Samaras & Allen
[2021] FamCA 626
•26 August 2021
FAMILY COURT OF AUSTRALIA
Samaras & Allen [2021] FamCA 626
File number(s): SYC 5524 of 2017 Judgment of: HENDERSON J Date of judgment: 26 August 2021 Catchwords: FAMILY LAW – PARENTING – Interim parenting – Application for a review of a Senior Registrar’s decision by the mother – Where the father seeks to increase time spent with the child – Where the mother opposes an increase in time – Where the father has an extensive historical criminal record – Where the father’s time with the child has never been supervised – Assessment of risk – Orders made for the child to spend time with the father gradually up to four nights a fortnight and for significant and substantial time in the school holidays. Legislation: Family Law Act (1975) (Cth) ss 60B, 60CC(2), 60CC(3), 65DAA Cases cited: Goode & Goode (2006) FLC 93-286 Number of paragraphs: 130 Date of hearing: 5 August 2021 Place: Sydney Counsel for the Applicant: Mr Cummings SC Solicitor for the Applicant: Lander & Rogers Counsel for the Respondent: Ms Christie SC Solicitor for the Respondent: Vizzone Ruggero Twigg Lawyers Counsel for the Independent Children's Lawyer: Mr Greenaway Solicitor for the Independent Children's Lawyer: John Spence & Associates ORDERS
SYC 5524 of 2017 BETWEEN: MS ALLEN
Applicant
AND: MR SAMARAS
Respondent
ORDER MADE BY:
HENDERSON J
DATE OF ORDER:
26 AUGUST 2021
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.The child X (“the child”) live with the mother.
2.The child spend time with the father during the school term as follows:
(a)From the date of these Orders until the commencement of Term 1 2022:
(i)Each alternate weekend from the cessation of school Friday until 5pm Sunday; and
(ii)Each Wednesday from the cessation of school until 7pm.
(b)From the commencement of Term 1 2022, commencing the first weekend after school resumes:
(i)Each alternate weekend from the cessation of school Friday until the commencement of school Monday; and
(ii)Each alternate Wednesday from the cessation of school to the commencement of school Thursday, being the Wednesday following the father’s alternate weekend as per Order 2(b)(i) herein.
3.The child spend time with the father during school holidays as follows:
(a)During the term school holidays in 2021 with the father’s time as per Order 2(a) herein to recommence the first weekend after school resumes:
(i)The first Friday after school ceases until 5pm Sunday; and
(ii)Each Wednesday from 9am to 6pm on Thursday.
(b)During the Christmas school holidays commencing in 2021:
(i)From 3pm Christmas Eve to 3pm Christmas day; and
(ii)Each alternate weekend from 9am Friday to 9am Tuesday commencing the second Friday of January 2022 unless otherwise agreed.
(c)During the term school holidays in 2022:
(i)From 5pm Friday to 5pm Tuesday in the first week of the school holidays; and
(ii)From 9am Friday to 5pm Sunday the weekend before school resumes.
(d)During the Christmas school holidays commencing in 2022:
(i)From 3pm Christmas Day to 5pm 29 December and each alternate year thereafter;
(ii)For a further period of four nights as agreed and, failing agreement, from the third Friday in January 2023 for a period of four nights on the first occasion with such time to extend to five nights each alternate year thereafter.
(e)Commencing 2023:
(i)In the holidays following Terms 1, 2 and 3 from the cessation of school at 5pm for five nights or as otherwise agreed;
(ii)From 3pm Christmas Eve to 3pm Christmas Day and each alternate year thereafter;
(iii)For two further periods of five nights in January 2024 as agreed and failing agreement in the first and third weeks of January and each alternate year thereafter.
4.Otherwise the orders made by Senior Registrar Hayward on 12 March 2021 being orders 2, 3, 4, 6.4.2 - 6.4.7, 6.5 - 6.11, 7, 8, 9, 10 and 11 continue.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Samaras & Allen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
This was a review of a senior registrar’s decision made on 12 March 2021 filed by the mother, Ms Allen (“the mother”), in relation to interim orders regarding the parties’ child X born in 2016. The orders provided for X to spend increasing time with her father, Mr Samaras (“the father”), from the current one night per fortnight and various times during the day each week to ultimately, commencing in Term 3 2021, the child spending from after school Friday to before school Monday with her father and each Wednesday from after school to 6pm.
