TAGGETT & HACKSHAW

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAGGETT & HACKSHAW

[2020] FCCA 1042

Catchwords:
FAMILY LAW – Parenting Orders – where there are two subject children – where children have meaningful relationships with both parents – where best interest of the children are considered – where section 60 of the Family Law Act 1975 (Cth) are considered – where shared parental responsibility is in the best interest of the children – orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60, 61, 65

Cases cited:

Blinko & Blinko [2015] FamCAFC 146

Goode & Goode (2006) FLC 93-286

M v M (1988) 82 ALR 577

Mazorski & Albright [2007] FamCA 520

SS & AH [2010] FamCAFC 13

Applicant:

MS TAGGETT

Respondent:

MR HACKSHAW

File Number:

PAC 1849 of 2018

Judgment of:

Judge Humphreys

Hearing dates:

20 April 2020 – 22 April 2020

Date of Last Submission:

20 April 2020 – 22 April 2020

Delivered at:

Parramatta

Delivered on:

15 May 2020

REPRESENTATION

Counsel for the Applicant:

Ms Friedlander

Solicitors for the Applicant:

As Family Lawyers

Counsel for the Respondent:

Mr Greenaway

Solicitors for the Respondent:

Gonzalez & Co

ORDERS

That the parties have equal shared responsibility for the children of the marriage, X, born in 2014, currently five years old and Y, born in 2016, currently three years old (“the children”).
That the children live with Ms Taggett (“the mother”).
That the children spend time with Mr Hackshaw (“the father”) as follows:
(a)In week one of each alternate week from Friday, at the conclusion of school until Monday 9:00am.
(b)In week two of each alternate week from Friday, at the conclusion of school until Saturday 11:00am.
(c)For a period of three hours on each of the party’s birthday, as agreed between the parties, but failing this, time between 3:00pm – 6:00pm.
(d)That for the purposes of changeover that do not occur at school, the mother shall collect the children from McDonalds at Suburb A.
That the father shall spend time with the children in the first half of the NSW school holiday periods in even numbered years and in the second half of each school holiday period in odd numbered years; and
(a)At other such times as agreed between the parties in writing.
That the notwithstanding any other Order:
(a)The mother shall have care of the children from 2:00pm on Christmas Eve until 2:00pm on Christmas Day in even numbered years and from 2:00pm on Christmas Day until 2:00pm on 26 December, in odd numbered years.
(b)The father shall have care of the children from 2:00pm on Christmas Eve until 2:00pm on Christmas Day, in odd numbered years and from 2:00pm on Christmas Day until 2:00pm on 26 December, in even numbered years.
(c)The person who does not otherwise have care of the children on their birthdays, will spend time with the children, from 3:30pm until 6:30pm, if it is a school day, or from 2:00pm to 5:00pm if it not a school day, unless otherwise agreed.
(d)If Mother’s Day falls on a day when the mother does not otherwise have care of the children, the mother will have care of the children from 9:00am until 6:00pm on Mother’s Day, notwithstanding any other order.
(e)If Father’s Day falls on a day when the father does not otherwise have care of the children, the father will have care of the children from 9:00am until 6:00pm on Father’s Day, notwithstanding any other order.
(f)The father shall have the care for the children for the purposes of NAIDOC week, as agreed between the parties in writing but failing agreement, from 5:00pm on the Saturday, prior to the commencement of NAIDOC week until the commencement of school on the Monday morning of NAIDOC week.
(g)For the purposes of the children’s ‘right to passage’, the children shall engage with the Community Elders between the ages of 12 and 13 years old, in the presence of the father. This time will occurring during the father’s time with the children in the school term holidays, subject to the Elders’ availabilities.
For the purpose of these Orders, the NSW school holiday periods are deemed to commence at 9:00am on the first day after the school term ceases and changeovers shall occur at 6:00pm on the day in the middle of the school holiday period and the school holiday periods are deemed to end at 6:00pm on the day before the school term resumes.
For the purposes of Order 2(f), the father shall provide 14 days’ notice to the mother of his spending time with the children as outlined in that said Order.
For the purposes of Order 2(g), the father is to inform the mother of the nature of the ‘rights of passage’ for each of the children and provide the mother with 14 days’ notice prior to the ‘rights of passage’ occurring for each of the children.
The parent who does not have the care of the children, shall communicate with the children via FaceTime on the child’s device, each Wednesday between 7:00pm to 7:30pm. The parent who does not have the care of the children on those days, shall be responsible for making the FaceTime call to the children.
The parents will both be entitled to attend all events involving the children, including:
(a)Sporting fixtures;
(b)Extracurricular activities that allow for parental attendance;
(c)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions; and
(d)The parent who has the children in their care on the day of such activity will be responsible for their day to day care at such event and the children’s transportation to and from that event.
The parties shall ensure that the other is kept informed of the following information in relation to the children:
(a)Any serious medical problems or severe illnesses suffered by the children whilst they are in their care;
(b)Any medication that has been prescribed to the children and the reason for such medication;
(c)Any treatment that is required to be undertaken for the children;
(d)Any social, school or religious function that the children is to attend from time to time;
(e)The residential address and telephone contact details of the parties and any changes to such details within 24 hours and the particulars of any other person who may reside in the same home as the children from time to time; and
(f)Any other matter relevant to the children’s welfare.
For the purposes of communicating information between the parties, the parties shall;
(a)Communicate by telephone in regards to matters of an urgent nature; and
(b)Otherwise, communicate by “Divvito App” about day to day matters, including arrangements for each party to spend time with the children.
In the event that the travelling parent intends to travel overseas with the children, the travelling parent must provide the other parent, not less than 30 days’ notice prior to the date of departure (or such lesser time as may be agreed in writing by the parents) with the following:
(a)Details of the intended destination;
(b)Details of the length of the trip;
(c)Details of the intended return date;
(d)Contact details for the children whilst overseas including address and telephone number;
(e)Details of persons travelling with the children other than the father or mother, including but not limited to their full names; and
(f)A copy of the proposed itinerary;
(g)Copy of the tickets (electronic or otherwise) and any booking confirmation notice;
(h)The booking identification number for the travel.
That each party refrain from making critical or derogatory remarks in relation to the other party and in particular, in the presence or hearing of the child and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.
That within 30 days of the date of these Orders, both parties enrol in a Keeping in Contact Program and complete that course.
That neither parent enrol the children in extracurricular activities which is to occur on other parents’ time with the children, without first having that other parents’ agreement.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1849 of 2018

