based on the reports from F:
...that considerable effort had been made in encouraging [the child] to spend time with her father and to assist [the mother] to interact with [the child] in a positive manner. Despite these efforts, [the child] has displayed consistent apprehension about, and maintained concerted opposition towards spending time with her father in such circumstances.
The writer believes that subjecting [the child] to further attempts to implement arrangements for her to spend time with her father will most likely expose her to heightened levels of emotional distress. In addition, there is a clearly identifiable risk that [the child’s] relationship with her mother could become significantly compromised if the latter is required to effectively force [the child] to spend time with her father in circumstances where [the child] is so vehemently opposed to doing so. This has the potential to seriously undermine the primary attachment relationship she has with her mother; an issue that is particularly important for [the child] in the light of her disrupted ‘care’ history. Whilst cognisant of the important implications that ensue when making any recommendation for a child not to spend time with a parent, the writer nevertheless believes this is a case where, on balance, the child’s best interests would be more appropriately met if she was not required to spend time with her father at this stage.[7]
[7] Family report dated 9 February 2015, par 70 and par 71.
Having regard to all of the evidence but particularly the evidence of the family consultant, I am satisfied that in balancing the primary considerations, the need to protect the child from psychological harm by undermining her relationship with her primary carer, the mother, must outweigh any benefit to the child which might ensue from having to spend time with the father in circumstances where she is implacably opposed. This would not promote a meaningful relationship with either parent. There is a need to protect the child from being exposed to the volatile conduct of the father which has been recorded by the staff at F, Dr E and in the presentation of the father to the family report writer. The evidence which I accept, of the father’s propensity for violence and the evidence of his threatening relationship with the mother and her family is a primary consideration calling for the protection of the child.

The additional considerations

The additional considerations are listed in section 60CC(3) of the Act. I have taken into account only those considerations which are relevant to the facts and circumstances of this case. I have considered the additional considerations in the context of the primary considerations.

Section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

Having regard to the unsuccessful trials at F where the child has been presented to spend time with the father, it is clear that the child does not wish to spend time with him. The child’s views have been clearly and consistently noted by the family consultant as previously outlined and I have placed considerable weight on those views notwithstanding that she is only seven years of age. This is because of the history of instability in the relationship with the mother which has now been improved and because of the need for reinforcement of that primary relationship as outlined by the family consultant. It is not in the best interests of the child that she be compelled to spend time with the father in these circumstances.

Section 60CC(3)(b): the nature of the child’s relationships with each of the parents and other persons

The child’s relationship with her mother and the maternal grandparents as outlined by the mother’s psychologist and the family consultant is significant and must be emphasised in the context of the previous interruption when the child was in the care of the paternal aunt. There is no evidence of the child’s relationship with the paternal aunt but the mother is now the primary carer and I accept the evidence of her rehabilitation.
The child has not had a stable relationship with her father and it would appear that she has witnessed the negative attitude of the father towards the mother which has caused her distress. This is having regard to the comments that she made to the staff at F.
The conduct of the father at the contact visits at F would appear to have put pressure upon the child and at times has been inappropriate. An example of this is his discussion about the court proceedings and insistence on taking photographs of the child in circumstances where she was reluctant to agree. It is significant that the child has told the staff that she is scared of her father. The raising of his voice as previously outlined, and the emphasis upon his own inconvenience in attending the visits is an example of his lack of insight and lack of child focus.
The child is clearly affected by the father’s denigration of the mother which it would appear she has overheard as outlined in the reports from F.
The child does not have a close relationship with her father at present on all the evidence. The relationship she does have is tenuous as a result of the father’s own conduct. The father is not pursuing his application.

Section 60CC(3)(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, to spend time with the child and to communicate with the child

It is clear that the parents have been unable to cooperate regarding decisions about the child and that this is unlikely to improve based on the failed history of cooperation reported by both parents. The father is not seeking to participate in decision making for the child.

Section 60CC(3)(ca): the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

The evidence is that the father pays child support at the minimum rate and to the best of the mother’s knowledge the father is in receipt of the Disability Support Pension. The mother has provided for the financial support of the child since she has been in her full time care and continues to do so. She commenced a counselling course in February 2015 consistently with the wishes she expressed to Dr G in late 2014 about pursuing a career in the welfare sector.
On all the evidence the mother also has the financial support of the maternal grandparents.