The learned senior registrar also made orders in relation to special occasions such as birthdays, Christmas, Easter, holiday time and the like.
The regime of time proposed by the senior registrar was an increase in time from the short and frequent periods of time ordered by Senior Registrar Campbell on 27 November 2019. At that time the child was three years of age. She is now five and in 2022 will be six. It is common ground the child is progressing extremely well in her mother’s care and has flourished under the current orders.
The mother sought that the Court make orders that the child spend time with her father each Wednesday from after school to 5.30pm, each alternate Friday from after school to Saturday 5:30pm, daytime during the school holidays on each of Monday and Wednesday with the alternative Friday night time to continue, time on the child’s birthday, the mother’s birthday, the father’s birthday, Easter, Christmas and the like. This is virtually maintaining the current orders however with less actual time with her father and grandparents as she now attends school. Additionally, the mother sought this regular time be maintained during the school holidays however the father have whole days on Mondays and Wednesdays with the child.
At the outset the time proposed by the mother is limited, short and frequent and involves these parents meeting on multiple occasions to exchange their child during the school term and even more during school holidays. This is a matter that the Court is mindful should be minimised in X’s best interests. The father’s proposed orders minimise changeover to one evening per week on a Wednesday night during school term and twice in holidays.
X now attends school and is progressing well and her maturity will have also progressed since 2019 when the initial interim orders were made.
The amount of material read was voluminous for what the Court regards as an important but narrow issue.
For the mother:
(1)Amended Application in a Case of the mother filed 29 July 2021;
(2)Response of the mother filed 2 March 2021;
(3)Affidavit of the mother filed 2 March 2021;
(4)Affidavit of the mother filed 8 March 2021;
(5)Mother’s updating affidavit filed 29 July 2021 together with voluminous annexures being documents produced under subpoena in relation to the father’s extensive criminal history in New South Wales, police records from Queensland and the AFP and results of drug testing of the father together with emails, newspaper articles and correspondence;
(6)Report of Dr D dated 13 October 2020;
(7)Case outline together with a Minute of Order sought prepared by Mr Cummings of senior counsel who acted on her behalf.
For the father:
(1)Response to Amended Application in a Case of the father filed 30 July 2021;
(2)Supporting affidavit of the father filed 30 July 2021 together with voluminous and extensive annexures;
(3)The father, too, relied on the report of Dr D;
(4)Case outline of the father prepared by Ms Christie of senior counsel who acted on his behalf.
The Independent Children’s Lawyer (“ICL”) made submissions at the conclusion of this lengthy interim hearing that in December 2017 the parties entered into orders by consent which provided for equal shared parental responsibility and for the child to spend day-time time with her father and in 2019, by consent, an overnight period of time to commence in March 2020. That the child has progressed well and it is now 2021.
As Ms Christie SC for the father submitted, the father was required to bring the matter back to Court when his daughter commenced school for the majority of time he was spending with her was day-time and that was impossible when she was at school. It is disingenuous of the mother to complain that the father has brought the matter back to the Court on multiple occasions.
Mr Cummings SC acted for the mother, Ms Christie SC for the father and Mr Greenaway of counsel for the ICL.
CHRONOLOGY
The father was born in 1981.
The mother was born in 1988.
The father says the parties commenced a relationship in 2009.
In August 2009 the father was charged and convicted of possession of firearms. The father became subject to a Firearm Prohibition Order (“FPO”) which will remain in effect until 2024. The father was subject to bail conditions including drug testing between August 2009 and November 2011.
In 2010 the father was committed to sentence to the New South Wales District Court for firearms and drug offences. The father was convicted for driving with a suspended license and placed on a six-month bond. The father was fined for driving with a low range PCA. The father came to the attention of the Australian Federal Police (“AFP”) in relation to access to firearms and due to being a suspended driver. The AFP case note states that the father is recorded in over 80 Information Reports due to his links to a criminal group and organised crime.
