SHIVELY & GANN

[2019] FCCA 2378

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHIVELY & GANN [2019] FCCA 2378

Catchwords:
FAMILY LAW – Parenting dispute – mother alleging serious family violence by the father – father denying or minimising his violence – father seeking extended time with 6 year old child as an entitlement due to him as a father – whether father’s ongoing mental health difficulties properly treated – interim orders made as sought by the mother.  

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Goode & Goode [2006] FamCA 1346

Applicant: MR SHIVELY

Respondent: MS GANN

File Number: DGC 2579 of 2017

Judgment of: Judge Burchardt

Hearing date: 21 August 2019

Date of Last Submission: 21 August 2019

Delivered at: Town G

Delivered on: 20 September 2019

REPRESENTATION

The Applicant appeared in person

The Respondent appeared in person

Counsel for the Independent Children's Lawyer:

Solicitors for the Independent Children’s Lawyer:

Peter Lynch

Peter Lynch

ORDERS

1. The mother have sole parental responsibility for the child [X] born … 2013:

2. That the father spend time with the child [X] born … 2013:

   (a)Every second weekend from 9am Saturday to 5pm Sunday commencing [day/month] 24 August 2019;

   (b)During school holidays, the time spent on order 1(a) shall be extended from 5pm Friday to 5pm Sunday; and

   Christmas

   (c)

   From 12.00pm Christmas Eve to 12.00pm Christmas Day

   
   

   in even-numbered years;

   (d)From 12.00pm Christmas Day to 12.00pm Boxing Day in odd-numbered years;

   Easter

   (e)

   From 12.00pm Easter Saturday to 12.00pm Easter Sunday

   
   

   in even-numbered years;

   (f)From 12.00pm Easter Sunday to 12.00pm Easter Monday in odd-numbered years;

   Orthodox Easter

   (g)From 12.00pm Easter Saturday to 12.00pm Easter Sunday in even-numbered years;

   (h)From 12.00pm Easter Sunday to 12.00pm Easter Monday in odd-numbered years;

   (i)At such other times as agreed between the mother and father in writing.

3. That the father be and is hereby restrained from using illicit drugs while the child is in his care.

4. That the father undergo a hair follicle test (for drug detection for the preceding 6 months) with Australian Workplace Drug Testing Services at his own expense and produce a copy of the result of this test to the other parties as soon as practicable at a time to be determined by the Court.

5. That the father continue to attend upon his general practitioner Dr B psychologist and ensure:

   (a)That the two mental health professionals liaise with each other;

   (b)That he accepts the mental health practitioners’ reasonable directions; and

   (c)That he provide a report to the Court 30 days prior to the adjourned hearing date.

6. That changeover be in the absence of the father and the mother (if practicable) and at the paternal grandmother’s residence unless otherwise agreed in writing.

IT IS NOTED that publication of this judgment under the pseudonym Shively & Gann is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2579 of 2017

MR SHIVELY

Applicant

And

MS GANN

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a parenting case about the best interest of a young child, [X], born … 2013.  The applicant father seeks that the Court make final orders.  Relevantly, he seeks that [X] spend unsupervised time with him at his home from Friday afternoons until Sunday each alternate weekend.  He seeks half the school holidays, and time on birthdays and other special days.  The respondent mother seeks that the Court make interim orders only.  She seeks that the father spend unsupervised time on a fortnightly basis from 10 am on Saturday to 5 pm on Sunday with changeover at the home of either of the two grandmothers.  She seeks that the husband undertake a hair follicle test.  She seeks that the child spend two nights with the father during school holidays and that the matter be reviewed in six months.  She further seeks to travel to Country C next year for a period of some six weeks.  The father seeks that any such time be reduced and that he also have liberty to travel with the child to Country C.

2. The Independent Children's Lawyer supports the hair follicle test.  The Independent Children’s Lawyer’s position was somewhat nuanced as to whether the Court should make final orders now.  In any event the Independent Children's Lawyer supports alternate weekend time from 9 am Saturday to 5 pm Sunday and during school holidays that time be standard from 5 pm Friday to 5 pm Sunday.  The matter was otherwise left for the Court. 

3. For the reasons that follow I am going to make interim orders and review the matter in six months. 

The submissions made and evidence given at Court

1. It is not my practice generally to commence a judgment with a record of what the parties said and did at Court.  In this particular case, however, the way the matter unfolded makes it appropriate to commence with this exercise and to consider the materials filed, including the independent materials, in the light of what the parties said. 

2. It should be noted that what follows is taken from my notes.  It is, of course, not a transcript but records matters that I found significant. 

3. The matter commenced with a brief indication by the Independent Children's Lawyer of what he understood the parties’ positions to be. 

The opening and evidence of the father

1. The father, who like the mother was representing himself, said in opening that he wants to have time with his daughter on an unsupervised basis from Friday afternoons until Sunday afternoons each alternate weekend.  He seeks time in school holidays, birthdays and name days and Easter and Christmas.  He seeks one week of the school term and half the long summer holidays. 