Section 60CC(3)(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

Since October 2011, the child has been living in the full-time care of her mother in D Town and prior to that time spent substantial and significant periods of time with the mother. I accept the evidence that the maternal grandfather and the maternal grandmother have a close and loving relationship, and the mother has family and friends in D Town who will be available to look after the child when she is studying or working. I accept the evidence that the child is progressing well in Grade 2 at primary school and is involved in extra-curricular activities.
I am satisfied on all the evidence, that it is not in the best interests of the child to compel her to spend time with the father, whether supervised or unsupervised. I accept the evidence that this would not be in the interests of the child taking into account the behavioural and emotional problems she displayed during the trial periods of supervised time with the father at F.

Section 60CC(3)(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 father is not pursuing his application. Having regard to the report of Dr E and the report of the family consultant, I have serious reservations about the father’s capacity to provide for the emotional and intellectual needs of the child.
I am satisfied on the basis of the report of the family consultant and the report of Mr G that the mother has the capacity to provide for the needs of the child including emotional and intellectual needs. Dr G in particular praised the Mother’s success in avoiding substance use since February 2011 and was very supportive of her interest in pursuing a career as a counsellor given her life experiences, provided she received appropriate training.
On the evidence of the reports from F, I am satisfied that the mother has endeavoured to facilitate the child spending time with the father there. On all the evidence, I do not accept that the mother is the source of the child’s reluctance to spend time with the father.
The child’s relationship with the maternal grandparents is developing and is also in her best interests as they provide support to both the child and the mother.

Section 60CC(3)(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 child’s early background of separation from her mother whilst the mother was in a relationship with the father and in prison is significant. the child has since clearly developed a close relationship with her mother who has rehabilitated, and this relationship needs to be consolidated before the introduction of any further instability by the child being forced to spend supervised time with the father. I am not satisfied that it is in the child’s best interests that she be compelled to spend time with the father having regard to the history of her relationship with both parents.

Section 60CC(3)(i): the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents

Whilst the father has pursued a relationship with the child, it is clear that he has had personal difficulties which include extensive criminal history, drug use and health problems referred to by Dr E. His violence and denigration of the mother has hampered his ability to demonstrate responsibility as a parent. He does not pursue his application.
The father’s attitude towards the child has been inppropriate as demonstrated at times at F.
The mother has had her own personal difficulties including having spent one month in prison for driving whilst disqualified and a history of drug use. On the evidence however it would appear that she has made significant progress in her rehabilitation which has assisted in her relationship with the child. She is prepared to continue the counselling proposed by the Independent Children’s Lawyer. The mother has demonstrated a responsible attitude to the child’s parenting since she was returned to her care. The mother has consistently demonstrated cooperative behaviour at F. Dr G in his letter of 17 December 2014 was very supportive of the mother emphasising that she had found independent accommodation and had full-time care of the child. I accept his evidence that both the Mother and the child have made good friendships in the community and that the Mother has undertaken computing courses and is pursuing a career in community work.

Sections 60CC(3)(j) and (k): any family violence involving the children or any member of the children’s family and family violence orders

Although the evidence of the mother is untested, it remains unchallenged and I accept her evidence about the violence of the father during the relationship. The mother’s evidence that the father prohibited her from contacting her family or friends is corroborated by the evidence of the maternal grandfather. The mother’s evidence that she was forced into sex work to pay for drugs is particularly concerning. However, I make no findings about this aspect of her evidence because of the seriousness of the allegations where there are no details which support this and the evidence remains untested. Dr G reports physical and mental abuse of the mother by the father which I accept.
I accept the maternal grandfather’s evidence where he describes being subjected to verbal abuse by the father when he visited his daughter, in addition to his evidence about receiving verbally abusive phone calls. The maternal grandfather’s hearsay evidence about the neighbours informing him about the father screaming abuse at the mother and dragging her by her hair is not corroborated by the mother. I am not in a position on the untested evidence to make any findings about this.
I am satisfied that the father has a propensity for violence, having regard to his criminal history and the evidence of the maternal grandfather about the threats made to the family and the verbal abuse directed towards the mother.
I take into account that intervention orders were made but there is insufficient evidence about the circumstances to make any findings.