In 2011 the father and his father were arrested and charged with criminal offences relating to methamphetamine oil which charges were dismissed at committal. The father says this was a turning point and he realised if he continued his association with criminals, he may end up in jail and lose everything. The father was dismissive of Dr D’s questions in relation to these serious offences, asserting he was involved but not responsible. That attitude to involvement in criminal activity is somewhat immature.
In November 2011 the father’s bail was varied to provide that he reside at an address known to the New South Wales Commission which was with the mother.
The mother alleges the parties’ commenced cohabitation in early January 2012.
On 12 February 2012 the father was charged with the supply of methamphetamine oil and this charge was in Queensland dismissed at committal. The maternal grandmother paid the father’s $100,000 bail in respect of this charge.
In 2016 X was born.
The father says he ceased using cocaine after X was born.
The mother asserts the parties separated in 2016 when X was ten days old.
The father asserts the parties separated in 2016 when X was three months old.
On 26 September 2016 the father was served with a Firearms Prohibition Order.
The father commenced a relationship with Ms B in 2017.
In 2017 the father arranged to meet the maternal grandmother, the mother and X in Queensland for a family holiday. The father stayed at the same hotel as the mother and X and would meet them in the hotel foyer to spend time together throughout the day.
In 2017 the mother located in the former matrimonial home a fake driver’s licence, which was exhibited in the proceedings, with the husband’s photograph but a different name and date of birth. This caused her concern as to the father’s continued criminal activities.
On 7 February 2017 the parties entered into a parenting plan.
On 24 August 2017 the father filed an Initiating Application in the Family Court.
On 13 December 2017 consent orders were made.
Between early 2018 and 2019 the father was stopped by the police due to either his manner of driving or places he had parked his car being known meeting places for drug exchanges such as G Street, Suburb J. No criminal charges were laid.
The mother formed a relationship with Mr C in 2018 whom she subsequently married.
In June 2018 the police records suggest that the father was observed entering and leaving a hotel over a short period of time and that he drove off at high speed. He was later stopped and searched by police. The police found a large amount of cash and several remote controls which they noted were “consistent with [a] concealed compartment”.
In a separate incident, Dr D records the father was found by police parked in an area known to police as a meeting point for conducting criminal activity.
In 2018 the father’s brother Mr F Samaras was killed in Country H.
From 31 October 2018 to January 2019 the father asserts the parties were extremely close and would communicate daily in relation to X.
In 2018 a divorce order was granted.
In December 2018, as Dr D notes, the police records indicate that the father was driving at high speed at 1.15am and was stopped and searched by the police. The police file indicated that the passengers in the car “had recent intelligence relating to organised crime” as did the father. It is asserted the father was found with a large amount of cash.
On 3 December 2018 a Child Responsive Memorandum was completed.
In 2019 X commenced attending preschool. The father alleges the mother did not provide information to facilitate the father’s attendance.
In early 2019 the parties’ relationship deteriorated and the father asserts he felt blocked from X’s life by the mother.
In early 2019 the father invited the mother, her partner and X to Queensland with him and his partner so that X could have a holiday with both her parents however the mother declined.
On 26 March 2019 the mother filed a Response to Initiating Application.
On 4 April 2019 consent orders were made providing for the father to spend time with X:
(1)In Week 1:
(a)On Monday from 11.30am to 5pm;
(b)On Wednesday from 9am to 5pm;
(c)On Friday from 3.30pm to 7.30pm.
(2)In Week 2:
(a)On Monday from 11.30am to 5pm;
(b)On Wednesday from 9am to 5pm;
(c)On Saturday from 9am-5pm.
(3)On special occasions such as Christmas, Easter and Father’s Day.
On 11 April 2019 the father could not complete his hair follicle test because his hair measured 1.3cm.
The father returned a negative result on a completed drug test following request on the following dates:
(1)24 April 2019;
(2)16 May 2019;
(3)6 June 2019;
(4)26 June 2019;
(5)28 August 2019;
(6)1 October 2019;
(7)18 October 2019;
(8)25 October 2019;
(9)1 November 2019;
(10)8 November 2019;
(11)15 November 2019;
(12)22 November 2019.