2. The father was called and adopted his affidavits as true and correct.

3. Under cross-examination by the Independent Children's Lawyer the father confirmed that he had read the family report.  He had subsequently obtained a report from Ms D. He had undertaken numerous drug screens on a supervised basis.  He described in detail what that process involves and I should make it clear that I accept that his drug screens have been properly supervised. 

4. The father said he would only be prepared to undertake further drug screens if they were not supervised.  This, like a number of other matters, related to his dissatisfaction with the cost and expense of supervised screens.  He was not aware of what a hair follicle test was.  It was put to him that they can cost $300 to $600.  Urine screens cost him $80 each time and he was happy to undertake one of the day.  His last illicit drug use was in 2016.  Before that he consumed amphetamines.  He also had historical cannabis use.  He had undertaken a two-week program in 2016 at a rehabilitation clinic.

5. The father had seen Ms D.  He was reluctant to do so because of the $2000 cost.  He had seen her report.  He lives in Suburb E.  He had to go to Suburb F for the assessment. 

6. He had observed the names of the three treating psychologists recommended by Ms D and had got through to one of them.  However, he had now engaged with a Dr B who is available closer to where he lives.  He has five more sessions to undertake and has two booked in September.  He has learned strategies to deal with anxiety and depression.  His depression is mostly because he does not see his child.  He complained that he does not know where the child lives.

7. He is on medication prescribed by his General Practitioner.  He has just changed and is now on Zoloft and has been for a couple of weeks.  He had been on antidepressants for about six months but had not been on medication before 2019.  He had tried another drug about 18 months ago for two months but this had side effects.  The psychologist writes notes for his GP.  He has an excellent relationship with his GP whom he has known since he was a child.  The father said the only reason he suffered from depression is because he cannot see his daughter. 

8. When questioned as to whether he should undertake treatment with a psychiatrist the father said he was halfway through his time with the psychologist.  When he was questioned if he had undertaken any training to prevent relapse into drug use the father said he had just made contact.  He had not followed Ms D’s recommendation because he did not have the time.  He did not see it was necessary to undertake rehabilitation.  He had been to rehabilitation because of the mother. 

9. I should interpolate and say that the father’s evidence in my view about these matters was characterised by querulous complaints as to the cost and personal inconvenience of any remedial steps. 

10. The father conceded he had a criminal record and the mother did not.  He was cross-examined about a conviction on … 2017 at the Town G Magistrates Court.  The mother alleged he had strangled her and requested an Intervention Order.  He was legally represented and pleaded guilty and fined $2000.  The mother had alleged he had phoned her and thus contravened an Intervention Order.

11. The father was charged with an assault on … 2014 which led to a Community Corrections Order.  He admitted this.  He assaulted a worker because the mother called him and was hysterical.  He was working in Town H and got in his car and went and assaulted the worker.  He was ordered to undertake 100 hours of community service.  He had pleaded guilty.  He did not complete the 100 hours and received more fines. 

12. He had undertaken a Men’s Behaviour Change course which lasted for eight to nine weeks.  When asked what he had learned he said he had learned strategies to deal with anger.  It was not centred on family violence.  He had learned to be a better person.  He had learned that violence was not worth it. 

13. When cross-examined about a fine of $1000 in October 2003 for recklessly causing injury the father said he could not remember this.  He confirmed that he had not been charged since July 2017.  He conceded there were a number of Intervention Orders going back to 2012 or 2013.  He disagreed with the mother’s allegations.  He said, “She just makes things up to stop me seeing my daughter”.  When it was put to him that the mother was, in fact, offering him unsupervised time he said it was very minor amounts of time.  They had a few disagreements but it did not escalate to violence.  The father agreed that on 29 July 2019 he had received a text message from the mother offering time every second weekend, Saturday to Sunday, and extended time on holidays in return for her being permitted to go to Country C for six to seven weeks, as long as he was committed to drug tests.  He did not accept that proposal.

14. The father confirmed that he was born in Australia.  He has Country C heritage.  He intends to take his daughter to see his extended family.  He does not object to the mother taking the child to Country C but not for six to seven weeks.  Three to four weeks would be sufficient.  He understood that Country C was a Hague Convention country but he did not want the child overseas with a stepfather that he does not know.  He has no objection to the mother going to Country C with the child for three to four weeks. 

15. The father confirmed that [X] stays with his parents every second weekend.  His mother looks after her.  His two sisters live there, too, and his daughter sleeps with one of the aunts.  One sister is moving out next week so there will be a room for [X].  He sees the child during the day.  Sometimes he sleeps on the couch at his parents and sometimes he goes home around the corner.  He wants his daughter to come to his house from Friday to Sunday.  He has a two-bedroom unit with a second bathroom.  His daughter would have her own room and bed.  [X] asked why she can’t have sleepovers. 

16. The grandmother picks up the child at 2 pm and drives her home.  Places where changeover could be undertaken are booked six months in advance.  He wants to undertake changeovers himself or collect the child from school. 

17. When asked if his daughter had been exposed to arguments between the parents the father said “possibly yes”.  When he asked if he accepted that the mother was fearful of him he said he accepted that that is what she claims.  He conceded that third parties conducting changeover would be better.  When it was put to him that the mother’s proposal was better for his daughter and he should see how things went for the next six months the father said he believed that the mother would just seek further inquiries and would continue to obstruct.