MS TAGGETT

Applicant

And

MR HACKSHAW

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern parenting matters between Ms Taggett (“the mother”) and Mr Hackshaw (“the father”) (“the parents”). The proceedings are in relation to the two children of the marriage, X, born in 2014 and currently 5 years of age and Y, born in 2016, currently 3, nearly 4 years of age, as at the date of the hearing (“the children”).
The proceedings were heard at the Parramatta Registry of the Federal Circuit Court over three days commencing on Monday, 20 April 2020. The proceedings were conducted remotely, using Microsoft Teams to provide a virtual courtroom. The Court acknowledges and thanks all persons involved with the hearing, in working constructively to enable it to go ahead in the manner that it did.

Background

The relevant uncontested background facts to the matter are as follows:
·   The father was born in 1985. The father is currently 35 years of age. The father is of Aboriginal heritage, identifies as an Aboriginal person and is accepted by the Aboriginal community as an Aboriginal person.
·   The mother was born in 1986 and is currently 34 years of age. The mother is a Country B citizen with permanent resident status in Australia.
·   The parties met in Australia around November or December 2012. At the time, the mother was on a student visa, and living in Suburb C.
·   The parties commenced a de facto relationship a few months later. In 2013, the parties were married in Country B. The mother applied for an Australian spouse visa in early 2014.
·   The child of the marriage, X (“X”), was born in 2014 in Australia.
·   In 2015, the mother, father and X relocated to Country B. The mother falls pregnant whilst in Country B.
·   The parties relocate to Australia. In approximately January 2016, the party’s separate for approximately four months.
·   Approximately 2016, the mother and father recommence the relationship. The child Y (“Y”) was born in 2016.
·   In 2018, the mother was granted permanent residency in Australia.
·   In late January 2018, the parties separate on a final basis. The parties divorce is made effective as of 12 December 2019.
·   On 30 April 2018, the mother files and initiating application with the Court. Orders are made on 16 May 2018, by the Court, giving the parties equal shared parental responsibility for the children. The children live with the mother and spend each Tuesday from 5:00pm to 5:00pm Thursday, with the father.
·   Following an Interim Hearing on 26 July 2018, orders are made on 20 August 2018 that the above arrangements are to continue.
·   During the period in 2018, the father takes the children on a holiday to Country D.
·   On 13 November 2018, the mother files an Application in a Case, seeking to be able to go on a short holiday with the children to Country B to visit family. Consent orders are made to facilitate the overseas holiday.
·   The eldest child, X, begins kindergarten in 2019.
·   In August 2019, the mother and father attend mediation. No agreement is reached.

Proposal of the Parties

In the mother’s original Initiating Application filed 30 April 2018, she proposed that she and the father have equal shared parental responsibility, that the children live with her and that the father spend time with the children in week one, from Friday 4:00pm to 5:00pm Sunday and in week two, from Wednesday 9:00am to 9:00am Thursday.
In an Amended Initiating Application filed 15 October 2019, the mother now seeks orders that she have sole parental responsibility of the children, that the children live with her and that the father spend time with the children in week one from after school on Friday to before school on Monday and in week two, from after school on Friday to 10:00am Saturday morning.
Various ancillary orders are sought in relation to time during school holidays, that the parent who does not have care of the children, be able to communicate with children via FaceTime at set times, that the father be restrained from consuming alcohol 12 hours prior to and during any time he spends with the children. It is proposed that the children’s passports be retained with the mother and that each party is permitted to remove the children from Australia, as agreed between the parties in writing, for holiday periods.
The father proposed in his Response filed 16 May 2018, that each of the parties have equal shared parental responsibility of the children. Further, the children live with the father and spend time with mother as follows:
· Each week from Friday 9:00 am until the following Sunday at 9:00am,
· At other times as agreed between the parties.
At interview with the Family Consultant, the father modified his proposal in that he and the mother share parental responsibility for the children, that the children live with him and the mother on equal share time basis, with changeovers occurring on weekends.
If the children were to live principally with the mother, the father seeks that he spend time with the children in week one, from end of school Friday to start of school Monday and in the alternate week from end of school Thursday to 11.00 am Saturday.

Parenting Matters

The Law – Family Law Act 1975 (Cth) (“the Act”)

The relevant statutory provisions applicable to proceedings in relation to the children are set out in Part VII of the Act.
Section 60B of the Act sets out the objects and principles of Part VII of the Act as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

Section 60B(2) of the Act, relevantly provides as follows:
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture
Section 61DA of the Act, relevantly provides:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
This is also confirmed by s 65DAA(2)(d) of the Act:
Consider whether the child spending substantial and significant time with each of the parents is reasonably practicable.
Section 60CC of the Act sets out a list of matters that the Court must consider in determining what is in the child’s best interest. Whilst the Act requires the Court to consider all the matters in s 60CC of the Act, the central issue in those proceedings is balancing the primary considerations set out in s 60CC(2) of the Act against one another. Those considerations are as follows:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2)(a) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence (s 60CC(2)(b) of the Act).
Section 60CC(3) of the Act sets out additional considerations in determining what is in the child’s best interest. Broadly, these considerations deal with the following matters:
a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and

(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

The task of applying s 60CC(3) of the Act – Additional Considerations, is an evaluative exercise that necessarily involves the trial Judge determining what weight should be given to each relevant consideration. Each of the considerations found in s 60CC of the Act must be taken into account and needs to be considered as regards to each of the three children, who are the subject of these proceedings.