On 27 November 2019 consent orders were made for X to spend time with the father in a two-week cycle as follows:
(1)In Week 1:
(a)Monday from 12pm to 5.30pm;
(b)Wednesday from 9am to 5pm;
(c)Friday from 3.30pm to 3.30pm Saturday.
(2)In Week 2:
(a)Monday from 12pm to 5.30pm; and
(b)Wednesday from 9am to 5pm.
(3)In addition, X to spend time with the father on various special occasions including Christmas, Easter, Good Friday, Easter Sunday and Father’s Day.
On 7 and 8 September 2020 Dr D conducted interviews.
On 13 October 2020 Dr D’s report became available to the parties.
In 2021 X commenced Kindergarten at L School.
On 12 March 2021 orders were made by Senior Registrar Hayward providing for X to spend time with the father as follows:
(1)In Term 1 2021:
(a)In Week 1:
(i)Wednesday after school until 6pm;
(ii)Friday after school until Saturday 5pm.
(b)In Week 2:
(i)Wednesday after school to Thursday before school.
(2)In Term 2 2021:
(a)In Week 1:
(i)Wednesday after school until 6pm;
(ii)Friday after school until Sunday 5pm.
(b)In Week 2:
(i)Wednesday after school until Thursday before school.
(3)From Term 3 2021:
(a)In Week 1:
(i)Wednesday after school until 6pm;
(b)In Week 2:
(i)Friday after school until Monday before school or 5pm if a public holiday.
(4)School holiday time on Mondays and Wednesdays from 9am to 5pm and each alternate Friday from 12pm to Saturday 5.30pm.
In early February 2021 the father says X reported to him that the mother request requested she call her partner “dad”.
In 2021 the mother married her partner.
On 22, 23 and 25 March 2021 X did not attend school.
On 24 March 2021 the mother’s stay application was heard. The term time orders were stayed.
On 21 April 2021 the father asserts he requested time with X for Sunday Church and the mother declined on the basis that she had a play date.
On 24 April 2021 X did not attend school. Upon inquiry, the mother told the father X had been hospitalised.
On 22 April 2021 and 4 June 2021 the father returned a negative drug test result.
EVIDENCE
The mother is highly resistant to the father having any more than one overnight period with the child each fortnight despite the child progressing well in her care, being healthy and happy. Mr Cummings SC’s submission was “if it ain't broke don't fix it”. If I adopted that approach, however, no child would spend additional time with their other parent until they expressed a wish so to do and were of an age that such a wish had weight and it was not otherwise a risk to the child to increase time.
Further, Mr Cummings SC submitted that there was no remit or reason why I would increase the child's time with the father given she is progressing well. The social science is clear: a child's relationship with a parent becomes deeper, more meaningful and is optimised when they spend good quality, frequent and settled time with the other parent. This includes time with the other parent increasing as the child matures and overnight time is an important aspect of a developing relationship. Time must progress appropriately and have regard to the child's needs and capacity as the most important consideration in any increase in time. Children's lives are not static and neither are their parents.
Further, such a position fails to recognise my obligation under the Family Law Act (1975) (Cth) at section 60B, that children have a right to have both parents involved in their life and section 60CC(2), that a child has a right to a meaningful relationship with each of their parents. Section 65DAA requires when, as here, parental responsibility is shared I must consider equal or significant and substantial time for the child with the other parent. Provided, and this is the gravamen of the mother’s resistance to extending the father's time, a child is not at risk of harm or an unacceptable risk of harm in the other parent's care. That proviso is uppermost at all times in matters concerning children.
There has clearly been, on the material, a risk to the child in spending time with her father given his concerning, serious and lengthy criminal history commencing in 2002.
Going to that history which is in “Bundle 3” of the mother's tender bundle.
The father's criminal history commenced on 15 November 2002 when he was 21 years of age. The offence was affray, destroy or damage property.
In 2002 he knowingly drove a motor vehicle in a dangerous manner and menaced another. Driving dangerously, recklessly and furiously is a theme in the father's criminal history.