18. Under cross-examination by the mother it was put to the father he had lied about his use of drugs.  He denied this and said he had always admitted drugs.  He denied he had any weapons in the house.  He did not want to undertake any further courses unless he actually relapsed.  He has a certificate.  He has done the anger management course twice.  He denied the mother’s allegations of insults and threats in November 2016.  He said they were irrelevant.  He said the majority of them were fabricated. 

19. By leave the Independent Children's Lawyer was permitted to further cross-examine.  It was put to the father that the mother’s allegations were serious and if the Court did not accept his denials would he undertake another course.  The father said he had done so many courses.  He said “I am entitled to every second weekend.  She is my daughter”. 

The evidence of Ms L Shively

1. The paternal grandmother adopted her affidavit as true and correct.  Under cross-examination by the Independent Children's Lawyer she confirmed that she had a good relationship with the mother.  She does changeover.  She picks up at Chelsea Heights which is a half hour drive and takes her back.  She is willing to do it.  Her daughter and niece can do it.  She supports unsupervised time.  She was aware of the assault charges and the breach of the Intervention Order.  The father used to have a temper.  He has been better in the last couple of years.  She was not aware of the mother’s allegations although she knew they had had words.  It would be a serious matter if [X] was present.  

2. At the start she was not aware the father had a drug problem but became aware later.  There had been no drug problems in the last couple of years.  She was not aware her son was taking prescribed drugs but was aware he was seeing a psychologist.  Her son is 38 and does not live at home.  Years ago she went to a clinic with the father when he was living in Suburb I.  He had thought the course was expensive so she and her husband helped.  The clinic was in Suburb I.  They went to a few sessions.  Her son went to support groups instead about four years ago.  There was no recent evidence of drugs and she was not sure about his prescribed drugs. 

The opening and evidence of the mother

1. The mother confirmed that she was offering one night of unsupervised time each fortnight from 10 am Saturday till 5 pm Sunday.  Drop-off could be at the home of either grandmother.  She sought that drug testing continue but was prepared to accept a hair follicle test.  She thought that one week in the school holidays was excessive.  She was offering two nights and a review in six months.  She was amenable to the father spending time with the child at Christmas, Country C Christmas and on his birthday.  If she went to Country C she would want to go for at least six weeks.  She described a very extensive set of family members in that country.  Her mother goes to Country C every year.  So indeed does the paternal grandmother.  She is prepared to allow [X] to see the paternal family also.  They would go next year.  Her own father owns a property in Country C.  If I understood her opening correctly the mother would not oppose the father taking [X] to Country C if things progressed well.

2. The mother was called and adopted her affidavits as true and correct. 

3. Under cross-examination by the Independent Children's Lawyer the mother confirmed her preference for a six month’s hair follicle analysis at a cost of $600.  She conceded that the father had undertaken drug screens for the last two years and all were clean.  There was no evidence the father was using drugs but she was concerned he would relapse.  She wanted the father to undertake the rehabilitation courses recommended by Ms D.  It would also be beneficial for the father to see a psychiatrist which would be better than a GP and psychologist as at present.  Changeover is presently satisfactory but they can meet at her own mother’s house.  She is still afraid of the father and does not want to see him. 

4. The mother confirmed the text message at paragraph 34 of the father’s most recent affidavit.  The father responded to her offer and said she was infuriating him and would not agree.  In Country C the child would meet numerous family members and visit where the mother was born.  Her own parents own a house there.  It was too risky for the father to take the child.  This could be reviewed next year.  There are no Intervention Orders at the moment.  Although there has been no violence since 2017 there are moments when the father is intimidating but there has been no need to take out an Intervention Order.  The mother confirmed that she knew how to do this were it required.  There are still issues with the father including his behaviour outside Court on the day.  The father is frustrated by delays but always has been.  He explodes.  She is trying to give the father an opportunity. 

5. Under cross-examination by the father the mother said she does not know how many absences [X] had had in semester 1.  She had been sick and they had been on holidays to Country J.  She had been late but this arose because they had a newborn baby in the household.  [X] was often late but the teachers were okay with this.  It was okay that her partner dropped [X] off at school.  They are a family unit. 

The evidence of Ms K the family report writer

1. Ms K adopted her report as exhibit G1. 

2. Under cross-examination by the Independent Children's Lawyer Ms K noted that there had been a previous order for a psychiatric report but the father had not done it.  She had read Ms D’s report.  She was familiar with two of the three psychologists recommended by Ms D.  She was aware that the father had not undertaken all of Ms D’s recommendations and was aware he had provided clean drug screens.  After reading Ms D’s report Ms K had some questions and it emerged there was some confusion as to dates.  Ms K said drug screens had been clear over 12 months but it was not clear that further counselling would assist.  There should be a relationship between the father’s GP and psychologist.  There is a high correlation between drug use and violence.  Six months of time would give time for the hair follicle test.  Ms K was of the opinion, nonetheless, it was better to finalise the matter now. 