Relevant Case Law

The relevant principles in relation to parenting proceedings are well settled (see Goode & Goode (2006) FLC 93-286). In Mazorski & Albright [2007] FamCA 520, Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:
…a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child”.
The High Court in the matter of M v M (1988) 82 ALR 577 sets out the relevant test in relation to unacceptable risk. The assessment of unacceptable risk is to be derived from the accumulation of factors proven at a civil standard. In the matter of Blinko & Blinko [2015] FamCAFC 146, the Full Court provides that an unacceptable risk of harm, that is said to be present, needs to be evaluated against the prospect of it actually occurring, as against the protective measures that might be put in place to ameliorate or minimise that risk to an acceptable level.
In SS & AH [2010] FamCAFC 13 at [100], the following was said:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
A consideration of the relevant case law and the statute law, makes it clear that the paramount consideration in making parenting orders, is the best interests of the child (see s 60CA of the Act). There is a presumption it is in the best interests of the child for the child’s parents to have equal shared parental responsibility (see s 61DA of the Act). However, that presumption does not apply if there are reasonable grounds to believe a parent of the child, has engaged an abuse of the child or family violence (see s 61DA(2) of the Act).

The Evidence

Evidence of the Mother

In the mother’s trial affidavit sworn 15 October 2019, she alleges she was initially the main carer for X. The father did not get up during the night to feed X. Sometimes on weekends, if the father was not working, he would help care for X by giving him a bottle, changing nappies and playing with him.
The father played sport on the weekend and was not home a lot on the weekends to help out. The father would also have the mother collect him from the pub or from his friend’s house in the early hours of the morning after a night out drinking.
There were a lot of arguments during the relationship. The children were normally present when the parties argued. The mother alleges that the father would swear at the children when he was angry as well. Initially, the mother states she would not yell back at the father but as the years went on, she ‘would yell back at him if he yelled at me’.
The mother alleges that during arguments, the father would call her names such as a “pig and animal”, and would threaten me a lot about getting deported or by calling the police. The mother says that she was concerned if she had called the police and the father was charged, he was lose his job. The mother alleges that sometimes the father would say words to the effect of “if you call the police, I will keep hurting you until they get here and make it worth the call”. During the relationship, police attended the family home approximately five or six times.
On or about December 2014, there was an argument between the mother and the father. The mother alleges that the father grabbed a thong and hit her with it on her shoulders, arms and legs. Police were called and attend the home. The mother stated that an Apprehended Violence Order (AVO) was made against the father for her protection. The father was charged with common assault as a result of the incident. The father appealed the initial sentence in the District Court and received a Section 10 two year good behaviour bond.
After this incident, the father and mother decided to move to Country B. Whilst in Country B, the arguing continued. The mother alleges that if the father got drunk, he would continue to insulted and yell at her. On one occasion, the father broke her laptop, iPads and other items.
The parties moved back to Australia around 2016. The mother deposes that after another argument, whilst she was pregnant with her second child, she separated from Mr Hackshaw for about three months. The eldest child, X, lived with the mother during the separation.
The father and mother resumed the relationship around the time Y was born. After Y was born, the mother stopped working. The father worked as a professional at Suburb E, until he got a job at Employer F as a professional.
The mother deposes that on 31 January 2018, she and the father were having an argument that concerned the children’s passports. The father could not find them. The mother alleges that the father then yelled at her saying “leave now get out, I’ll throw all your stuff out if you don’t move now”. The mother wanted to take the children with her but the father would not allow it. The mother left with no possessions and slept in the car for a few days. The mother tried to get the children back a few days later. The father was at work and the children were being cared for by a friend, Mr G. When the mother went to Mr G’s house, he called the police. The police arrived, the mother explained what happened and the police gave the children back to her.
The children were returned to the mother’s care on the afternoon of 19 May 2018, as a result of interim orders made by the Court. The mother acknowledges that the father has tried to cooperate and be civil towards her, however, there were several occasions when he was up to one hour late in returning the children. The mother alleges the father would bully and harass her if she did not agree to give him additional time.
The mother deposes that she agreed for the father to take the children in 2018 on a holiday to Country D. In around 2018, the mother purchased tickets for a holiday to Country B to see her family with the children. It was necessary for the mother to file an Application in a Case for the father to finally agree for her to go on a holiday with the children.