In 2005 the father lost his license at that time yet, not complying with the law, he drove whilst disqualified and in 2006 was convicted of driving whilst having his license suspended.
In 2009 he was charged with possessing a prohibited drug, possessing a firearm with an altered or defaced barrel, supplying a prohibited drug, cannabis, possessing ammunition, possessing an unregistered and unlicensed pistol, not keeping the pistol safely, possessing an anabolic steroid and dealing with property suspected to be the proceeds of crime.
In relation to possessing an unauthorised pistol, the father was imprisoned for 21 months suspended on entering into a bond in April 2009 and fined in relation to the remainder of the charges he had been charged with. The charge of dealing with property suspected to be the proceeds of crime was dismissed.
In relation to the charge of possessing a firearm or barrel with an altered or defaced ID, the father was sentenced to eight months imprisonment suspended upon entering a bond.
In 2010 the father was charged with driving whilst his license was suspended.
In 2010 he was charged with driving with low range PCA and was given a Section 10 bond.
The father has a FPO against him. He has been pulled over by police on no less than 120 occasions up to 2019 due to his manner of driving bringing him to the attention of the police, or in parking in places where known drug exchanges take place, for example G Street in Suburb J, leaving licensed premises shortly after arriving and being found in the possession of large amounts of cash. He is clearly known to the NSW Police and AFP and has been since 2010.
Despite having being pulled over by police on multiple occasions, the last occasion being 24 February 2019, he has not been charged with any criminal offence and his last charge of any criminal offence at all was in 2010 of driving with a low range PCA and driving whilst unlicensed.
The wife relied upon documents from the AFP by way of subpoena which were supplied and heavily redacted, for example Case Notes dating back to 2010 that he associates with known drug suppliers and criminal group. That he has a FPO against him and his prior charges include dealing with property suspected to be proceeds of crime and driving offences. I note the charge relating to dealing with proceeds of crime was dismissed. The father is recorded in over 80 information reports with links to a criminal group and organised crime.
On 18 August 2015 the AFP notes an associate of his brother Mr F Samaras allegedly imports pseudoephedrine oil from Country H and directly manufactures it into a saleable product.
The husband's brother was shot dead in Country H in 2018 and the mother believes this was due to his involvement in the illegal drug trade and this has heightened the mother's concerns of a risk to the child in the father's care. She asserts this is supported by the AFP's suspicions, which is the highest their reports amount to.
On 30 April 2017 the AFP notes that the father is “extensively monitored by New South Wales police, seems to be actively involved in possible importation”. There is nothing but suspicion to support that report. Even in the NSW COPS entries there are only innuendos and suspicions of known associates, not named places frequented where illegal activity associated with the drug trade occurs.
The facts are the father has not been charged with any offence despite being pulled over by the police at random times monthly and multiple times yearly.
The father's drug tests have all returned negative. There is no doubt X's father was on a very slippery slope and on a very poor trajectory in 2012 at the time the mother met him and then married him in 2013. Despite almost constant police surveillance since then, he has not been charged with any criminal offence and he now drives motor vehicles for a living.
Turning to the mother's affidavit.
The parties were married in 2013. They must have had a relationship prior to that date and I note in one of the AFP documents the mother's name is mentioned. I do not accept that the mother was unaware of the father’s serious criminal history or unaware post the relationship that he was subject to a FPO permitting the police to search his home, vehicles and person as they deemed appropriate given part of his bail conditions required that he resided her home in late 2012/2013. His behaviour since their marriage has improved markedly given he has had no criminal convictions. I accept, however, a risk of harm to a child from a parent is not reliant on a criminal conviction rather their behaviour, conduct, attitudes and those with whom they may bring the child onto contact with.
With this knowledge, and in light of these circumstances, the parents entered into consent orders in 2017 when X was 18 months of age for equal shared responsibility and for the father to have unsupervised time weekly with the knowledge of his serious criminal history.