Final submissions of the Independent Children's Lawyer

1. The Independent Children's Lawyer submitted that the Court should take a cautious approach.  A hair follicle test should be obtained even though the father had done a lot of drug tests.  The father concedes depression.  There ought be proper liaison between his treating GP and psychologist.  There was an alternative to finalise the matter.  There was a question as to whether the father should be required to attend upon a psychiatrist and the Medical Centre P.  The Independent Children's Lawyer did not press these latter two matters but left them for the Court’s determination.  The Independent Children's Lawyer sought orders that the father spend time each second weekend with the child between 9 am Saturday till 5 pm Sunday and during school term holidays from 5 pm Friday till 5 pm Sunday.  Other times should be determined by the Court.  The father should be restrained by injunction from using illicit drugs while the child was in his care.  He should undertake a six month hair follicle test through Australian Drug Testing as soon as possible.  The father should continue to attend upon his GP and psychologist and they should be required to liaise.  The father should be required to accept any directions from his GP or psychologist and provide a report from them to the Court 30 days before the adjourned hearing.  Finally, changeover should be at the maternal grandmother’s residence. 

Final submissions of the mother

1. The mother supported the matter returning to Court in six months.  She sought sole parental responsibility (a matter that had not been otherwise touched on up to this point).  She said it was very difficult to agree anything with the father and it would be easier if she made decisions about [X]’s education. 

The final submissions of the father

1. The father opposed sole parental responsibility.  He did not know about [X]’s schooling.  He wanted unsupervised time.  He appeared to oppose an adjournment for six months.  His submissions were not altogether easy to follow.  He complained about the cost of mental health treatment. 

The affidavits of the parties

1. Although I have read in detail the parties’ affidavit material I do not propose to traverse it in any great detail.  There are, however, one or two matters recorded in the affidavits that are significant in the light of what the parties said at Court. 

2. In his first affidavit filed 17 August 2017 the father relevantly said at paragraph 9:

   I also had problems concerning substance abuse and addiction but, I managed to remain sober throughout the relationship despite suffering from depression and anxiety.

3. He had earlier deposed that the parties met in 2008, began a relationship in 2009 and commenced cohabitation in 2010.  

4. The father’s affidavit material was replete with criticisms of the mother’s alleged violence, erratic conduct and overseas travel (the latter of which is not denied).  He deposed to his depression and anxiety and although he mentioned an attempt by the mother to self-harm this has not been pursued in the proceeding. 

5. The mother’s first affidavit filed 27 October 2017 suggests that the parties met in Country C in 2007, reconnected in late September 2008 and that cohabitation commenced in January 2010.  At paragraph 19 she deposed:

   Living together was a terrible idea.  We fought constantly.  There were regular bursts of anger from both sides.  We were both smoking ice quite frequently. 

6. The mother deposed to serious assaults by the father upon her. 

7. In his affidavit filed 19 March 2018 the father denies ever having used ice (paragraph 9). 

8. In her responding affidavit filed 22 March 2013 the mother denies having taken any drugs since 2008, but I note that since her earlier affidavit said the parties started living together in 2010 and were both using ice she is plainly inaccurate in that assertion. 

9. In his affidavit filed 5 February 2019 the father deposes to having been to see Ms D.  At paragraph 17 he sets out Ms D’s recommendations and his responses.  At sub-paragraph (b) he notes:

   That I attend a drug and alcohol treatment service for treatment, if required, and to learn relapse prevention strategies.  I have contacted the Addiction treatment center L and am waiting for an intake interview. 

10. It should be noted that he has not actually attended the Addiction treatment center L and does not wish to do so. 

The subpoenaed police material

1. The subpoenaed material from Victoria Police relevantly show that on … 2017 the father was found guilty of contravening a Family Violence Intervention Order and was fined $2000 with conviction.  On … 2015 he was convicted and fined $200 for contravening a Community Corrections Order, and driving while his authorisation was suspended, in respect to both of which he was given a further Community Corrections Order.  On … 2014 he was convicted of unlawful assault and failure to answer bail and given a Community Corrections Order.  He was also again the subject of conviction and a community corrections order for driving whilst unauthorised. 

2. Perhaps more noteworthily, a police note in the records is as follows:

   ON THURSDAY THE …, 2016, AT APPROXIMATELY 6.45 THE ACCUSED WAS INTERVIEWED BY LEADING SENIOR CONSTABLE M AT HIS RESIDENTIAL ADDRESS IN SUBURB E. 

   THE ACCUSED MADE ADMISSIONS TO BREACHING THE INTERVENTION ORDER AND UNLAWFUL ASSAULT.

The Section 11F report

1. Ms N saw parties on 2 February 2018 to conduct interviews pursuant to s 11F of the Family Law Act (“the Act”).  I note that unsurprisingly the mother was detailing her allegations of family violence which the father was denying.  The father confirmed that he used amphetamines prior to the parties’ relationship but denied ever using ice.  He said he had attended rehabilitation during 2015 but relapsed on two occasions in 2014 and 2015.  Ms N reported on the second page of her report relevantly:

   During the interview Mr Shively engaged in passive aggressive type behaviours.  He refused to answer most questions put to him; he instead glared silently at this family consultant.  At times he stated when he considered a topic had been discussed in sufficient detail and other times he appeared to feign confusion.  Mr Shively frequently smiled and smirked as though amused and this was incongruent to the topics discussed. 