In 2019, the mother believes the father went on a two-week holiday to Country B with his new partner Ms H. The father told the mother that he was going to hospital at the time.
In early 2019, X started kindergarten at Suburb J School. The mother alleges that the father was resistant to X starting school in 2019 stating “I don’t want him to start school until 2020, when court is over”.
The mother deposes that she believes it is Ms K, (the paternal grandmother of the children) who regularly cares for the children on days that the father is meant to be spending with them.
In 2019, the mother went on a holiday to Country L with a friend. The mother states that the children stayed with the father during this time. The mother’s solicitor received an email from the father’s solicitor, which stated “we are instructed that your client as relinquished care of the children…”. The mother alleges that at no time did she relinquish the care of the children to the father.
The mother alleges that the father has continued to bully and harass her during the proceedings. The mother alleges that the father has continued to emotionally and verbally abuse at her in person, via text messages, such as:
Merry Christmas Hitler;
[the children] deserve a better mother than you;
You don’t help [X] you just ignore him;
You’re (sic) not human;
U (sic) love money more than them
During a changeover on 26 September 2019, the mother alleges the father said to the children words to the effect of “who do you want to live with”. The father was shouting, which was making Y very upset. Y told the mother “let’s go home mummy, let’s go home”. The mother responded “I’m not leaving until I have X”. The mother alleges that she saw the father make a telephone call, believing it was to his solicitor, after which he allowed X to get back in my car. This incident upset and frightened the children and made the mother feel extremely distressed.
The mother deposes she is currently living in a three-bedroom house with a small backyard in Suburb M with the children. Each of the children have their own rooms. The mother states she works casually as a health care worker at Employer N in Suburb O, usually working 3 to 4 days per week. The mother deposes that she is of good physical and mental health. The mother attends counselling every fortnight to talk about her feelings now that her relationship with the father is over. The mother deposes she also receives support from the Domestic Violence Service Management Organisation, Suburb P.
Each of the children have weekend activities. Y attends sports on Saturdays. The children attend swimming lessons on Thursdays. The father sometimes watches the children’s swimming lessons. If X has sports on Saturdays, the father will take X to sports
The mother states she does not know much about Ms H, who is the father’s current partner. The father’s current partner is about 22 years old, from Country B and does not have any children of her own. Other than a sports fee of $200 and $90 for Y’s sports costume, the father has not contributed to assisting the mother financially to provide for the children since separation. The father does not pay child support. The father does not contribute to the childcare fees for Y and has refused to do so.
Under cross examination, the mother confirmed that she is of the view that the father is a good father and even though she does not get on well with him, she does not mind the children spending time with him. The mother conceded that the children had spent extended periods of time with the father, including on occasions, when she had gone overseas. When the mother had taken the children overseas, she agreed to make up time with the father.
The mother confirmed that she works as a health care worker with an agency on a casual basis. The mother is able to vary her time to suit her needs and those of the children. Y had been enrolled in day care five days per week but this has recently changed to 3 days per week.
Counsel for the respondent suggested to the mother that the reason she wanted sole parental responsibility, was that she did not want to communicate with the father. The mother denied this, stating she will ask the father for his opinion but just wants to have one decision-maker. The mother denied that she had not told the father about Y’s enrolment at Suburb A pre-school, until just before Y commenced.
The mother was asked some questions about attending the Keeping Contact Course. The mother alleged the reason why she had not enrolled in the course, was due to the fact that the father commenced the course while she was on holidays overseas. The mother accepted that the father had been involved in the care of X and that he had attended day care at Employer R, Suburb E. This involved the father driving to Suburb E with the child, dropping off at day care and then picking him up and bringing him home.
It was put to the mother by Counsel for the respondent that she had been violent towards the father and had also called him various names and throwing things. The mother seemed to express a surprise at the suggestion of the father’s allegation, which was contained in his affidavit, that she had thrown food on him on one occasion and thrown his iPad and smashing a television. The mother was asked if she’d ever called the father “an animal” and she replied “maybe, I cannot remember”. The mother admitted calling the father a thief and that she would say bad things back to him during the course of an argument.