Section 60CC(3)(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

It is in the best interests of the child that she be relieved from the burden of regular supervised visits with her father to which she has consistently been opposed. At times she has only complied reluctantly with the contact visits. I am satisfied that the parenting orders proposed by the mother and counsel for the Independent Children’s Lawyer are the most appropriate to bring an end to the litigation and to reduce the stress upon the mother which no doubt impacts upon the child. This is particularly so where the father has continued to raise the issue of court proceedings during contact visits with the child and even falsely purported to suggest that the court has required her to do certain things.

Parental responsibility

Parental responsibility is defined in section 61B of the Act and means “All the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”
Section 61DA of the Act provides that I must apply a presumption that it is in the best interest of the child that the parents have equal shared parental responsibility. However, the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in family violence. The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interest of the child for the parents to have equal shared parental responsibility.
Not only are there findings of family violence perpetrated by the father in this case, but I am also satisfied that the presumption of equal shared parental responsibility is rebutted in this case because the father has not challenged the evidence of the mother and there is clear evidence from the family consultant that there has not been any reasonable relationship between the parents upon which to base the usual considerations for joint parental responsibility. The family consultant noted that it was apparent that there has effectively been no parental communication for a considerable period and that based upon the current assessment he believed that “It is highly unlikely that this will improve in the foreseeable future.” He recorded that both parents would find it particularly difficult to develop and maintain a constructive parental relationship that would enable them to share parental responsibility for the child.
The family consultant’s opinion was that as the child is still of an age where she requires an active parent in her life that it is appropriate to consider vesting primary parental responsibility in one parent and given the historical and current circumstances surrounding the child’s primary living arrangements, parental responsibility could be vested in the mother.
It is clear on all the evidence that both parties are distrustful of each other and the extended families and that there is unlikely to be any amelioration of that attitude in the future. The concept of equal shared parental responsibility in the circumstances of this case has been demonstrated to be unworkable and is unfortunately likely to lead to further conflict between the parents which would not be in the best interests of the child. I am satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
As there will be no order for equal shared parental responsibility I am not required to consider whether it is in the child’s best interests, and reasonably practicable, that the child spend equal or substantial and significant time with the father. I am at liberty to determine directly which parenting orders are in the best interests of the child.

CONCLUSION

A meaningful relationship between the child and the father does not appear to be possible at this time. This is due not only to the fact that there is no current relationship between them and that the child has been resistant to spending time with the father since April 2014, but also that the evidence raises concerns about the behaviour of the father, his drug use, his physical health and his mental state. The evidence of Dr E which, although untested, raises concerns about any unsupervised time to be spent by the father with the child. More importantly the child’s opposition to spending time with her father has become more pronounced and it would not be productive of any meaningful relationship with him should she be compelled to spend time with him against her will.
I am satisfied having regard to all the evidence, but in particular the evidence of the family consultant and the evidence of Ms I, that it is in the best interests of the child that sole parental responsibility be vested in the mother. It is not appropriate to require the child to spend time with the father in the circumstances which have been outlined previously and where she is implacably opposed to spending time with him. Following the recommendations of the family consultant, I am satisfied that it is in the best interest of the child that she spend no time with the father but that the father be permitted to send her gifts in accordance with the proposals of the Independent Children’s Lawyer and the mother. It is also appropriate that the father be provided with photographs of the child in accordance with the proposals of the Independent Children’s Lawyer and the mother. Although the child was often opposed to having photographs taken with the father during the time that she spent with him, I consider that it is a different proposition for photographs of the child taken under different circumstances, to be forwarded to the father.
There is no explanation for the father’s failure to participate in the proceedings but it is important that orders are made for the child’s parenting which minimise the need for any further litigation and allow for the consolidation of her settled circumstances which is in her best interests according to all the evidence. This is particularly important in the history of the relationship between the mother and the child where that relationship has improved and it is in the child’s best interests that there be certainty by way of court orders.

I certify that the preceding one hundred and sixty-two (162) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 26 June 2015.

Associate:

Date: 26 June 2015

[2015] FamCA 489

26 June 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness

Jurisdiction

Remedies

Standing