   Mr Shively’s lack of cooperation in CIC greatly impeded the process and limited information that could be obtained from him in order to make an interim assessment regarding his capacity to care for [X].  His behaviour offered little confidence in his communication skills and his ability to identify and make productive use of opportunities to reach child focused arrangements. 

   Mr Shively said he first received counselling at around age 19 years for anger management.  He did not consider himself a violent person but confirmed his anger could escalate quickly.  He confirmed he perpetrated some violence toward Ms Gann but not all that she had alleged.  He insisted he took responsibility for his actions and that he utilised strategies learnt in therapy to avoid acting violently and he therefore considered he would not be violent in [X]’s presence. 

   Mr Shively reported a history of depression.  He currently attended counselling for anxiety and depression which he attributed to the limited contact with [X].  Mr Shively confirmed he continued to grieve the loss of the parties’ relationship and felt it unlikely he would ever fully recover from the loss.  It is most likely Mr Shively’s unresolved feelings would continue to impede his ability to cooperatively co-parent. 

2. I note, however, that [X] was unaware of the animosity with her parents and when she saw her father she embraced him and was happy to see him. 

The report of Ms D

1. The following points are worthy of note.  Mr Shively indicated he had a history of illicit substance abuse (paragraph 1).  He was a poor historian, and vague, making it difficult to obtain a clear chronology (paragraph 2).  The father, as it were, repeated his assertions of the mother’s violence towards him and said the relationship became increasingly volatile in the latter two years.  He said violence went both ways.  He denied assaulting the mother (paragraph 11).  The father denied the allegations of violence in 2016 to 2017 when the mother alleged he strangled and grabbed her by the throat describing these as bullshit and being used to further exclude him from [X]’s life (paragraph 14).  The father was unable to provide a clear history of his drug use and tended to minimise it (paragraph 16). 

2. I note that Ms D found the father to be likely not completely forthright in his answers and presenting himself as being free of common shortcomings to which most people would admit (paragraph 36).  At paragraph 40 Mr Shively described his temper as being within the normal range and fairly well-controlled without apparent difficulty and at paragraph 41 the report noted that he would not be interested in treatment because he was satisfied with himself as he was. 

3. The FSN8 test produced a rating of moderate.

4. At paragraph 47 Ms D’s report observed:

   Situations where Mr Shively’s risk of violence is likely to be high are in the context of emotional disturbance, any future relationship difficulties (or situations where he feels that he has been wronged or provoked) and/or future illicit substance abuse.  Based upon his self-report and allegations he reported were made against him, it appears that any future violence will most likely take the form of either threats to harm others, verbal abuse or physical assault.  Risk associated with violence towards Ms Gann is low at this time as handover occurs through a third party and according to Mr Shively the last incident occurred in 2016 to 2017.  Therefore, [X]’s exposure to such violence is also low under these circumstances.  [X]’s exposure to violence increases if there is contact between the parties. 

5. At paragraph 50 Ms D opined:

   His overall tendency was to minimise and deny the consequences of his substance abuse, anger and impulse control which have led to violence (including intimate partner violence). 

6. I note that Ms D, at paragraph 51, expressed the view that given the long-term nature of the father’s substance abuse there was a risk of relapse especially in times of change or stress in his life.  At paragraph 52 the report noted:

   There was evidence of antisocial attitudes and behaviours by Mr Shively throughout his life, which he tended normalise, minimise and justify.  His attitude regarding violence against his ex-partner was especially worrying as he vehemently denied the allegations and accepted no responsibility.  His belief that he was able to control his anger was inconsistent with his engagement in physical altercations and family violence which have resulted in police and legal intervention.  The contravention of his Community Corrections Order demonstrates disregard for authority.  Despite counselling and attending a Men’s Behaviour Change Program, these attitudes are unlikely to shift, if they are not considered problematic by Mr Shively. 

7. At paragraph 56 Ms D noted that the father did not believe he required professional assistance at this time. 

8. Ms D went on to recommend that the father seek counselling to address his depression, anxiety, anger, propensity for violence and other difficulties.  She recommended three practitioners, although as earlier observed the father has found his own.  She recommended the father attend a drug and alcohol treatment for assessment, treatment if required and relapse prevention strategies, such as, Addiction treatment center L and consideration of continued drug and alcohol testing with changeover by an independent person. 

The report from Dr B

1. The father did not put his current treating psychologist on affidavit but rather appended a copy of a short note to his most recent affidavit filed 16 August 2019.  Dr B writes to the Court, “To whom it may concern”, certifying that he has seen the father for five sessions between 18 March 2019 and 6 August 2019.  The report relevantly asserts:

   Mr Shively presented with symptoms of low mood and acute stress within a context of Family Court issues in relation to access to his daughter [X].  He displayed symptoms of cognitive and sematic (i.e.physical) anxiety . 