Evidence of the Father

The father relied on two affidavits, dated 15 October 2019 (“first affidavit”) and 9 April 2020 (“second affidavit”). At the commencement of the father’s evidence, he advised the Court that he had married his girlfriend, referred to as Ms H in the Family Report. Ms H is also of Country B background. Ms H still resides in the Suburb S area and the father said he spends time both at his rented premises in Suburb T, as well as her flat in Suburb S.
In the father’s first affidavit, he concedes that during his relationship with the mother, they had a number of disagreements and arguments. There were times when both parties would swear at each other and call each other names. The father states he deeply regrets these occasions and in the future, will make attempts to ensure that the children are not subject to any arguments.
The father admits to an incident on 24 December 2014, where he picked up his thong and hit the mother twice on the leg. Police subsequently attended. The matter came before Suburb U Local Court. The father appealed the severity of the sentence and in the District Court, was given a Section 10 bond with no conviction.
The father states that during one argument in Australia, the mother picked up his laptop and threw it at of the television. Both the laptop and television were broken as a result of this incident.
The mother and father moved to Country B in 2015 and stayed there until late 2015. There was an argument when it was alleged by the mother that the father had overpaid for a takeaway meal. During this argument, the father alleges the mother broker a ceramic plate over his head and as it fell, shards of plate cut his foot. The father alleges that the mother threw all of his clothes out the front of the home and told him to “get out, take him and go”, referring to taking X. The father states he did not retaliate, took X, left and stayed the night at a friend’s home.
The father confirms that in January 2016, he and the mother had separated for approximately four months but recommenced the relationship approximately six weeks before the birth of Y.
In early January 2018, the father deposes a friend approached him and said that the mother had a profile on the ‘Plenty of Fish’ dating website. The father states he approached the mother and asked her about whether she was on the dating website. The mother confirmed she was. The father states that the parties agreed to end the relationship and separate on a final basis. They continued to live in their home at Suburb T until the mother moved out. The father states he had been sleeping on the lounge from May 2017, until the mother moved out of the family home, at which point the children stayed with him.
The father states that during the times of their relationship, the mother did not care for the children on a day-to-day basis. The mother would do household washing and the father would care for the children. The mother did not cook throughout the relationship. If the father did not cook, he alleges the mother would order takeaway food.
On 23 October 2018, the children were in contact with the father. X told the father he had a sore leg. The next day, the father took X to his General Practitioner and was told to take X straight to the Children’s Hospital at Suburb V. X was diagnosed with Rheumatoid arthritis. The father alleges he sought to contact the mother but was unable to. The mother did not attend the hospital until 4:00pm on 25 October 2018. The father alleges that during their time in Country B, which was for about six months, the mother worked full-time at a family business. The father states that he stayed at home and looked after X on a full-time basis, which included but was not limited to feeding, changing bathing and playing with him.
The father deposes that on 4 September 2019, when he went to collect the children from the mother at Suburb A McDonald’s, she sent a number of text messages. In those text messages, the mother advised that she would be going away and returning on 17 September 2019 and that the father was to care for the children. The father states that the mother had given no prior notice that she would be leaving the children in the sole care. The father received the messages after he had already collected the children.
The father deposes that he is a man of Aboriginal descent from the ‘W’ mob from the Town Z area. The father’s children have been identified as Aboriginal and the father wishes the children to be raised knowing the Aboriginal heritage. The father deposes that he lives in the Suburb T area in a three bedroom rented premises. The father is no longer working but currently studying at University. The father has been diagnosed with diabetes and therefore cannot drink to excess.
During cross-examination, the father advised that he was considering relocating permanently to Suburb S and if so, the children could be enrolled in Suburb E School, which he thought was a very good school and is the local school for where he lives.
It was put to the father by Counsel for the applicant that he did not propose to call Ms H in evidence and thus denied the opportunity for the Court to evaluate her, in terms of her relationship with the children. The father denied this, stating that Ms H had been part of the Family Report.
It was put to the father by Counsel for the applicant that he had called the police on a number of occasions, including one where he alleged that the mother had broken into his premises and had taken things, as well as one occasion, where he said she parked her car in the driveway and was blocking it. It was put to the father that an Apprehended Violence Order (AVO) was issued against him, following the incident in 2014. The father denied that this was the case. The Court notes that this is incorrect.
It was put to the father by Counsel for the applicant that he was verbally abusive towards the mother. The father admitted this but believed the mother deserved the comments at the time. The father said that the mother sometimes abuses him. It was put to the father that he had continued to use the children to try to manipulate the mother, to which he denied. It was put to the father that he tried to make the mother’s life difficult, which again he denied. The father also denied that he suffered from Attention Deficit Hyperactivity Disorder.

Evidence of Ms K, Paternal Grandmother

In an affidavit sworn 6 December 2019, Ms K confirms that she is the paternal grandmother of the children of the marriage. Ms K has been actively involved in her grandchildren’s lives since their respective births. Since the separation of the parents, Ms K has not seen her grandchildren as often as she used to. On a few occasions, when the father had car issues, he has asked her and her husband Mr AA, to assist in picking the children up from the mother.
Ms K states that she is a full-time process worker and is only able to spend a very limited time with her grandchildren. Ms K denies regularly caring for her grandchildren on the days when the father is meant to be spending time with them, due to working five days per week.
Ms K witnessed an event in late September 2019 during a changeover at Suburb A McDonald’s. Ms K was unshaken as to her evidence that the mother locked her car doors after Y was placed in the car.
Ms K states that she has assisted the father and the mother to the best of her abilities when required, however, is very reluctant to involve herself in their disputes. Ms K only seeks the best for both her grandchildren and hopes the matter can be resolved.

Evidence of the Family Law Consultant

A Family Report dated 3 May 2019, has been prepared by Family Consultant, Ms BB. In terms of relative risk factors at paragraph 14 onwards of the Family Report, it was noted that the mother alleged that the father had subjected her to physical and verbal abuse during their relationship. The mother expressed concern she may be of risk of ongoing verbal abuse and intrusive behaviours, such as attending her house uninvited by the father. The father alleged he was subjected to verbal abuse and controlling behaviour by the mother throughout their relationship. The father further alleged he was subjected to physical abuse by the mother during the six-month period they lived in Country B.