On these facts I question the veracity of the mother's concerns now some four years later when:
(1)There is no evidence that the father has been charged with any criminal offence or even questioned in relation to criminal activity by the State or Federal police despite being monitored by the State police;
(2)The child has not been exposed to being stopped by police while she is in the car being driven by her father;
(3)The child is flourishing in her mother's care and she has a strong and bonded relationship with her father and paternal grandparents;
(4)X has been spending time with her father from a very young age and has not come to any harm whatsoever. The mother can make no serious complaint about the care of the child by the father;
(5)The father has been in a stable relationship for three years;
(6)The father has stable employment driving motor vehicles and his license is important to him to maintain his income.
These were not the facts when the mother and father entered into consent orders in 2017 for equal shared parental responsibility and for the child to spend unsupervised day time weekly in her father's care.
If the mother is as concerned as she asserts, and as Mr Cummings SC submitted to me she is, it would not be a surprise if the mother had insisted that time with the father and the child be supervised. For the police can pull the father and child over in the car on any day or night of the week while she is in his care. He can meet with alleged criminal group members at those times and clearly he has not done so.
Why then is the mother so resistant to any increase in overnight time? Mr Cummings SC said, in answer, that there is a risk to the child in her father's care and the more time she spends with him in a continuum the greater her exposure to those risks becomes. Minimising lengthy periods of time with her father minimises the potential risk to the child.
Dr D was also concerned about the father's past criminal history, that he is still within the radar of the police, that he had not been forthcoming about his prior criminal history to her and that these are risk factors for X.
Both the father and the Independent Children's Lawyer relied upon paragraph 191 of Dr D's report as a sound basis to increase the father’s overnight time with the child wherein she says:
I think that by the time that X has completed Term 1 of Kindergarten [April 2021] then she will be able to cope with spending two consecutive nights in her father’s care; for example, from Friday after school until Sunday evening. I also think that X should spend time with her father in the alternate week, for example one weeknight from after school until before school the following morning.
This was the position adopted by the senior registrar and she ordered that by Term 3 X would spend three nights a fortnight in her father's care, every Wednesday after school and time in the school holidays and for special occasions.
Mr Cummings SC correctly says Dr D also said paragraph 190:
I have considered each of the parties’ respective parenting proposals and their impact on X. As mentioned previously, if the court is satisfied that the father does not pose an unacceptable risk to X then I think that she could manage a gradual schedule of increased time with him.
Thus it is not X's capacity to be away from her mother that is in issue, it is the risk to her in her father's care that is at issue. This is an interim hearing and I am unable to make findings on contested matters. X is a young child and I must act cautiously.
There is no doubt that the father's prior criminal history would, if continuing or even possibly continuing, pose an unacceptable risk of harm to this child. However these are not the facts. The mother relies upon heavily redacted AFP documents, which have no supporting details at all, including any details of charges or convictions other than those that the New South Wales police launched against the father in 2010 to 2012 for which he was found guilty. The reports are, at best, innuendo of known criminal associates and the like.
There is no doubt Dr D was correct to criticise the father for his immature attitude to his serious prior history and involvement with criminals, that this has led him to be pulled over by police on random occasions and that he continues to blame the mother in some fashion for the situation he finds himself in rather than taking full responsibility. As Dr D says at paragraph 182:
At the interview with me, the father oscillated between expressing respect for [the mother] and then critiquing almost every aspect of her parenting and personhood. He spoke in highly critical ways about [the mother], often implicitly demeaning her. For example, he implied that she was “spoiled”, that she had an overly enmeshed relationship with her own mother, that she outsourced X’s care to others, that she did not properly care for X and that she had failed to give him proper information about X’s routine and care. These sentiments and attitudes bode poorly in terms of the father’s insight into X’s needs to observe respectful relationships between her parents, to have her parents understand her loyalty towards each of them and the importance of removing her from any conflict between her parents.
At paragraph 181 Dr D opined:
…[The father] may lack insight into the central importance to X of preserving her mother’s positive standing, in generating respect for her role in X’s life and in supporting the mother in front of X.
At paragraph 169:
With respect to [the father], I have mixed views about his parenting capacity. On the one hand, I think that he is doting, loving and kind towards X. I think he organises fun and exciting activities for X which she enjoys and which are child focused and positive. The father spoke about establishing an appropriate routine with X when she was in his care. However, on interview with me the father had less awareness of X’s developmental needs or intimate knowledge of her daily life, such as her friends at preschool or upcoming events in her life. The father asserts that this is because the mother has sought to exclude him from X’s life and has not provided him with sufficient information.
This is a vexed issue between the parents and will be determined at a final hearing once the evidence is tested.
Of concern was Dr D’s opinion at paragraph 170 that the father has allowed X to become aware of his negative views of the mother.
In relation to the father's concerning past criminal history Dr D says the following commencing at paragraph 154:
The father presented as being aggrieved by being unfairly judged by his historical criminal activities…he was highly critical of the mother for what he regarded as her preoccupation with his criminal history and potential drug taking.
155. My review of the matter indicates that the father’s criminal history is relevant and of significant concern with respect to the issue of the safety of a very young child. The police records…indicate that the father is being closely monitored…is subject to a Firearm Prohibition order...[which] allows the police to enter the father’s premises without a warrant to conduct any searches they consider relevant. The police documents indicate that the father is frequently stopped and searched by police when driving…
156. …[T]he police records indicate that [the father] is frequently stopped and that on occasions his manner of driving has caused the police to pull his car over…
157. I was also concerned that the father was dismissive about questions regarding the risk posed to X in terms of things such as the Firearms Prohibition order and police involvement. The father displayed no insight into the impact of such potential episodes on a young child…[t]he father does not seem to accept that the serious nature of his criminal history, together with the recent murder of his brother have reasonably escalated the mother’s anxieties and that her fears are proportionate and protective of X.
The father said the reason he was pulled over is because he drives motor vehicles and that is part of his job. I agree with Mr Cummings SC that this was disingenuous of him. He is subject to a FPO and that is one of the reasons, as is his manner of driving and places he is found in.
The father told Dr D at paragraph 83 that when his father was arrested for drug trafficking this was a turning point for him. That he is subject to the FPO for another four years. It is somewhat evident from his clear drug tests that he no longer uses illegal drugs.
The father’s brother was shot in Country H in 2018 and he denied that this had anything to do with drug importation.
Dr D raised at paragraph 158 her concern of an inconsistency between the father's sworn affidavits and assertions of from 2012 having “effectively changed his ways”, having had no criminal association or involvement from that time and that he and his partner have a “quiet life”.
Dr D notes he was pulled over by police in December 2018 driving at a high speed and was stopped and searched by police but not charged. The police noted in June 2018 he was observed entering and leaving a hotel, drove off “at high speed” and was later stopped and searched. He was in possession of a large amount of cash and remote controls. In 2018 he was found in an area known to police as a meeting point for conducting criminal activity, G Street, Suburb J.
That the AFP have him under “ongoing surveillance” in relation to possible involvement with criminal groups and organised crime. However the father is correct, he has not been charged with any criminal offences since 2012, and in that sense has most certainly changed his ways, and there is no indication he has been using illicit substances. It is clear he is on the radar of NSW Police as he has been since 2009 when he was charged with firearms offences.
It will be a matter for trial whether the father being pulled over as he has been, having large amounts of cash on him and the AFP and State police innuendo of his involvement with known criminals is correct or not.
This is a parenting matter and I must follow the pathway set out in Goode & Goode (2006) FLC 93-286 and have regard to the factors under section 60CC(2) and (3) of the Family Law Act (1975) (Cth) (“the Act”) to determine the orders that are in the child's best interests.
Dr D's report attests that the child benefits from a meaningful relationship with each of her parents. That her mother is an exemplary parent and parents the child to a high standard.
That the father has a somewhat immature attitude to the mother and is critical of her at times and that this has been made known to his daughter. That as a parent he lacks insight into the possible consequences for the mother of their daughter's safety in his care having regard to his criminal history and the impact of his brother’s shooting in 2018 and other matters. The father found it difficult to accept that these events have impacted upon the mother and form the basis of the concerns she now raises.
However he is also a doting and devoted father and gave evidence that he and X enjoy activities together, return home for “date night”, they eat dinner together with the father’s partner. The father then bathes X, reads a book to her and puts her to bed. The father says he observed that the overnight time has been going “exceptionally well”, that X has slept through the night without disruption. The father says he ensures he spends time with X one on one to ensure she knows it is their special time together. On Wednesday’s, the father says he previously took X to visit the paternal grandparents with whom she has a loving and close relationship. Now she is at school this can only occur on a Saturday.
Dr D was confident that X can cope with three nights away from her mother but that confidence was clearly overshadowed by her concern as to the potential risks of harm to the child in her father's care.
Assessing the risk is the most important factor in this matter.
Mr Cummings SC said that if there is a risk to the child in father's care of one night that risk must be amplified if it is two or three nights. I do not share that concern.
The evidence is that whilst the child has been in her father's care he has not come to the attention of police. The times he has been found driving at an alleged high-speed or in places that known drug dealers frequent the child was not with him and importantly, given no charges were laid, the police cannot have been overly concerned about any of his activities despite his concerning past.
At the time of marriage the mother was well aware of the father's criminal history and continued so to be aware when she entered into consent orders in 2017 for equal shared parental responsibility and unsupervised day time and, by consent, agreed to overnight time in November 2019. When the consent orders were made in 2019 for equal shared parental responsibility and one occasion of overnight time, the mother knew her former brother-in-law had been shot in Country H and if this issue posed an additional risk to their daughter there is no doubt the mother would not have agreed.
The evidence is that there are no fresh incidents of the father's behaviour that would raise the risk of harm to the child to a higher level or even the same level that was not already evident in 2017 and 2019 and therefore to a level of an unacceptable risk. In fact the evidence is that the father has not been charged with any criminal or other offence, is monitored by the police, has stable employment and is in a stable relationship. His lifestyle and behaviour has taken a positive trajectory since 2017 albeit from a low base.
Having so determined, I accept there is still some risk to X in her father's care for extended periods given his immature attitude to the mother, his difficulty in accepting his responsibility for the consequences of his past behaviour and that X is still young and that an increase in time must be slow to ensure X is able to spend time away from her mother and her mother can support an increase in time. This also provides the father with time to continue his positive lifestyle choices.
I have formed the view that the orders that are in X's best interests are that she forthwith commence to spend alternate weekends with her father from Friday after school until 5pm Sunday and each Wednesday night from the cessation of school to 7pm.
In relation to term school holidays for 2021, the child shall spend time with her father the first Friday after school breaks up until 5pm Sunday and each Wednesday from 9am to 6pm Thursday.
The father's time in the school term is to commence the first weekend after school resumes.
For Christmas 2021 the child is to spend with her father from 3pm Christmas Eve to 3pm Christmas Day.
The father's time in the 2021/2022 school holiday period is to continue each alternate weekend from 9am Friday to 9am Tuesday commencing the second Friday of January 2022 unless otherwise agreed.
Commencing the first weekend after the child returns to school in 2022 the father's time to commence from after school each alternate Friday to the commencement of school Monday and each alternate Wednesday from after school to the commencement of school Thursday, being the Wednesday after the father's alternate weekend.
For the term school holidays in 2022 the father's time with the child shall commence the first week from the breakup of school being 5pm Friday to 5pm Tuesday and the weekend before school resumes from 9am Friday to 5pm Sunday.
For the Christmas school holidays in 2022/2023 the child to spend time with the father from 3pm Christmas Day to 5pm on 29 December and each alternate year thereafter.
Then, for a further period of four nights as agreed and, failing agreement, from the third Friday in January 2023 for a period of four nights with time in January to extend to five nights each alternate year thereafter.
Commencing 2023 the child is to spend five nights in her father's care in each school term holiday from the cessation of school being Friday 5pm for five nights, or as agreed.
From 3pm Christmas Eve to 3pm Christmas Day in 2023/2024 and each alternate year thereafter.
For two further periods of five nights in January 2024 as agreed and, failing agreement, in the first and third weeks of January and each alternate year thereafter.
I certify that the preceding one hundred and thirty (130) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson. Associate:
Dated: 26 August 2021
Key Legal Topics
Areas of Law
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Family Law
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Evidence
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Statutory Interpretation
Legal Concepts
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Appeal
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