   Mr Shively has attended all scheduled appointments and has indicated that he is committed to attending psychotherapy on a regular basis. 

   I estimate that Mr Shively will require a further five sessions with the psychotherapy to complete his treatment. 

The family report of Ms K.

1. As with other materials I have read the report carefully but do not propose to traverse it in detail. 

2. At paragraph 21 I note that the mother said she had not used illicit substances since December 2008, something that is plainly inaccurate.  The report traversed the father’s criminal history and noted charges through till July 2017 including alleged assaults on the mother.  I note that at paragraph 34 Ms K reported, “Overall, Mr Shively appeared overwhelmed and dismayed by the legal processes”.

3. I note that at paragraph 35, while the father conceded that both parents consumed illicit substances during their relationship, he denied ever having used methamphetamines (something he had otherwise already admitted in the materials before the Court). 

4. Paragraph 48, Ms K noted the mother concurred that the father’s time with [X] was progressing well and that [X] enjoyed spending time with the extended paternal family.  At paragraph 57 the mother reported that [X] loves her father and enjoys spending time with him.  The report noted the alleged assault on … 2015 and the resultant Intervention Order on … 2016, together with a further breach on … 2016 for which the father was charged and fined. 

5. I note that [X] was pleased to see her father (paragraph 70) and that she has a good relationship with the paternal grandmother.  At paragraph 83 Ms K observed:

   It is understood that interim orders provide for Mr Shively to adhere to supervised drug screens to test the presence of illicit substances.  In the event the Independent Children's Lawyer is satisfied with Mr Shively’s drug screens it is suggested that his time with [X] progresses to unsupervised time during the day with the paternal grandmother being in substantive attendance in the evenings. 

6. At paragraphs 84-85 the report observed:

   It is suggested that [X] spend time with her wider paternal family, inclusive of her father, each alternate weekend from Friday until Sunday afternoon, and time during school holidays, under the proviso that [X] continues to sleep at the home of the paternal grandmother or another venue in the presence of another extended paternal family member. 

   It is suggested that these restrictions remain in place until Mr Shively participates in a psychiatric assessment to assess the risk, if any he may exposed [X] to violent behaviours. 

7. The recommendations made by the reporter left the issue of parental responsibility to the Court and otherwise reflected the recommendations already described.

Findings about the facts

1. A significant issue in this case is the question of family violence.  The father impressed me, very vividly, during his time both in the witness box and perhaps even more particularly when in the well of the Court as a man with a very short fuse.  He made a number of objections which were loudly and aggressively expressed, and of their nature indicative of a complete lack of insight.  His manner was at times redolent of the description of him given by Ms N during the 11F interviews.  He was prone to minimising his former violence and drug use, and I note that he described the mother's allegations of violence on one occasion as irrelevant.  I have no doubt that he has assaulted the mother, although equally, I have no doubt that in this extremely volatile relationship she may at times sought to respond.  I have no doubt that the mother is, indeed, terrified of him.  The mother has not invented allegations to deprive the father's time with [X].  Rather, as the police records show only too clearly, she has responded to assaults and threats made from time to the time by the father, who has very poor self-control.  His incapacity to control himself even in the Court suggests very strongly that his behaviour outside Court would be exactly as the mother described it.

2. Both these parties used drugs during their relationship, but it seems clear that the father's was far more long-lasting.  The mother has not been drug-free as she has asserted from time to time from 2008, but I accept she is drug-free now and has been so for a protracted period of time.  It should be noted that she is now in what appears to be a stable relationship with her new partner, with whom she has had a child (the advent of this child has caused an adjournment of the trial, which explains the slightly lengthy period of time it took the matter to come on for hearing).

3. It is not necessary to make findings about the credit of the professional witnesses.  Ms D was not required for cross-examination, and Ms K's evidence was not the subject of serious challenge.

4. Against these findings, it is now possible to come to the statutory pathway, which is as set out in paragraph [65] of the decision of the Full Court of the Family Court in Goode & Goode [2006] FamCA 1346 (“Goode & Goode”) at [65] is as follows:

   “Summary

   [65]    In summary, the amendments to Pt VII have the following effect:

   1.  Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2.  The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3.  If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4.  The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5.  When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6.  The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
   (s 65DAA(5)).

   7.  The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends and holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   8.  Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9.  The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11.     The child’s best interests remain the overriding consideration.”

Parental responsibility

1. Nothing was really said about parental responsibility until the mother's closing submissions.  She seeks sole parental responsibility on the basis that it is difficult to come to agreement with the father.  Given his obsessive distaste for the mother, and his utterly misconceived assertions that she has invented things to deny him contact with [X], her difficulty is very comprehensible.  The Court is required to apply the presumption of equal shared parental responsibility unless, relevantly, there are grounds to believe that a parent has engaged in family violence (s 61DA(2)).  Here, there is no possible doubt that the father has engaged in family violence, and significant family violence at that.  The presumption is clearly rebutted.