In terms of child safety and well-being at paragraph of the Family Report, the father alleged that the mother prioritises her needs of the children’s needs. The mother in turn states that the father has engaged in excessive physical discipline of the children on one occasion.
At paragraph 20 of the Family Report, the mother alleges the father has a history of excessive alcohol use, leading to an increase in aggression. The father reported that he had a history of anxiety and depression.
At paragraph 37 of the Family Report, it is reported that the mother expressed that she was not concerned for the children’s safety when they are with the father, but she also said that he smacks the children on the bottom. The mother expressed concern that the father’s partner, Ms H, smacked the children. The mother alleged that the father may not show adequate concern for the children’s safety.
The father expressed some concern as to the mother’s relationship with the eldest child X, alleging that when X was born, she was not “attached” to him. The father alleges that the mother left X alone at the house, when he was four months old and that he arrived home at 2:00am to find X alone and asleep. The father alleges that the mother went back to work when X was five months old, because she did not wish to care for him.
At paragraph 48 of the Family Report, the father said he did not want the children to grow up without knowing their family and history. The father said he comes from several generations of the “stolen generation” and that he has worked hard to track his family history. The father stated it was important to him that he can tell the children the story of their indigenous history and that they be supported to be involved in indigenous activities. The father said this included involving them in indigenous heritage activities, such as spending time with family in Town CC and taking them to Land Council meetings. The father was also happy for the children to be involved with their Country B heritage and that the children be permitted to travel overseas with each parent.
At paragraph 50 of the Family Report, the father said he is currently studying full-time and intends to study to become a health care worker. The father stated he had been in a relationship with Ms H for approximately one year.
At paragraph 57 of the Family Report, the father admitted drinking alcohol approximately once a fortnight, but due to the fact that he has diabetes, he is able to only have “one or two schooners”. The father stated he has not had “a big session” in a long time. It is common ground that the mother does not drink or use any illicit substances.
At paragraph 64 of the Family Report, the father admitted that he experienced depression for a period when he was 19 years old and experienced panic attacks when he was 24 years old, but that he had ceased all mental health treatment prior to his relationship with the mother and was cleared by the local health team. Ms BB noted that the mother stated she was called names by the father and he has become verbally abusive towards her. At paragraph 74 of the Family Report, the mother stated the father was physically abusive to her on one occasion, prior to their marriage and he continued to hit her on a frequent basis, after their marriage. After an incident that resulted in an AVO being put in place, the father stopped hitting her.
At paragraph 76 of the Family Report, the father stated that during the relationship, both he and the mother were both bad, yelling at each other. The father admitted being physically abusive, once towards the mother, when he hit her with a thong. The father said he was ashamed of this.
At paragraph 95 of the Family Report, Ms BB notes that the eldest child X, appeared to have a positive relationship with each of his parents. Both parents expressed concern with X’s speech and readiness for school. It is considered that any change in X’s schooling arrangements would be highly disruptive to him at this point.
The youngest child Y, presented as happy and confident, except in separating from her parents, Y appeared to enjoy spending time with each of her parents and appeared to be confident with each of them to explore independently and to approach them for attention.
At paragraph 98 of the Family Report, it was reported the mother presented as articulate but somewhat anxious. The mother seems slightly overwhelmed at times, speaking of how active the children are.
At paragraph 99 of the Family Report, it was reported the father presented as articulate and assertive. The father spoke in a positive manner regarding his children and interacted with them warmly and appropriately. When Ms H joined the observation, the father appeared to withdraw somewhat from his interactions with the children and allowed Ms H to take over. Both children appeared comfortable playing with Ms H.
At paragraph 100 of the Family Report, Ms BB noted that both parents reported that co-parenting relationship is problematic. Given that each parent has considerable input into the children lives to date and each has a significant relationship with the children, it is likely the ability of the parents to communicate and negotiate and to minimise wise conflict between them, will significantly impact on the children’s well-being in the future.
At paragraph 110 of the Family Report, Ms BB recommends that the parents share parental responsibility for each of the children. Ms BB recommends that they live with the mother, spend alternative weekends with the father and the Friday night of each other week with the father. It is further recommended that each of the parents engage in the Keeping Contact program in order to develop a positive, child focused co-parenting relationship.
At paragraph 102 of the Family Report, Ms BB notes that if the Court were to find that one of the parents has engaged in coercive, controlling violence towards the other, it may be beneficial if contact between the parents is minimised and that clear arrangements and boundaries, for co-parenting communications, be established such as using agreed written forms of communication only, which are focused only on the children’s needs. It is further recommended that an injunction as to the father consuming alcohol prior to and whilst the children are in his care continue.
Under cross-examination by Counsel for the applicant, Ms BB acknowledged that continuing conflict would be problematical for the children, as it can undermine their relationship with one or both parents. It was important for parents to avoid conflict in front of the children. Sole parental responsibility may be better if the Court were to find that the father uses the children to get back at the mother. Ms BB indicated she is still concerned as to changeovers midweek, but acknowledged that X will be able to cope as he gets older. Y will start school in the near future and could have similar issues if midweek changeovers were to occur.
During cross-examination by Counsel for the father, Ms BB confirmed that changeovers were to occur at school. Ms BB indicated she was concerned that the mother did not appear to follow her recommendations and undertake the “Keeping Contact Program”. Ms BB indicated she had no concerns regarding alcohol consumption of the father, during contact, based on the history that have been provided. Ms BB expressed some concern of the proposal of the children to relocate their schooling from their current schools to Suburb E.
It was put to Ms BB that the mother may be exaggerating the level of conflict. If the Court was to conclude that this was the case, this would this be evidence that the mother was unable to put her own needs before the children. Ms BB agreed it would be.

Consideration

Factual Findings

Matters of credibility

The mother gave reasonably consistent evidence and was prepared to make a number of concessions about her behaviour during the course of the marriage, including throwing food and throwing of an iPad during one argument. The mother also made concessions about calling the father names and other derogatory language.
The father readily admitted he had assaulted the mother on one occasion. The father initially seemed confused that an order AVO had been issued against him after the assault and only conceded to the matter when he was provided with a copy of the orders of the Local Court. The father confirmed that he used derogatory language in text messages to the mother. In this regard, the father had little choice given that they are reproduced in affidavit evidence from the mother. The father stated that the mother “gave as good as she got”.
It was of concern to the Court that" the father only advised the Court, during the hearing, that he had married his partner, Ms H, in 2020. It was also of concern, that whilst Ms H attended the Family Consultant’s meeting and features in the report, she was not called to give evidence and the Court was denied the opportunity to see her in person and assess what part she might play, in the upbringing of her two stepchildren. Only at the end of the hearing and during submissions, did the father indicate he would continue to reside in the Western Sydney area and would not seek to enrol the children at Suburb E School.
On the evidence presented, the Court was not in a position to form an adverse opinion in relation to credibility against either of the parties. The Court was unable to prefer the evidence of one of the parties as compared to the other based on a credit assessment. This required the Court to carefully evaluate available evidence and the competing proposals in order to determine the best interests of the children.

The issue of family violence

There is unchallenged evidence before the Court that in 2014, the father hit the mother with his thong. The father readily admitted this to the NSW Police. This resulted in the father being charged with assault. The father entered a guilty plea before the Local Court. On appeal before the District Court of NSW, the father received the benefit of a Section 10 bond, with no conviction recorded. A 12 month AVO was also made. No breaches of that order are recorded nor has any further domestic violence order been made.
Evidence has been given before the Court of arguments between the parties. This included the throwing of food and other items on two separate occasions. The mother accuses the father of calling her derogatory names during these arguments. The mother stated she did not respond initially, but over time began to respond in kind.
There is clear evidence before the Court that since separating, the father has used derogatory language towards the mother in text messages. The use of this language does not paint the father in a good light and shows a level of immaturity and not being able to focus on the needs of the children, as compared to his own.
In September 2019, an incident occurred at a changeover at McDonalds at Suburb A. The parties’ accounts are at odds with each other as to the cause of the incident. The Court prefers the evidence of the paternal grandmother, Ms K, that the mother locked her car doors and would not allow the father to place X into his car seat.
The mother has conceded that the father is a ‘good father’. The father has spent substantial time with the children since the parties separated including extended periods, as recently as late last year, when the mother went overseas on a holiday. The mother was quite happy for this to take place.
While there has been a relatively low level of family violence, the Court is not satisfied it is sufficient to displace the presumption in relation to shared parental responsibility. The Court is also not satisfied that the actions of the father are sufficient to amount to controlling and coercive behaviour.
The Court is satisfied however, that any orders the Court makes, should limit the level of interaction physically between the parties and that communication between them should be restricted to text messages or by another means, which relate to the children only. This has been agreed to by using the ‘Divvito App’. Further, the Court notes that it has been agreed between the parties, that each of them will not make derogatory remarks about each other and in particular, in front of the children. This should put clear and appropriate limits on both parties that will lessen the possibility of further incidents between them.

Considerations under s 60CA, 60CC(2) 60CC(3) of the Act

In making any orders, the Court gives particular regard to s 60CA of the Act, which states that the child’s best interests are the paramount consideration in making a parenting orders. In determining what is in the child’s best interest of course, must consider the matters set out in

s 60CC(2) of the Act, being the need for the children to have a meaningful relationship with both the parents and the need to protect them from exposure to abuse, neglect and family violence. The Court is satisfied that the proposed orders of the Court will achieve this end.
The Court is also required to give consideration to the matters set out in s 60CC(3) of the Act. These are as follows:
Section 60CC(3)(a) of the Act:
The children are too young to express any views that the Court thinks are relevant to the question as to where they should live.
Section 60CC(3)(b) of the Act:
The Court is satisfied that the children have a warm and loving relationship with each of their parents. The Court is also satisfied that the children have a good relationship with their paternal grandparents. Based on the Family Report, the Court is satisfied that the children have a good relationship with the father’s new partner, Ms H.
Section 60CC(3)(c) of the Act:
The Court is satisfied that each of the parents has taken the opportunity to spend time with the children and communicate with them well. There is some dispute as to whether or not the mother has fully consulted with the father in making decisions about long-term issues, in relation to the children. The Court has concerns that if it were to order sole parental responsibility, which the mother seeks, she would not consult with the father in relation to such issues.
Section 60CC(3)(ca) of the Act:
The Court notes that the father is not currently paying any child maintenance, but it does not appear that any application has been made for the payment of this. In the absence of any evidence of an application being made for the payment of child maintenance and any failure to fulfil any obligations by the father, the Court makes no adverse finding of the father in this regard.
Section 60CC(3)(d) of the Act:
The Court is satisfied that the arrangements set out in the proposed orders will minimise any changes in the children circumstances and will promote the capacity of the children to spend time with both of their parents and their paternal grandparents.
Section 60CC(3)(e) of the Act:
The Court is satisfied that the proposed orders will minimise the practical difficulty and expense of the children spending time with each of their parents and communicating with them and will promote the children’s right to maintain personal relations and direct contact with each of the parents.
Section 60CC(3)(f) of the Act:
The Court is satisfied as to each of the children’s parents’ capacity to provide for the needs of the children, including the emotional and intellectual needs. Each parent impresses the Court as to their commitment to the children including any special needs.
Section 60CC(3)(g) of the Act:
The Court notes that the children are of a mixed Aboriginal and Country B background. The Court notes that the father has been willing to allow the children to accompany their mother on holidays to Country B. The Court is satisfied that the father will allow the children to experience their Country B culture and traditions and that the proposed Court orders will facilitate this taking place.
Section 60CC(3)(h) of the Act:
The Court notes that the children have an Aboriginal background. The orders proposed will allow the children to spend a significant amount of time with their father, who has indicated he proposes to ensure they are exposed to their Aboriginal heritage and culture.
Section 60CC(3)(i) of the Act:
The Court is satisfied that each of the parents has an appropriate attitude to the children, together with responsibilities of parenthood, demonstrated by the fact that each has been willing for the children to spend significant time with the other parent. The Court notes the concerns of the father, as regards to insuring the children have the best possible educational opportunities, together with the fact that he has now indicated to the Court that he is willing to stay in the current geographical location of his residence for the foreseeable future, so as to ensure there is minimal disruption to the children as a result of travel during contact.
Section 60CC(3)(j) of the Act:
The Court notes there has been one incident of family violence in 2014 that resulted in the father being charged with and pleading guilty to common assault. An apprehended domestic violence order was also made for a period of 12 months. No further criminal charges have been laid against the father or the mother and there has been no further apprehended domestic violence order applied for by the mother upon the expiry of the order granted in 2014.
The Court notes the allegations of behaviour by both parties that would amount to domestic violence, as well as allegations of coercive and controlling behaviour by the father. The Court is satisfied that the orders proposed, by minimising contact between the parties at changeover and setting in place a clear communication regime will minimise the potential for further domestic violence into the future. Further, the Court has made an order that each of the parents attend a Post Separation Parenting Course, which will hopefully educate them as to how they can communicate and act in a manner that will minimise the potential for conflict between them into the future.
Section 60(3)(k) of the Act:
See above.
Section 60(3)(l) of the Act:
The Court is satisfied that the proposed orders will not lead the likely institution of further proceedings in relation to the children. The proposed orders give clarity, certainty, but do require the parties to work together in relation to major decisions in relation to the children. It is considered that this is preferable to making an order for sole parental responsibility, to live with one of the parents.
Section 60CC(3)(m) of the Act:
The Court is not satisfied that there is any other factual circumstances that is relevant and has not been taken into account in in the consideration of the matter.