1. The interpersonal dynamic between the parents is disastrous.  The father accuses the mother of deliberately and maliciously inventing fairy tales to deny him time with the child, which he says is the sole cause of his present depression.  It should be noted that it appears he may have suffered depression before he ceased spending time with [X], but that is the position he now adopts.  The mother remains terrified of the father.  Given the history of their relationship, that is unsurprising.  As a matter of practical politics, the mother has had sole parental responsibility at least since separation in 2014, when [X] was only about one year old.  I have no doubt that if I were to make an order for equal shared parental responsibility the father would use it to seek to control the mother, and even if I am wrong in that regard, there is no doubt that the prospect of dealing directly with the father, even by text or otherwise, would be extremely difficult for the mother, given the history of the matter.

2. Taking all the relevant considerations into account, and most particularly the terrible history of family violence, it is absolutely apparent that the mother should have sole parental responsibility, and I will so order.

The child's best interests - the primary considerations

1. All parties agree that it is in [X]'s best interests in principal to have a meaningful relationship with each of her parents.  The father would not accept that there is any need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.  I note that Ms D assessed the father's risk of violence as moderate, but low in the context of [X], particularly in circumstances where he does not meet the mother at changeover.  The Court is required to give greater weight to this latter consideration (s 60CC(2A)).  In my view, the desirability of [X] having a relationship with her father needs to be approached carefully in the light of the father's past history of violence, and his ongoing and total lack of insight into that violence, and/or his capacity to acknowledge and take responsibility for it.

The additional considerations, section 60CC(3)(a)

1. The child has not expressed any views in any formal sense and is still very young. Nonetheless, it is clear that she loves her father and was pleased to see him both at the s 11F interview and at the family report. Indeed, the mother herself accepts this.

Section 60CC(3)(b)

1. [X] has always lived in the primary care of her mother, with whom she plainly has a well-developed and secure relationship.  She appears, to the extent that the materials reveal the matter, to have a perfectly satisfactory relationship with the mother's new partner and with her half-sibling.  The mother described them as a family unit in a way that I found convincing.  So far as her father is concerned, [X] clearly loves him and he clearly loves her.  Nonetheless, the father's love for his child has about it a very possessory quality.  He said in exasperation at one point words to the effect, "She's my daughter, after all".  He thinks that he is entitled to spend time with [X] because she is his child.  I shall return to this aspect of the matter later.  It is clear that [X] has an excellent relationship with both extended families to the extent that she has seen them.

Section 60CC(3)(c)

1. Plainly, the mother has been the primary carer and has taken appropriate opportunities to make decisions about the major long-term issues in relation to [X].  The father has not participated in the same way.  Nonetheless, it would seem that this has in part been through the mother's refusal to allow him to do so.  I note that he did not file his application until August 2017, even though his time had ceased substantially earlier.  It seems more probable than otherwise that this reflects his turmoil at the end of the relationship and resultant depression, rather than a lack of genuine desire to be a part of [X]'s life.

Section 60CC(3)(ca)

1. The mother plainly has fulfilled all appropriate obligations to maintain [X].  The father has said, without challenge, that he pays child support directly to the mother, and that is to his credit.  Otherwise, but little has been revealed in this regard.

Section 60CC(3)(d)

1. Any move to unsupervised time will be unsettling and troubling for the mother.  She simply does not trust the father, and, in my opinion, it is understandable that she has this distrust, given the history of her relationship with him.  She has, however, to her credit offered overnight time on a preliminary basis with a view to review in about six months.  The father simply demands time all weekend because that is his right.  He obviously loves his child dearly, albeit in this slightly skewed way, and there seems no reason to doubt that [X] would enjoy more time with him.  I note that [X] has been spending whole Saturday to Sundays at the grandparents' home and the father has been present.  It would seem more probable than otherwise that [X] would enjoy time from Saturday to Sunday with her father.

Section 60CC(3)(e)

1. There is no identified practical difficulty or expense in either party's positions.

Section 60CC(3)(f)

1. The mother is plainly able to look after [X].  She has done so all her life.  No further comment in this regard is needed.  The father's capacity to provide for [X]'s needs is necessarily, to an extent, compromised by his egocentric, self-pitying personality.  Nonetheless, [X] loves him and it is to be hoped that the spend-time regime that will be embarked upon gives the father an opportunity, so to speak, to prove his mettle as a parent.  It is clear that both of the grandmothers have a well-developed capacity to provide for [X]'s needs.

Section 60CC(3)(g)

1. Both parents have had turbulent pasts.  The mother undoubtedly took drugs at least during the currency of her relationship with the father.  Some of her behaviour subsequent to separation might be thought slightly strange.  Taking a child of such tender years to Country O for extended periods of time suggests an immaturity and self-absorption that is inappropriate.  Nonetheless, she has now repartnered and impressed me as being stable, insightful and genuinely supportive, subject to understandable qualifications, of [X]'s relationship with her father.

2. Unfortunately, it is not possible to assess the father in such positive terms.  His evidence was given in a fashion aggressive and querulous, qualities he continued to demonstrate when seated at the Bar table.  He was self-pitying in his assessment of his circumstances, attributing all the blame for any of his difficulties to the mendacity of his former partner, and taking no responsibility for it himself.  There was a curiously mean-spirited quality to his complaints about the expenses of complying with Court orders for drug screens and/or potential Court orders relating to psychiatric assessment.  He is a self-employed tradesman, and there is nothing to suggest that the sums involved would be crippling to him.  He also has the assistance of his family readily to hand, it would appear from his mother's previous assistance with counselling, albeit that this was some time ago.  The father has, as I have already said, a very short fuse, and would, in my view, be highly likely to respond immaturely and inappropriately when stressed or perceiving himself to have been slighted in some way.  In this regard, it is imperative that the father not come into direct physical contact either with the mother, or with her new partner, in respect of whom the father makes wholly unfounded slurs (he has inferred that he might require to be checked for criminal record or for drug use).

Section 60CC(3)(h)

1. This is not relevant.

Section 60CC(3)(i)

1. The mother's attitude to the child and the responsibility of parenthood are completely unexceptionable.  The father's notion of parental responsibility is more one of parental possessiveness.  This is regrettable, but in the end, his is [X]’s father and that is the way he is.  I accept Ms D’s report that he sees no need to address any further treatment because he is satisfied with himself the way he is.

Section 60CC(3)(j)

1. Family violence is, of course, present in this case to an alarming degree, but it is not necessary to rehearse it again.

Section 60CC(3)(k)

1. As with the preceding criterion, there have been family violence orders and breach thereof, but once again, it is not necessary to repeat what has already been outlined.

Section 60CC(3)(l)

1. In my opinion, it is clear that the Court ought not make final orders.  The father is adamant that matters should simply be concluded to his satisfaction now, but the matter is simply not at that stage of development in the light of its history.  The father has not had unsupervised time, at the very least for a very long time.  His capacity to cope as a parent is not yet fully known and has not been demonstrated.  While I accept that two years’ worth of clean drug screens suggest in the strongest possible terms that the father is, indeed, free of drugs, I think it is imperative to [X]’s wellbeing that the mother's fears about the father's drug use are put to definitive rest.  I am going to order a hair follicle analysis going back for six months.  If the father really loves his child, he will embrace the opportunity to put to rest once and for all any lingering doubts about drug use.

2. Furthermore, the father's psychological wellbeing remains a work in progress.  Dr B says another five sessions are necessary.  Judging by the timeline previously adhered to and the fact that there are two more sessions due in September, the treatment with Dr B will not finish before October at the earliest.  It is important that Dr B and the father's GP liaise in a more constructive way than they apparently have thus far, and, whether they have done so more than the Court is thus far been told, it is important that the Court have a comprehensive report from those two practitioners prior to the return of the matter to Court.

3. This period of delay, of course, gives time for the father to enrol at Addiction treatment center L and to consider further whether psychiatric treatment might assist him.  I am not going to make orders for this, not least because Ms D report suggests that it would not be productive until and unless the father comes to achieve a measure of insight as to the benefit these initiatives would give him.  In a sense, I am leaving the ball in the father's Court.  If he voluntarily undertakes enrolment and assessment at Addiction treatment center L and/or engages with a psychiatrist, this is likely to benefit his case when the matter comes back.  It is up to him to determine whether or not he wishes to take these initiatives.

Section 60CC(3)(m)

1. There are no other matters which are considered directly relevant.

Conclusion

1. I am going to make the orders sought by the mother and the Independent Children's Lawyer that [X] spend unsupervised time with the father each alternate weekend from 9 am Saturday until 5 pm Sunday.  I am further going to order that during the term holidays the time extend from Friday to Sunday.  The father's proposal for week-about time straight off the bat is grossly overoptimistic.  [X] has never spent that long away from her mother.  The time contended for by the Independent Children's Lawyer is an eminently sensible step forward.

2. In the light of the father's ethnicity (shared by the mother) it is appropriate that there be shared time on Christmas and the Country C Christmas, which I presume will fall at a different date.  I have drafted standard orders in this regard, and for both Latin and Orthodox Easter.

3. I will order the child spend time with the father on the father's birthday and on [X]’s birthday.  I will hear from the parties further about name days.

4. The matter will be adjourned until a date in about six months from the delivery of this judgment, when the outstanding matters will be reviewed.

Overseas Travel

1. This discrete matter does not need lengthy discussion.  The mother wants to take [X] to Country C next year for some six weeks. In my view that is an entirely reasonable position.  Country C is where she is from and she has extensive family there.  She has offered to introduce [X] to the father’s family also during this time.  I accept that it is a long and expensive journey and a period of six weeks is in my view not excessive. Furthermore, Country C is a Hague Convention country and it must be said that there is nothing within the materials that suggests there is any risk whatsoever that the mother will not return to Melbourne. She is in a settled relationship with a gentleman who is not of Country C extraction by whom she has another child.  The prospect that she might seek to stay in Country C and not return is simply not on the horizon.  Obviously the father should have some measure of make up time and I will request the parties turn their minds to this.  If they are unable to agree at Court, I will revisit this matter when the matter returns to Court.

2. At this point, [X] has not spent any substantial blocks of time with her father.  His proposal to take [X] to Country C will have to wait until this obstacle is overcome, and he may repeat his application when that has occurred.

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date: 20 September 2019