Matters for Determination

Given that the parties have made various concessions and agreed to ancillary orders, the Court is left to determine the following issues:
1.   Should the mother have sole parental responsibility for the children or the parties have shared parental responsibility?
2.   Should the children reside with either the father or the mother?
3.   Should the party with whom the children do not reside have contact in week two from Thursday after school or Friday after school until Saturday 11:00 am?

1 - Shared or sole parental responsibility

Section 61DA of the Act provides for a presumption of shared parental responsibility. The Court has found above, that the level of family violence is not such as to displace that presumption. The parties have been able to manage to share contact and the living arrangements of the children following Court orders and there is no reason to think that this cannot continue into the future. The children are still relatively young and many decisions will need to be made as to their future needs and upbringing. The Court is satisfied that shared parental responsibility is in the best interests of the children. It will allow both parents to have equal input into their children’s lives. The Court is also mindful of the particular cultural needs of the children, having both an Aboriginal and Country B background. Any orders must take account of this matter and promote the capacity of the children to experience their cultural heritage.

In coming to this conclusion, the Court has considered the relevant considerations under s 60CC(2) and s 60CC(3) of the Act, which have been set out above. The Court is satisfied that the various orders limiting the potential for conflict at changeover times, plus orders that the parties not make derogatory comments about each other and limit communication to a set means, will assist them in avoiding further family violence and disagreements. The Court has also taken account that both the parties will be required to attend a Keeping Contact Course. The Court notes that this conclusion of shared parental responsibility is in accordance with the Family Consultant’s recommendation.

2 – Should the children reside with the father or the mother

The children are still relatively young and have been residing with the mother since May 2018. The Court is satisfied that each of the children has a warm and loving relationship with both their father and mother. They are still too young for their views on where they would prefer to live to be taken into account. The children, as far as can be ascertained, have a good relationship with the father’s new partner, Ms H.
Counsel for the father submitted to the Court that as the father was not working, he would be available to spend more time with the children than the mother. Further, as the father had re-partnered, he would have additional assistance from Ms H in relation to the care of the children. The father also had indicated to the Court that he would continue to reside in the Suburb T area for the foreseeable future, so as to ensure that the children and in particular X, could maintain attendance at the same school.
Counsel for the mother noted that the children had been living with the mother since May 2018. They were still at an early stage of development. X is still only in the very early stages of primary school and Y is yet to commence school. It was submitted by Counsel for the mother that it would be a risk for them, at this stage, to change their primary place of residence, as well as introducing an unknown quantity to the Court, this being the involvement of Ms H.
As conceded by Counsel for the father, the issue is finely balanced. The Court notes that the children have spent extended periods of time with their father since they began living principally with the mother, without any apparent detriment.
Ms BB recommended the children lived with the mother as she appears to have been the primary carer for the majority of their lives. Further, the mother was able to speak positively about the father and his relationship with the children and may therefore, be more capable of supporting the children’s relationship with the other parent than is the father, who appeared unable to consider positive aspects of the mother’s relationship with the children.
The role of the Court is to determine what is in the best interests of the children. The Court is satisfied that the current arrangements, which allow for substantial and meaningful time with the father, appear to have been working to date. The Court concurs with Ms BB’s comments that the father appears more negative, as regards to the mother. The derogatory language the father used in text messages to the mother, is not supportive of a person who is prepared to put the children’s best interests well above his own.
While the Court is satisfied that the children would be well provided for and cared for, if they were to reside with either the mother or the father, taking into account Ms BB recommendations, together with the fact that the children appear well-settled with the current arrangements. The Court is of the view that it is in the children’s best interests, that the current arrangements are maintained and that they reside with the mother.

3 - Should the party with whom the children do not reside have contact in week two from Thursday after school or Friday after school until Saturday 11:00am?

The father, if the children do not to reside with him, wishes to have contact in the alternative week, from Thursday after school until Saturday morning at 11:00am. This would allow for an additional day each fortnight with the father. The problem with this proposal is that it would be disruptive to the schooling arrangements for X both now and Y in the future, in that they would spend one Thursday night per fortnight with the father.
Ms BB recommended that the children spend alternative weekends with the father from Friday after school until Monday morning. Ms BB stated it may be recommended that the children spend one night in the alternative week with the father, in order to reduce the time between visits with him and to assist in maintaining their close relationship. If this were to occur on the alternative Friday, until Saturday morning, this would reduce the impact on X’s schooling. The Court concurs with this recommendation. The Court notes that it is important that there be settled arrangements in place during the school week, in order to minimise disruption and routine. Both children are still relatively young and the need for a settled routine is important. The father will still have contact in the alternative week from Friday after school until Saturday at 11:00am. Ancillary orders have been agreed in regards to sporting events on the weekend and this will extend the period of time that the father will have with X and Y into the future.

I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:

Date: 15 May 2020

[2020] FCCA 1042

15 May 2020

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness