TIMBERLAKE & JUDD
[2019] FCCA 3532
•18 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TIMBERLAKE & JUDD | [2019] FCCA 3532 |
| Catchwords: FAMILY LAW – Parenting – high level of conflict between the parties and history of domestic violence – considerable distance between the parents’ residences – allegations of drug use, notably on the part of the Father – the Mother suffers significant mental health issues which are currently managed through medication and professional intervention – the Mother is supported both financially and emotionally by the Maternal Grandparents – Orders made for sole parental responsibility, the child to live with the Mother and Maternal Grandparents and spend graduated time with the Father subject to clean drug tests – no Order as to costs. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC(2); 60CC(3)(a)-(m), 65DAA |
| Cases cited: AMS v AIF (1999) CLR 160 Moose & Moose [2008] FLC 93-375 |
| Applicant: | MS TIMBERLAKE |
| Respondent: | MR JUDD |
| File Number: | CAC 1635 of 2017 |
| Judgment of: | Judge Neville |
| Hearing dates: | 15 & 16 May 2019 |
| Date of Last Submission: | 24 June 2019 |
| Delivered at: | Canberra |
| Delivered on: | 18 December 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Jeanine Lloyd & Associates |
| Solicitors for the Respondent: | Self-Represented |
| Solicitors for the Independent Children's Lawyer: | Legal Aid ACT |
ORDERS
All previous parenting Orders be discharged.
Subject to Order 3 of these Orders, the Applicant Mother have sole parental responsibility for the child [X] (born … 2016) (“the child”).
The Applicant Mother is to consult the Respondent Father regarding, and keep him properly informed of, all matters and decisions in relation to the major long-term issues (section 4 of the Family Law Act 1975) regarding the care of the child.
The child live with the Applicant Mother provided that:
(a)She remain living primarily with the maternal grandparents, Mr D and Ms C Timberlake until the child reaches the age of 8 years; and
(b)She follows all recommendations made by her treating health professionals in relation to her mental health diagnoses.
The child spend time with the Respondent Father as follows:
(a)On a supervised basis at the Supervision Centre B in Canberra on no less than one occasion per fortnight; and
(b)With the Respondent Father to meet all of the costs if either party elects to use the fee paying service.
To facilitate Order 5 above, both parties do all things necessary to undergo intake into Supervision Centre B including attending at intake interviews and each meeting the costs of their own intake interviews.
On production by the Respondent Father to the Applicant Mother of a clean/negative hair follicle test, the time spent by the child with the Respondent Father revert to the following:
(a)From 10:00am until 4:00pm each alternate Sunday;
(b)With changeovers to take place at the Town G near Canberra; and
(c)With the Respondent Father to inform the Applicant Mother in writing and prior to time commencing where he intends to take the child.
In relation to Order 7 above, the hair follicle test is to undertaken by the Respondent Father on the following basis:
(a)Using The Drug Detection Agency (TDDA) or such other agency as is agreed between the parties in writing;
(b)Ensuring that the taking of the hair sample is done under supervision, with production of identification and with a chain of custody that remains intact;
(c)At the expense of the Respondent Father; and
(d)With the Respondent Father to authorise the testing facility to release a copy of the results to the Applicant Mother.
On no more than two occasions per calendar year for the next 3 years, the Applicant Mother may request in writing via email to the Respondent Father’s current email address that he undertake a hair follicle test on the same conditions as set out in Order 8 above and with the hair sample to be collected within 10 days of the request being made by the Applicant Mother.
In the event the Respondent Father fails to undertake the test as requested by the Applicant Mother pursuant to Order 9 above, or he produces a dirty/positive result, any time spent by the child with the Respondent Father reverts immediately to supervised time as set out in Order 5 above.
In the event the Respondent Father’s time progresses to unsupervised time and any further issues occur at changeovers such that one party is concerned about the behavior of the other towards him or her or any agents conducting changeovers on behalf of him or her, that party is to:
(a)Provide the other with written notice of their concerns and their wish to invoke this order; and
(b)Forthwith both parties are to do all things necessary to do all things necessary to enrol into Supervision Centre B in Canberra with the parties to share the costs of changeovers equally.
In the event Order 11 above is invoked, changeovers are to be conducted using Supervision Centre B until and unless the parties otherwise agree in writing or further order of the Court is made.
Other than as is allowed by these Orders, the Respondent Father is restrained by injunction from removing or attempting to remove the child from the care of the Applicant Mother or any person or service (including schools and day cares) with whom the Applicant Mother places the child.
Upon the child turning 5 years of age, the parties do all things necessary to arrange and attend at a Family Dispute Resolution Conference to discuss the Father’s time with the child progressing.
All parties are restrained by injunction from making derogatory or inflammatory remarks about the other party or otherwise denigrating the other within earshot of the child, or allowing any other third party to do so.
Each party shall keep the other informed of:
(a)The name and contact details for the child’s doctors, health care and any other treatment providers;
(b)Any medical condition, significant illness, medical emergency or other significant health condition suffered by the child;
(c)Any school, educational facility or extra-curricular activity provider for the child; and
(d)The address at which the child will reside when in their care and a contact telephone number and each party shall notify the other party at least 14 days of any change to such details.
The Applicant Mother shall do all such things and sign all such documents so as to authorise the Respondent Father to:
(a)Receive all information from the child’s school to which parents are ordinarily entitled including but not limited to, their academic, sporting and social progress;
(b)Receive all information from the child’s school to which parents are ordinarily entitled as to events to which parents are entitled to attend to participate; and
(c)Receive any and all information to which parents are lawfully entitled from any doctor, hospital, therapist or other health professional who the child consults or by whom the child is treated.
The Respondent Father be permitted to attend, any school, pre-school, co-curricular and/or extra-curricular activities to which parents are normally invited.
The Orders herein are subject to any other agreement in writing between the parties.
IT IS NOTED that publication of this judgment under the pseudonym Timberlake & Judd is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 1635 of 2017
| MS TIMBERLAKE |
Applicant
And
| MR JUDD |
Respondent
REASONS FOR JUDGMENT
Introduction
In this matter, the Court must make Orders that are in 3 year old [X]’s best interests. This is in circumstances where on (a) the parties’ evidence, and (b) the evidence of the Family Consultant (Ms D), the matter can and should be characterised as a “high conflict case.” As such, the Family Consultant said that such conflict, in her view, contra-indicated that there should, at this stage, be any overnight time between [X] and her Father.
The Father, who is a tradesman by trade, runs his business and lives in western Sydney. The Mother, who is the primary carer of the child, lives with her parents just outside the Australian Capital Territory.
The Mother has a number of significant health issues, some formally diagnosed, others not, including depression, anxiety, and obsessive compulsive disorder. She also has a borderline personality disorder. She is not in paid employment and is dependent upon Centrelink benefits and the financial assistance of her parents.
There are significant allegations of domestic violence and drug abuse.
For the reasons that follow, generally speaking, the Orders proposed by the Independent Children’s Lawyer (“the ICL”) are, in my view, in [X]’s best interests. I say “generally speaking” because, in her oral evidence, the Mother confirmed that she is not concerned about the child’s safety in the Father’s care. The main issues in the proceeding relate to: the conflict between all the adults involved, the relative lack of parenting experience of the Father, and allegations of drug use by the Father.
Summarised, the ICL’s Orders sought provide for the Father to spend his time with [X] professionally supervised for a period of time until the Father provides relevant, clear drug screens. Thereafter, the Orders provide for the Father to spend time with [X] each alternate Sunday without supervision. There is also provision for the Father to undergo further drug testing. Importantly too, the Mother is to continue to live with her parents who provide her with a safe and supportive environment. The maternal Grandparents are a significant protective presence (and much more besides) to [X] in the light of the ongoing tensions and difficulties between her parents.
Factual overview
The ICL provided the following factual overview, which she described as “agreed facts.” While there was no formal ruling or acknowledgement that the listed facts were agreed, I do not understand there to be any fundamental disagreement with them. Save for a listing of the matter for final hearing, the ICL’s outline of “agreed facts”, which provides a helpful time-line and factual context, was as follows:
1) The parties met in October 2013, commenced a relationship in 2012, commenced living together in April 2013 and separated on a final basis on 14 June 2017.
2) There is one child of the relationship, [X] born … 2016.
3) Between March 2014 and January 2015 the parties did not live together.
4) Following separation the Father remained in the matrimonial home at Property E in Town F and the Mother and [X] moved to live with the Maternal Grandparents in Town G NSW. The parties have remained living in those premises.
5) The Mother commenced Federal Circuit Court proceedings on 6 September 2017 in relation to property settlement.
6) The Father withheld the child on 12 November 2017 and took her to Sydney.
7) The Mother filed an Application in a Case on 13 November 2017 seeking a Recovery Order, for the child to live with her and spend time with the Father.
8) A Recovery Order was made on 15 November 2017.
9) On 8 March 2018 the Father filed an Initiating Application in the Federal Circuit Court in Parramatta NSW seeking orders that the child spend each alternate weekend with him from Saturday to Sunday and for one week on 4 occasions per year.
10) On 6 April 2018, the Mother cross-applied in the FCC in Parramatta seeking the Father’s application be dismissed and the matter be transferred to Canberra.
11) On 4 May 2018, the matters were consolidated and listed in Canberra with the Mother as Applicant and the Father as Respondent.
Orders sought by the Applicant
The Orders sought by the Applicant Mother were contained in her Case Outline filed on 8th May 2019.[1] They were as follows:
[1] In her written submissions, the Mother adopted the Orders sought by the ICL and added only a few extra matters.
MINUTES OF ORDERS SOUGHT BY THE APPLICANT MOTHER
1) That the Applicant Mother have sole parental responsibility for the child [X] born on …2016 (“the child”).
2) That the child live with the Applicant Mother.
3) That the child spend time and communicate with the Respondent Father as follows:
a)Until she attains the age of four years old (… 2020):
a.From 10:00am until 3:30pm each alternate Sunday in Canberra,
b.By Skype on Wednesdays between 5:00pm and 5:30pm.
b)Until she attains the age of 6 years old as per 3.1 above and on one occasion per month an additional Saturday visit on the preceding Saturday to a scheduled Sunday visit from 10:00am to 3:30pm in Canberra.
c)Upon [X] attaining the age of 6 years old:
a.From 10:00am until 3:30pm each alternate Sunday in Canberra,
b.Once a month to coincide with the fortnightly Sunday visits, and from 10:00am until 3:30pm on the Saturday in Canberra,
c.Once every three months to coincide with fortnightly visits, from 4:00pm Friday until 3:00pm Saturday, to be spent at the Father’s residence,
d.During school holidays for 7 days as agreed on two occasions per year, provided the Father shall provide the Mother with 2 months’ notice in writing, and
e.Skype calls between 5:00pm and 5:30pm on Wednesdays.
d)Upon [X] attaining the age of 8 years, the parties shall take into account [X]’s wishes concerning the time she spends with her Father.
e)Such further or other times as agreed in writing by the parties.
f)Changeovers shall occur at the Town G near Canberra, and once overnight visits occur from 24th May 2022, the return handover shall occur at the Father’s residence on the Sunday.
4) That the Father undergo a hair follicle drug test within 14 days of being requested to do so by the Mother, and provide the results to the Mother on two occasions per year as requested by the Mother within 14 days.
5) That once the Father has provided four clean hair follicle consecutive drug tests to the Mother as above, he shall no longer be required to undergo drug testing.
6) That the Father forthwith enrol in an Anger Management Course and provide evidence of his attendance and completion of the course upon receiving his certificate within 7 days to the Mother.
7) That neither party consume any illicit or non-prescribed drugs whilst caring for the child.
8) That neither party denigrate the other party or their family members in the presence or hearing of the child or permit any other person to do so.
9) That the Father enrol and complete a parenting course and provide evidence of his attendance and completion of the course within 7 days of receiving his certificate.
10) That neither party permit the child to be exposed to any conflict involving her parents or other family members and that the parents do all acts and things necessary to ensure that when [X] is being transitioned between her carers at changeovers that the changeovers are conflict free and peaceful.
11) That each parent keep the other informed and updated with his or her contact details.
12) That all text messages between the parents shall be polite and business like and be restricted to matters directly relevant to the child’s arrangements, health, welfare and development.
13) That until the child attains the age of 6 years old, the Father provide a short note to the Mother or the child’s maternal grandparents on changeover as to where he intends to spend time with the child and activities undertaken.
14) That within 21 days the Father do all acts and things necessary for a passport for the child to be issued in the name of the child:
a)That the passport be held by the Mother,
b)That the Mother be permitted to take the child outside of the jurisdiction of the Commonwealth of Australia for a period of up to 4 weeks per year, provided that she give 28 days’ notice in writing to the Father and provide proof of the return pre-paid airfare of the child to return to Australia.
c)During the time the child is outside of Australia, the Father’s time with the child is suspended.
Orders sought by the Respondent
The Orders sought by the Respondent Father were contained in his Case Outline filed in Court on 15th May 2019. They were as follows:
Minute Orders Sought
1) That the parties share equal parental responsibilities for the child of [X] … 2016
2) That the child live with the applicant Mother
3) That [X] spend time with her Father as follows:
a)Commencing June 2019 on a dual fortnightly rotating cycle; that being on a fortnight 1 from 10am to 3:30pm Saturday and 10am to 3:30pm Sunday, and on a fortnight 2 from 10am Saturday to 3:30pm Saturday
b)Commencing October 2019 each alternate weekend from 10am to 3:30 pm Saturday and 10am to 3pm Sunday
c)Commencing February 2020 a dual fortnightly rotating cycle that being on fortnight 1 from 10am Saturday until 3pm Sunday and in ther Canberra region and on fortnight 2 from 10am to 3:30pm Saturday and 10am Sunday to 3pm Sunday
d)Commencing June 2020 each alternate weekend from 10am Saturday to 3pm Sunday in the Canberra region
e)Commencing October 2020 on a dual fortnightly rotating cycle; that being on fortnight 1 from 12pm Saturday to 5pm on Sunday in the Canberra region and on fortnight 2 from 12pm Saturday to 5pm Sunday
f)Commencing January 2021 each alternate weekend from 12pm Saturday until 5pm Sunday
4) For the purpose of changeover that until the child commences overnight time with the father in Sydney the parties will collect and deliver the child at Town G at the commencement of conclusion of time. Once the child commences spending time with her father at his residence in Sydney then the parties will collect and deliver the child to and from the McDonalds at Town G at the commencement and conclusion of time
5) The father undergo a fortnightly urinalysis from may 16th 2019 till September 16th 2019
6) Orders also seeking referring to the Fathers amended response Point4, point 6, point 7, point 8, point 9 and point 10.
Orders sought by the Independent Children’s Lawyer
The ICL’s Minute of Orders Sought, which was filed in Court on 15th May 2019, was as follows:
1) That the Applicant Mother have sole have parental responsibility for the child [X] born … 2016 (‘the child’).
2) That the child live with the Applicant Mother provided that:
a) She remain living primarily with the maternal grandparents, Mr D and Ms C Timberlake until the child reaches the age of 8 years; and
b) She follows all recommendations made by her treating health professionals in relation to her mental health diagnoses.
3) That the child spend time with the Respondent Father as follows:
a) On a supervised basis at the Supervision Centre B in Canberra on no less than one occasion per fortnight; and
b) With the Respondent Father to meet all of the costs if either party elects to use the fee paying service.
4) To facilitate Order 3 above, both parties do all things necessary to undergo intake into the Supervision Centre B including attending at intake interviews and each meeting the costs of their own intake interviews.
5) That on production by the Respondent Father to the Applicant Mother of a clean/negative hair follicle test, the time spent by the child with the Respondent Father revert to the following:
a) From 10:00am until 3:30pm each alternate Sunday;
b) With changeovers to take place at the Town G near Canberra; and
c) With the Respondent Father to inform the Applicant Mother in writing and prior to time commencing where he intends to take the child.
6) That in relation to Order 5 above, the hair follicle test is to undertaken by the Respondent Father on the following basis:
a) Using The Drug Detection Agency (TDDA) or such other agency as is agreed between the parties in writing;
b) Ensuring that the taking of the hair sample is done under supervision, with production of identification and with a chain of custody that remains intact;
c) At the expense of the Respondent Father; and
d) With the Respondent Father to authorise the testing facility to release a copy of the results to the Applicant Mother.
7) That on no more than two occasions per calendar year, the Applicant Mother may request in writing via email to the Respondent Father’s current email address that he undertake a hair follicle test on the same conditions as set out in Order 7 above and with the hair sample to be collected within 10 days of the request being made by the Applicant Mother.
8) That in the event the Respondent Father fails to undertake the test as requested by the Applicant Mother pursuant to Order 7 above, or he produces a dirty/positive result, any time spent by the child with the Respondent Father reverts immediately to supervised time as set out in Order 3 above.
9) That in the event the Respondent Father’s time progresses to unsupervised time and any further issues occur at changeovers such that one party is concerned about the behaviour of the other towards him or her or any agents conducting changeovers on behalf of him or her, that party is to:
a) Provide the other with written notice of their concerns and their wish to invoke this order; and
b) Forthwith both parties are to do all things necessary to do all things necessary to enrol into Supervision Centre B in Canberra with the parties to share the costs of changeovers equally.
10) That in the event order 8 above is invoked, changeovers are to be conducted using Supervision Centre B until and unless the parties otherwise agree in writing or further order of the Court is made.
11) That other than as is allowed by these Orders, the Respondent Father is restrained by injunction from removing or attempting to remove the child from the care of the Applicant Mother or any person or service (including schools and day cares) with whom the Applicant Mother places the child.
12) That upon the child turning 5 years of age, the parties do all things necessary to arrange and attend at a Family Dispute Resolution Conference to discuss the Father’s time with the child progressing.
13) That all parties are restrained by injunction from making derogatory or inflammatory remarks about the other party or otherwise denigrating the other within earshot of the child, or allowing any other third party to do so.
14) That each party shall keep the other informed of:
a) The name and contact details for the child’s doctors, health care and any other treatment providers;
b) Any medical condition, significant illness, medical emergency or other significant health condition suffered by the child;
c) Any school, educational facility or extra-curricular activity provider for the child; and
d) The address at which the child will reside when in their care and a contact telephone number and each party shall notify the other party at least 14 days of any change to such details.
15) That the Applicant Mother shall do all such things and sign all such documents so as to authorise the Respondent Father to:
a) Receive all information from the child’s school to which parents are ordinarily entitled including but not limited to, their academic, sporting and social progress;
b) Receive all information from the child’s school to which parents are ordinarily entitled as to events to which parents are entitled to attend to participate; and
c) Receive any and all information to which parents are lawfully entitled from any doctor, hospital, therapist or other health professional who the child consults or by whom the child is treated.
The Oral Evidence of the Mother
It may be noted at the outset that the Mother presented in Court and during her oral evidence as a young Mother who is genuinely scared of the Father, who, for all of his genuine courtesy and restraint in Court (and his excellent organisation of documents and the like as a self-represented litigant), has and is an imposing presence.
Otherwise, the Mother’s relatively brief evidence was as follows.
The Father questioned the Mother about the evidence in her Affidavit stating she was the sole carer for the child, [X]. The Mother said that the Father did help with [X]’s care but that he was working 6 days a week at the time, so most of the caring responsibilities fell on her.
The Mother said that lately, “Facetime” calls with the Father had been “better”. She said that while [X] participates as best she can, sometimes she would run away and the call would not be able to go ahead. A further observation from the Mother was that changeovers worked better if they were not conducted by the parties. The Court may take “judicial notice” of this self-evident proposition.
In response to questions from the Father, the Mother said that she believes that the Father currently uses cocaine, and that he did so while in a relationship. The Father put to the Mother that they both used cocaine and that there was video evidence of this. The Mother agreed that this had happened but said that she was pressured by the Father to use cocaine. The Mother said she would be content to undergo drug testing to confirm she does not use drugs now.
The Father asked the Mother about her trips to Sydney with the child, in particular whether he would be able to spend some time in Sydney with [X] during these visits. The Mother said that she has some friends in Sydney but she does not visit them often. When she does visit, she is able to borrow one of the cars owned by her parents to drive there.
The Mother’s attitude towards the Father was somewhat critical and negative. She said that they would never have a good relationship, and that the Father put himself before [X]. She said that there was some chance sometime in the future they would be able to have a “business-like” co-parenting relationship. The Mother said that her mental health had been stable since separation and that her past offences (e.g. for theft) had occurred when she had not been stable.
The Mother said she did not know whether the Father was a good parent or not. She said that she did not hold concerns about the safety of the child in the Father’s care, but that she was worried when she did not know where [X] was when she was spending time with the Father. Ultimately, the Mother said that she wanted the Father and [X] to have a good relationship.
In response to questions from the Independent Children’s Lawyer (“the ICL”), the Mother said that she has been diagnosed with Borderline Personality Disorder (“BPD”), depression and anxiety. She said she also had traits of OCD but had not received a formal diagnosis for this disorder.
The Mother says that she takes her medication as prescribed and that she intends to undertake a Dialectical Behaviour Therapy (“DBT”) program, which is anticipated to take approximately one year. She said that she has seen a psychologist in Canberra around 12 times for therapy, but that this therapy would be suspended until she completes the DBT program.
The Mother said that she would continue to comply with the directions of her treating mental health professionals. She said that she has always been on anti-depressants of some description, including during the relationship with the Father. She said that her mental health has significantly improved now that she is in a stable home environment, is not under any financial stress, and has support from her parents and a psychologist.
The ICL questioned the Mother about her past offences. The ICL also questioned the Mother about her various names or “alias”. The Mother denied that these names were “alias”. The Mother said that she changed her name legally to “[Ms Timberlake]” when she first moved to Sydney because she was living in the Western suburbs and dating a man with a (omitted) background, and she wanted to “fit in”. She committed an offence in 2017 under that name.
She said that she had since changed her name back to Ms Timberlake, but that she still responds to the name “[Ms Timberlake]” as that is what she was called for a long time.
The Mother expressed some concern about the Father’s friendships and affiliations. She said that some of the Father’s friends have a lot of money and it is not clear how they have obtained those funds. The Mother also alleges that the Father takes drugs with one of his friends, Mr H.
The Mother said that another one of the Father’s friends has spent time in jail for drug offences. The Mother says that she remains friends with this man’s wife, and that he has since been released from jail. She believes he has reformed.
The Mother said that the Father shaved his body hair during the relationship. The Mother said she believed that the Father had a full beard on 28th April 2019 and that he had shaved his beard after the request from the ICL for hair follicle testing. The Father put it to the Mother that this was not true and that he has photos of his beard at that time.
The Mother confirmed that she is very reliant on her parents, both emotionally and financially. If she had a problem, the Mother said that she would go to her Mother for support and assistance. She believes that her parents would take proactive steps to take care of [X] if her mental health was not stable.
The Mother says that she has taken steps to clear her iPhone after she found out that the Father had been tracking her. She then bought a new phone and has turned off her location services.
The ICL asked the Mother questions in relation to the Mother’s financial circumstances, which the ICL described as “somewhat dire”. The Mother currently does not work and her parents currently provide her with substantial financial support. The Mother said she has a current debt to Centrelink of $38,000 which she is paying off at approximately $35 per fortnight. She has two other debts amounting to approximately $5,500. The Father has applied for a review of his outstanding Child Support payments.
The Mother said that she received $160,000 from the parties’ property settlement and that around $60,000 went to lawyers’ fees. She holds $100,000 in a bank account which she intends to use to purchase a home in the future. She says that the Father also has a debt to the Mother of around $3,000.
The Mother said that her parents currently provide her with significant financial support and that they were willing to continue to do so for the foreseeable future.
The Oral Evidence of the Maternal Grandmother
The Maternal Grandmother’s oral evidence was as follows:
In response to questions from the Father, the Maternal Grandmother said that she continues to hold concerns about changeovers, particular as the Father often records the changeovers on his mobile phone and she feels that this is confrontational. The Maternal Grandmother said that she recorded changeover on Mother’s Day 2018, and acknowledged that this could also have been perceived as confrontational. She said that [X] was not aware that she had been recording.
The Maternal Grandmother was asked whether she believed that [X] had a good relationship with her Father; she said that they did have a good relationship, but that [X] was sometimes reluctant to spend time with the Father.
There was general agreement that a major challenge for these parties is changeover, which is usually at Town G.
When the Father asked what would make changeovers easier, she said that it would assist if [X] had an opportunity to prepare for the time with her Father, including packing her own bag and by knowing in advance the activities she is going to do with the Father and having those activities explained to her. This would make [X] feel more at ease. Currently, she does not always know what activities the Father has planned. She also said that [X] does not like being photographed or filmed, and that she does not like it when the Father films changeover.
The Maternal Grandmother confirmed that she was aware of the Mother’s mental health problems, being BPD, anxiety and depression. She said that the Mother takes her medication as prescribed.
The Maternal Grandmother said that she always attends the Mother’s medical appointments with her and that she would be content to continue to support the Mother in this way, including covering all costs associated with the Mother’s mental health management. She was of the view that the Mother’s mental health would not be a risk in the future as there is a clear plan in place.
The Maternal Grandmother confirmed that she was prepared for the Mother and [X] to live with her and the paternal Grandfather indefinitely, and that they would continue to provide financial and practical support.
The ICL asked the Maternal Grandmother if she would be willing to intervene and remove [X] if the Mother’s mental health were to deteriorate, and the Maternal Grandmother said that she would. This would happen even if the Mother were to protest, she said. The Maternal Grandmother was confident that she would be able to identify if the Mother had stopped taking her medication. Overall, the Maternal Grandmother said that she did not hold concerns about the Mother’s capacity to parent [X] while she was medicated.
The Maternal Grandmother said that during the relationship with the Father, the Mother’s anxiety was heightened.
The ICL noted that the Mother’s offending pre-dated the relationship with the Father, and asked the Maternal Grandmother what, in her view, were the other “triggers” to the Mother’s offending. The Maternal Grandmother said that the Mother’s earlier offending was related to her anxiety and stress stemming from high school. The Mother had left home when she was 19 to move to Sydney, and had been in financial stress. The Maternal Grandmother said that the Mother had fallen in with the “wrong crowd” in Sydney.
The Maternal Grandmother acknowledged that the Mother’s offending had also occurred while the Mother had moved back home to live with the maternal Grandparents post-separation, and said that the Mother had been stressed at this time and had been under financial pressure. The parties had been negotiating a property settlement and the Mother had been trying to take back the belongings she had left at the parties’ former home.
The Oral Evidence of the Maternal Grandfather
The Maternal Grandfather’s oral evidence was as follows.
He said that he was aware of the Mother’s ongoing mental health problems. He said that he would know if the Mother were to stop taking her medication, although he said that his Wife, the Maternal Grandmother, would be more attuned to the Mother’s mental health state. He confirmed that he would be willing to continue to meet all expenses associated with the Mother’s mental health care. He said that he believed the Mother’s mental health had improved significantly and he was optimistic that the Mother would be able to live independently in the future.
The Maternal Grandfather said that he would be prepared to have the Mother and [X] live with him and the Maternal Grandmother indefinitely and to continue to provide her with financial support.
The Maternal Grandfather denied saying to the Father that if the Father did not agreed to a property settlement, he would not see [X] again. He conceded that he had made a comment at changeover on 19th January 2018 that was intended to provoke the Father.
The Maternal Grandfather said that he would like the parties to have a civil relationship in the future, however he was somewhat hesitant about whether or not this would be possible.
The Oral Evidence of the Father
The Father’s evidence, summarised, was as follows.
The Father said that he did not intend to be provocative by filming at changeovers, rather that he felt it was necessary to film to protect himself against any false allegations. He said that, regarding the incident at changeover on Mother’s Day 2018, he did film it but was firm in his view that [X] could not see that was what he was doing. He said he now understood that it was not helpful and could be perceived as provocative to film changeovers. If changeovers were to occur at a professional contact centre he said he would not film.
When asked whether the Father would consider moving closer to the Mother, for example to Canberra, to facilitate time with the child, he said that he would not consider this. The Father said he has family in Sydney and that he has spent 10 years establishing his business (as a tradesman) in Sydney. If he were to move anywhere, he could move to Suburb I in Sydney, which would be somewhat closer to the Mother’s residence.
The ICL asked the Father various questions about his alleged non-compliance with her request for hair follicle testing. The she sent a request to the Father on 28th April 2019 for him to undertake hair follicle testing, however he had not been able to fulfil such a request as he does not have hair anywhere on his body which is long enough to test. There were some questions raised about whether or not the Father had purposely attempted to evade testing. He had trimmed his beard after the request was made, but that this was only because he believed the hair on his head was longer than the hair on his beard, and that a sample would be able to be obtained.
When asked by the solicitor for the Mother whether he believed that the parents’ relationship had been dysfunctional, he said that he did not think it had been. The Mother’s solicitor put it to the Father that there had been serious family violence during the relationship. For example, the Mother alleged that the Father had put his hands around her throat and threatened to choke her. She also alleged that the Father hit her in the face on 24th May 2017. Father denied these allegations.
The Father said that during the relationship, money had not been an issue. He said that if the Mother ever needed money, he would give it to her. The Father agreed that the parties had explosive arguments but said that they were verbal not physical. The Father said that he would film the arguments because when he tried to walk away, the Mother would follow him.
The Father was asked about an incident when the Mother was at Event J in Sydney with the child. A friend of the Father had seen the Mother and sent the Father a text message. The Father agreed that upon receipt of this information, he had sent a message to the Mother saying “nice Balenciaga shoes” and that this was not intended to frighten her. He said he did this because he was upset that he had not been offered an opportunity to see [X] while she was in Sydney. He said that he would not do this again.
He said that for a period he had tracked the Mother using her mobile phone. He said that he did this because the Mother had been bringing items into the house including jewellery and he believed these items were stolen. He said the Mother had been leaving work early and getting parking fines during the day and he thought she had been lying to him about where she was. When questioned by the ICL about this behaviour, he conceded that it could be seen as controlling and that it was a mistake.
The Father was asked questions from the solicitor for the Mother about the events immediately after separation. He said that he did not “kick out the Mother”, but that rather, they packed their bags and left. He said that at that time, he believed it was most appropriate for the Mother and [X] should both live with the Mother’s family. The Father denied the Mother’s characterisation of the events and said that it was not difficult for her to collect her personal effects.
The solicitor for the Mother asked the Father about the events of 13th January 2018 when the Mother sent removalists to collect her remaining belongings. The Father said that the removalists were not able to get access to the driveway because he did not have the keys to open the gate and move the car and sporting equipment. He said that he did not deliberately put the vehicles in the driveway to be obstructive or difficult.
The Father said he did not have the keys because his house had been broken into and valuable items had been stolen including money and the keys. This break-in occurred shortly after separation, on 26th December 2017. The Father believes that it was the Mother who broke into his house. The Mother denied this allegation and has never been charged with this offence.
The Father said that he had put the Mother’s belongings on the back deck for her to collect some time earlier. He said that he had allowed the removalists access to the deck through the house. He conceded that he had called the removalist a “junkie pom” and that he had refused to allow the Maternal Grandmother entry to the house. He denied saying to the Maternal Grandmother that she had herpes because her husband had an affair.
The Father was asked why he had not allowed the removalists to take [X]’s cot. He said that he wanted [X] to have a cot at his house. He said that, looking back on it, this was unhelpful and if he could have done something differently he would have given the cot to the Mother for her to use at the Maternal Grandparents’ home.
The Father was questioned about the occasion where he retained the child overnight without the consent of the Mother. He accepted that this action was wrong and silly, and that it would have caused the Mother significant stress.
In relation to child support, the Father said that he had been assessed by the Child Support Agency. He had objected to the assessment approximately one week earlier and while his objection was under review he had reduced the payments to $20 per week. He agreed that this payment was not adequate. He said he was not sure what he would be required to pay but that he would accept the calculated rate as reasonable and pay the Mother Child Support as assessed.
In re-examination, the ICL questioned the Father at length regarding her request for him to undergo hair follicle testing prior to the Final Hearing. The Father said he had read and understood the requirements regarding the testing. He said there had been a short delay in arranging the testing. He had called the testing clinic and that he was not able to attend the first appointment that was suggested, however he booked in the second available timeslot. He said that he had trimmed his beard prior to undergoing testing because he believed his head hair was longer than his beard, and that he would therefore be able to take a sample from his head. The Father confirmed that he usually shaves his body hair, but said that he had not done so between the date of the request for hair follicle testing and the date of the Final Hearing.
The Father confirmed that he would undergo hair follicle testing at the earliest opportunity and would not shave or cut his hair in the meantime. He offered to take photos every week to show that his hair was growing. In the meantime, the Father agreed to undergo urinalysis testing.
The Father said that he would attend a post-separation parenting course. He was also open to undertaking an anger management course and said that learning new things would make him a better person. Looking forward, the Father said his suggestion for better relationships would be a safe place to conduct changeovers.
He agreed with the evidence that he had punched holes in the door. He said that he was angry because the Mother had told him that she wished she was in a relationship with her ex-boyfriend. He said that this occasion was not evidence of a pattern of behaviour and that he learned a lot from that day.
The Father was questioned about his Child Support payments to the Mother. Father confirmed that there was a current child support debt but that he had appealed this decision and was awaiting the outcome of the appeal. He confirmed that he would pay child support as assessed. He also confirmed that he would like [X] to learn to swim and would pay for those lessons, and other activities for [X].
The Father accepted that he had criticised the Mother regarding her mental health in the early stages of separation.
In relation to drug use, the Father stated that the last time he had consumed cocaine was prior to [X]’s birth. He had obtained the cocaine from a friend, and confirmed that this person was not someone who [X] would come into contact with. The last time he had consumed cannabis was a few weeks prior. He had consumed Tramadol the last time he had a prescription for that medication, which was related to pain-management for a shoulder injury.
The Father gave evidence that he does not use steroids and had not used steroids since prior to his relationship with the Mother. He accepted that the Maternal Grandmother had seen steroids at his Suburb K home, however he said that they were not his, and that he had obtained them from a friend and was holding them for another friend. He said he would not bring [X] into contact with these “friends”.
I should mention here that, especially as a self-represented litigant, the Father impressed as well-organised and respectful (even when it was difficult during the hearing to hear certain evidence, or evidence with which he disagreed). He tried earnestly to remain “child-focussed”. One of his biggest difficulties – which is not a criticism – is that he does not have a significant amount of experience in the day-to-day care of a young child. I have no doubt that he loves [X] immensely. He simply needs to allow some time, for his own capacities to develop and mellow, and for him (and the other adults in [X]’s life) to work out what is best and the least confrontational in their engagements with each other.
The Family Report
The Family Report of Ms D, dated 18th April 2019, became Exhibit B.
I note that at pars.84 – 97, Ms D outlined competing allegations by the parties regarding, child safety and wellbeing, alcohol and substance abuse, and the Mother’s mental health. Subject to the oral evidence of the parties, I need not, and will not, set out those sections from the Family Report.
Pars.98 – 102 outline allegations regarding family violence. Those paragraphs were as follows:
[98] Ms Timberlake and Mr Judd report that the police attended their home when [X] was approximately one year old. Ms Timberlake says that she called the police because Mr Judd was allegedly standing over her yelling. Mr Judd denies the allegation and alleges that Ms Timberlake was yelling at him at the time and later broke a door. Ms Timberlake admits yelling at Mr Judd during the dispute, but denies breaking a door.
[99] Ms Timberlake alleges that, during the parties’ relationship, Mr Judd sporadically yelled at her when he was “in a mood.” Ms Timberlake alleges that there were 4-5 occasions during the parties relationship, when Mr Judd pushed her, one of which she alleges occurred after [X]’s birth when she was holding [X]. Ms Timberlake alleges that, twice, Mr Judd choked her whilst they were a couple which both occurred before [X]’s birth. Ms Timberlake alleges when the parties were a couple, Mr Judd was financially controlling. Mr Judd denies Ms Timberlake’s allegations.
[100] Post-separation, Ms Timberlake alleges that Mr Judd has frequently yelled verbal abuse and been aggressive towards her and her family. Ms Timberlake alleges that Mr Judd calls her highly offensive names and belittles her including in [X]’s presence. Ms Timberlake alleges that Mr Judd has said “Everyone knows what I’m doing and when I’m doing it [referring his associates watching her].” Ms Timberlake says she is concerned that Mr Judd is stalking her and says that his alleged behaviour makes her feel like “shit.” Mr Judd denies Ms Timberlake’s allegations.
[101] Mr Judd asserts that, up and until the birth of [X], the parties generally enjoyed a usual couple type relationship, other than Ms Timberlake allegedly pressurising him to have sex so that they could begin a family. Ms Timberlake denies pressurising Mr Judd to have sex, and says that she was cautious about becoming pregnant because Mr Judd allegedly reacted with “extreme anger” and placed “immense pressure” on her to have an abortion when she became pregnant in 2013. Mr Judd confirms that Ms Timberlake was pregnant in 2013, but denies pressurising her to have an abortion.
[102] Mr Judd alleges that, following [X]’s birth, Ms Timberlake yelled verbal abuse at him 1-2 times a month and degraded him by saying that he was “not good enough”. Mr Judd alleges that, in the final months of the parties’ relationship, Ms Timberlake was violent towards him by scratching him and hitting him across the face. Mr Judd alleges that, post-separation, Ms Timberlake has stalked him and, on “numerous” occasions broken into his property. Ms Timberlake denies Mr Judd’s allegations.
A slightly more detailed picture of the allegations of violence are set out in records produced by NSW Police pursuant to a subpoena. Those records became Exhibit A.
Regarding the communication and co-parenting relationship, Ms D noted the following, at pars.103 – 106:
[103] Ms Timberlake and Mr Judd appear to a have a limited effective co-parenting relationship.
[104] Ms Timberlake rates the parties’ communication as 1/10, and states this is because “We can’t communicate, he verbally abuses me, he doesn’t respect me as a mother. It’s all about winning, or being difficult.”
[105] Mr Judd rates the parties’ communication as 6.5/10, and states this is because he considers their communication to generally be respectful.
[106] Mr Judd alleges that Ms Timberlake and the maternal grandparents are making vexatious allegations against him. Ms Timberlake denies Mr Judd’s allegations.
From my observations of each and all of the persons just referred to, I have little doubt that, while the Father is genuinely well intentioned, his frustrations (real and apparent) may, from time to time, get the better of him in his dealings with the Mother and her family. The Mother and her parents are generally guarded against or towards the Father. The Father clearly has a good and close, but still developing, relationship with [X]. He is patently frustrated at what he perceives as the severe and unjustified limitations on his time with his daughter.
In certain respects, his feelings might be justified, up to a point. However, I have genuine doubts about the Father’s impulse control and his sense of grievance towards the Mother and her family. The constraints (in any and all respects) put on his time with [X], cause him to strain at, and react very strongly to, them. While a natural, human reaction, restraint is nonetheless a critical parenting virtue.
Pars.109 – 113 detail [X]’s general and genuine interactions with her Father, as follows. I draw particular attention to the sections which I have emphasised in bold:
[109] The observation began with the writer meeting [X] and Mr Judd in the waiting area where they were sat with Ms Timberlake and the maternal grandfather. [X] appeared relaxed in the company of the three adults and was observed to be playing with a ‘Peppa Pig’ handbag with Mr Judd. However, [X] did not seem keen on participating in an observation. For the purpose of encouraging [X] to participate in the observation with the father, the writer pushed [X]’s toy pram that [X] had brought with her to the assessment, in the direction of the observation room, [X] then followed the writer with Mr Judd.
[110] [X] and Mr Judd engaged in a range of activities in the playroom including, playing with the toy kitchen set, playing with the dolls’ house and playing with the toy cars. Mr Judd demonstrated a keen interest in [X]’s play activities. Mr Judd provided [X] with learning opportunities, such as helping her to develop her play ideas and assisting her to name the toy fruit and vegetables.
[111] [X] and Mr Judd seemed largely relaxed in the company of one another and there were smiles shared between them. On one occasion, Mr Judd kissed [X] on the cheek and she said, “Stop it. Go away.” However, another time, towards the end of the observation when Mr Judd asked [X] to kiss him, she willingly obliged.
[112] At least twice, Mr Judd appeared to try and influence [X]’s view of their time together. For example, once Mr Judd said to [X], “Are you having fun?” and then answered the question himself by saying “Yeah.” [X] nodded her head after Mr Judd made these comments. Another time Mr Judd talked to [X] about how she loves him and said, “That’s good.”
[113] This observation suggests that within the observational context that Mr Judd and [X] generally have a positive relationship. However, it appears sometimes [X] may find Mr Judd’s physical affection towards her overbearing. It also suggests that Mr Judd might be trying to influence [X]’s view of him.
I need not record here the detail of the observations of [X] with her Mother and the maternal Grandparents. It is sufficient to note that, at par.116, the Mother continued to appear or present as “anxious” with an “ongoing slight tremor in her voice”, and at par.122 to the effect that there were no significant concerns about [X]’s relationship with her Mother or her Grandparents.
The “Evaluation” section of Ms D’s Report was from pars.123 – 139. I set out those paragraphs below with my emphasis added:
[123] This assessment considers the future living and time-spending arrangements for [X], aged 2 years.
[124] On the day of the assessment [X] presented as generally enjoying a positive relationship with both her parents and the maternal grandparents. Overall, the observations suggest that [X] has a slightly stronger bond with Ms Timberlake and the maternal grandparents than with Mr Judd, insofar as there was more positive interaction between [X] and the maternal family, compared to [X] and Mr Judd. This is perhaps unsurprising given that [X] spends significantly more time with Ms Timberlake and the maternal grandparents than Mr Judd.
[125] The current parenting arrangements, whereby [X] lives with Ms Timberlake and spends 5.5 hours with Mr Judd once a fortnight arguably makes it difficult for [X] to develop and maintain a meaningful relationship with him. Whilst Mr Judd asserts there are no major problems at changeover, Ms Timberlake and the maternal grandparents allege that there have been multiple occasions when Mr Judd has been aggressive. If Ms Timberlake and the maternal grandparents’ allegations are accurate, the current arrangements would seem to place [X] at the centre of conflict between the maternal family and Mr Judd. If [X] is subjected to witnessing ongoing conflict, this is likely to be emotionally harmful for her and could result in her being emotionally vulnerable.
[126] Ms Timberlake alleges aggressive behaviour by Mr Judd, including, him choking her, him standing over her yelling and stalking. Mr Judd denies Ms Timberlake’s allegations. Mr Judd alleges occasional aggression by Ms Timberlake. Ms Timberlake largely denies Mr Judd’s allegations, other than admitting she once yelled at him. Aside from Ms Timberlake’s admission, there appears to be a lack of information to support Mr Judd’s allegations. Comparatively, information gathered from maternal grandparents indicate it might the more probable that Mr Judd has been aggressive.
[127] If the Court substantiates Ms Timberlake and the maternal grandparents’ allegations of aggression, then it is questionable how safe [X] would be in Mr Judd’s care. If Mr Judd is unable to control his temper, [X], might be at risk of being subjected to and witnessing aggression whilst in his care. The risk of harm to [X] may increase as she matures and asserts her individuality and challenges her parents’ authority, which is developmentally appropriate. Another risk is that [X] may learn inappropriate behaviour for dealing with interpersonal conflict, and this may lead to her assuming that aggression is an appropriate response.
[128] Ms Timberlake and the maternal grandparents allege that Mr Judd denigrates Ms Timberlake in [X]’s presence. Mr Judd denies these allegations. If, as the maternal family allege, Mr Judd has belittled Ms Timberlake in [X]’s presence, this may have been detrimental for [X] making sense of her identity and damaged [X]’s relationship with him.
[129] Mr Judd alleges that Ms Timberlake would struggle to parent [X] if she did not live with the maternal grandparents. Ms Timberlake and the maternal grandparents assert that Ms Timberlake has the capacity to care for [X] independently. This assessment suggests that Ms Timberlake receives significant support from the maternal grandparents caring for [X]. It is also noted that Ms Timberlake’s capacity to independently care for [X] is untested. Therefore, Mr Judd’s allegation, that Ms Timberlake would struggle to be meet the needs of [X] if she did not live with them, might have some merit.
[130] Ms Timberlake and the maternal grandparents’ allege that, on occasions, Mr Judd unnecessarily prolongs changeover and refuses to allow [X] to take home toys that he has bought for her. The maternal grandparents state that Mr Judd’s alleged behaviour at times causes [X] distress. Mr Judd denies the allegations. If the allegations are substantiated, this may indicate that Mr Judd lacks insight into [X]’s needs.
[131] Ms Timberlake alleges that Mr Judd uses cocaine and steroids. Mr Judd denies the allegations, therefore this will be a matter for evidence. If Mr Judd has, or was to be under the influence of cocaine or steroids whilst caring for [X], this may compromise his ability to respond sensitively to [X]’s needs.
[132] Ms Timberlake has depression and BPD and accesses treatment to manage her mental health. Ms Timberlake mental health issues may detrimentally affect her ability to be attuned to [X]’s needs. Notwithstanding, it is noted that the risk of Ms Timberlake failing to sensitively respond to [X]’s needs, is likely to be mitigated through the support she receives with her parenting from the maternal grandparents.
[133] Ms Timberlake and Mr Judd present as having a limited effective co-parenting relationship. Ms Timberlake appears reluctant to communicate with Mr Judd due to his alleged aggression towards her. Meanwhile, Mr Judd seems to believe that the parties generally enjoy an effective co-parenting relationship. Overshadowing the apparent limited effective co-parenting relationship between the parents, there appears to be tensions between the maternal grandparents and Mr Judd. It is concerning that, despite the order of 24/05/2018, requiring that he provides a note regarding where he will take [X] when they spend time together, Mr Judd does not comply with this requirement. Mr Judd’s non-compliance with the order might be contributing to the difficulties, which he and the maternal grandparents seem to experience in their relationship.
[134] Ms Timberlake’s proposal that [X] lives with her and that [X] continues to spend time with and communicate with Mr Judd under the provisions of the current orders, appears to be based on her desire to ensure [X]’s safety. The main advantage of this proposal seems to be that it would allow [X] to maintain consistency of primary carer.
[135] Mr Judd’s proposal that [X] lives in an equal shared care arrangement seems to be founded on his wish to develop and strengthen his relationship with [X]. The main advantage of this proposal seems to be that it may conceivably provide [X] and Mr Judd with the opportunity to consolidate their relationship. A disadvantage of this proposal, is that it is unclear how such a proposal could operate given that the parties live in different geographical areas and both state that they cannot relocate. Despite the practical difficulties of implementing Mr Judd’s proposal for an equal shared care arrangement, his proposal could be interpreted as a sign that he lacks insight into [X]’s needs. If Mr Judd’s proposal is implemented, it would require substantial changes in the parenting arrangements, which [X] would likely find stressful and confusing. Those changes would include, a change in routine, significant periods of separation from Ms Timberlake and the maternal grandparents, with whom she enjoys a close relationship, and a change in her geographical residence. Alongside this, Mr Judd’s capacity to care for [X] seems to be relatively untested given that [X] has only spent one overnight with him since 2017. Furthermore, [X]’s young age and the parties’ apparent limited effective co-parenting relationship is a contraindication for an equal shared care arrangement and could leave [X] at the centre of ongoing parental conflict.
[136] This assessment highlights concerns regarding Ms Timberlake having mental health problems. Nevertheless, Ms Timberlake’s mental health appears stable and she is reportedly well supported by the maternal grandparents. Meanwhile, information gathered at this assessment from Ms Timberlake and the maternal grandparents suggests that Mr Judd may struggle to manage strong emotions. Notwithstanding, it is noted that during the assessment Mr Judd presented as calm and co-operative. Given the maternal family’s allegations of aggression, it might be that Mr Judd would benefit from undertaking an anger management course.
[137] Information collated in this assessment suggests that [X] is settled living with Ms Timberlake, therefore it is recommended that she remains in Ms Timberlake’s primary care.
[138] Weighing up the options for [X]’s time with Mr Judd, will depend on the findings that the Court makes regarding his alleged aggression. If the Court finds that Mr Judd is repeatedly aggressive towards Ms Timberlake and the maternal grandparents in [X]’s presence, [X] might be at high risk of harm in his care, in such circumstances it may be appropriate for [X]’s time and communication with Mr Judd to be reduced and for all changeovers to occur at a Contact Centre. If the Court finds that either Mr Judd has not been aggressive towards Ms Timberlake and the maternal grandparents, or that it only occurs occasionally, it is recommended that the current arrangements remain in place. If such an order is made it is recommended that the parties, including the maternal grandparents, are restrained from exposing [X] to their dispute. It is suggested that the parties could review the possibility of [X] spending overnights with Mr Judd when [X] is 5 years old. Once [X] is 5 years old she is likely to be better able to express her views regarding the care she receives from each of her parents. One option might be for [X] to spend one overnight a month with Mr Judd a month in Town F and one overnight a month in the Town G region.
[139] In respect of Mr Judd’s proposal that changeovers occur at Town G . Mr Judd’s proposal is not supported because it would require [X] travelling for at least one and a quarter hour each way for contact and such travel is likely to feel burdensome for [X] being an infant. [X] would likely be better able to tolerate this length of travel when she is 5 years of age and, as suggested above commences spending overnight time with Mr Judd.
The Family Consultant’s recommendations were as follows:
[140] Unless evidentiary material should suggest otherwise, particularly in relation to Mr Judd’s alleged aggression, it is respectfully recommended that:
· [X] lives with Ms Timberlake.
· [X] spends time with Mr Judd each alternate Sunday from 10am until 3:30pm and that changeover occur in Town G.
· Mr Judd provides a note a changeover regarding where he will be taking [X].
· Ms Timberlake, the maternal grandparents and Mr Judd are restrained from making derogatory comments about one another in [X]’s presence.
· Mr Judd undertakes an anger management course.
It is important to note here (and it is recorded in the Father’s written submissions later in these reasons) that the Father has already confirmed that he has done an anger management course. This certainly shows the Father’s commitment (which I do not doubt at all) to ensuring that he is able to spend quality time with his daughter. I not for his sake that the emphasis is and must remain on the quality of his time with [X] rather than the quantity of it. Put another way, the Act requires the Court to focus on Orders that will ensure, as far as it is in the child’s best interests, that there is a meaningful relationship between the child and both of her parents. I note too that in the Family Consultant’s oral evidence she confirmed that an increase in a parent’s time does not necessarily mean that the parent involved has a corresponding improvement in parenting skills or insight.
The Family Consultant’s Oral Evidence
Briefly stated, the oral evidence of Ms D during the hearing was as follows.
Ms D said that, in her view, the current time-with arrangements for the Father should remain in place until she turns 5, which would/will mean that [X] will continue living with her Mother and the maternal Grandparents. She said that, subject to other matters noted below, she envisaged a progression of time for [X] eventually to spend overnight time with her Father.
She agreed with the general proposition that travel between Sydney and Canberra was an issue both for the parties and especially for this young child.
Ms D said that if the Court found that the Father shaving his body hair was designed to thwart him undertaking a hair follicle test, then her comments and recommendations would likely need to be re-visited. Likewise if the Father returned positive drug test results.
She acknowledged that the Father showed a keen interest in [X]’s play and that he gave appropriate learning opportunities and directions. At the same time, Ms D said that some of the Father’s questioning of [X] during the observation time could have been an attempt to influence either [X] in her responses, or the Family Consultant in her comments and recommendations.
Ms D questioned, not in an overly critical way, the capacities of both parties to parent [X] without support from others. In the Father’s case, this was predominantly because he has not been required to parent [X] either at all, or only for very limited periods, when the parties were together. In the Mother’s case, especially (but not only) because of her mental health issues, she needs the support and assistance of her parents. Indeed, Ms D commented that, in her view, the Mother would struggle to parent [X] without the support of her parents. She also acknowledged that the Mother living with her parents will likely mitigate any risks of the Mother having further mental health issues, which in the past have impacted on her conduct, such as stealing. The Mother’s evidence in this regard was that she stole when under stress, which she is not now because she is living with her parents.
She acknowledged that both parents love [X] and want the best for her.
Regarding when the Mother and [X] might live independently from the Grandparents, Ms D said that was a question for, perhaps, when [X] had turned 8 and would require consideration of how well the Mother’s mental health was being managed.
Ms D noted that changeovers had been occasions of difficulty and fractiousness between all parties at different times. If this continued, changeovers would likely best take place at a contact centre.
This issue of conflict between the parties was also relevant to [X] spending overnight time with her Father. In her view, there needed to be a significant “de-escalation” of the conflict between everyone before there was any increase in time, and especially overnight time. It was equally important that provocative action, such as recording (in any way) the changeovers, and any other aggression or uncivil behaviour, cease immediately.
It was put to Ms D that the Father provides toys for the child but insists that those toys remain with him rather than travel with her to the Mother’s residence. Ms D said that this was likely to be detrimental to the child because it would potentially send, and give her, mixed feelings about time with her Father. In my words, he gives something to his daughter, then he takes it away. If the same thing happened with [X]’s clothes - change of clothes before going back to the Mother – this too would send mixed and conflicting messages to the child, as well as indicating to her that there was a strain (and worse) between her parents. Thus far, it would seem, [X] has been largely shielded from the conflict between the adults.
Ms D expressed concern about the Father’s unilateral action on one occasion in retaining [X] when she was due to be returned to her Mother. I share the same concerns. Such action could, said Ms D, also give the Mother cause to not trust the Father.
The Family Consultant also noted that the Father genuinely tries hard. However, she said that she had some reservation about his capacity or ability to “step outside of himself” to understand [X] rather than putting his own needs ahead of [X]’s. His time with her was, in certain respects, more important than what was necessarily in her best interests.
Ms D formally noted her concerns about the allegations against the Father of use of steroids, use of cocaine, and incidents of domestic violence. All of this said, Ms D confirmed that at the interview, the Father presented as calm and reasonable. She noted that the Father contended that the domestic violence claims were vexatious, while the Mother presented as someone who has been the subject of such violence. At the same time, she acknowledged that the Mother was not bitter towards the Father, which clearly was a good thing in all the circumstances.
In answer to questions from the Father, Ms D commented that there could be an increase in his time with [X] (or a re-visiting of such arrangements) if the allegations of aggression, derogatory comments, and conflict more generally, subside. This is particularly important and significant at changeovers. Any increase in the Father’s time with [X] should only be considered when the child is a bit older.
Finally, Ms D commented that the minimisation of conflict would also assist in [X]’s interactions with her parents when using Facetime. Moreover, everyone needed to remember that a 3 year old’s capacity to engage meaningfully via electronic media (including a mobile telephone) will necessarily and very likely be sporadic and/or intermittent in her concentration and enthusiasm.
In sum, my general assessment of the Family Consultant’s evidence was as follows:
(a)Ms D was cautiously positive about the relationship that [X] enjoys with all the adults in her life;
(b)She sees the possibility of [X]’s time with her Father increasing, albeit rather slower than the Father would currently wish or hope. This is very much dependent upon changeovers being less confrontational in every respect. It is also dependent upon the Father growing or developing in patience and insight (both difficult things admittedly) regarding what is in [X]’s best interests, as opposed to what he perceives to be his want or desire to spend more time with his daughter;
(c)Ms D’s views are very much dependent upon the Court being satisfied about (i) the Father addressing his issues (outlined above), (ii) the Mother remaining living with her parents and paying particular attention to her mental health and general well-being, and (iii) the co-parenting relationship/s (among all the adults currently involved in [X]’s life) improving significantly;
(d)It is important to note, if not to highlight, that Ms D recorded how earnestly the Father was and is trying to improve a significant number of matters for his benefit and in turn for [X], and equally (as earlier observed) how good and close a relationship [X] has with all the adults in her life;
(e)The “tyranny of distance” is an issue of particular significance in this matter given the amount of travel involved for both parents and their young daughter. Short of one parent moving closer to the other parent, this will remain a significant issue that will impact upon many decisions regarding time with and related matters well into the future.
Written submissions on behalf of the Applicant
Following the Final Hearing, the parties were afforded an opportunity to file written submissions. The Applicant’s submissions were filed on 30th May 2019, and were as follows:
SUBMISSIONS OF THE APPLICANT MOTHER’S SOLICITOR
Principles relevant to parenting orders
1) The Applicant Mother relies on her Case Outline of 10 pages already filed herein on 8th May 2019 and repeats the statements therein made.
2) The Applicant Mother adopts the Minutes of Orders proposed on behalf of the Independent Children Lawyer and requests one further order:
a) That the Respondent Father’s consent to the issues of an Australian Passport and the provision by him of any documents including his birth certificates and/or passports to the Australian Passports Office is hereby dispensed with as pursuant to ss 7 and 11 of the Australian Passports Act 2005 (Cth) it is not practical to obtain these documents to enable the child of the relationship [X] born on … 2016 to obtain an Australian Passport.
b) The Mother of the child be permitted to apply for an Australian’s Passport to enable the child to travel internationally, notwithstanding that the Father has not provided his documents and furthermore the said child be permitted to travel internationally without the consent or co-operation of the Father.
These additional orders are requested as the Father has failed to provide his documentation to the Australian Passport Office. The Father’s documents were required by the Passport Office before it would issue the child’s passport as the Mother is a British citizen and not an Australian Citizen.
Further and in the Alternative
c)The Mother submits that if your Honour is not minded to make orders substantially in accordance with the Minutes of Orders Sought by the Independent Children Lawyer, then your Honour will be satisfied that the Orders as sought by the Mother in her Case Outline are proper and are in [X]’s best interests, including the Order dispensing with the Father’s consent to the issue of a Passport.
3) The way in which parenting issues are decided has been discussed in a number of cases. The High Court has provided an outline and some minor differences of approach have been adopted and have survived intermittent appellate attention.
4) For the purposes of the determination of these proceedings, it is appropriate to adopt the following approach:
a)Set out the proposals, including options not advanced by any party that the parties address or could have addressed,
b)Where possible and relevant, consider and make findings about the matters set out in S.60CC,
c)Consider and make findings about parental responsibility, including considering the presumption in S.61DA,
d)Apply S.65DAA if relevant and assess the proposals in light of the provision,
e)If S.65DAA is not relevant, assess the proposals against the best interests criterion,
f)Make findings about living arrangements, and
g)Make orders.
Presumption of equal shared parental responsibility when making parenting orders
5) Section 61DA 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.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in Section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(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:
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
Family violence,
(3.) Your Honour will find that in this case the presumption is 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, i.e. family violence, distance between the parents residences and lack of a parenting relationship that allows the parents to communicate and/or co-operate.
6) The fact that the Father is likely abusing non-prescription drugs including Cocaine, Benzodiazepines and Steroids is a concern.
7) The fact that the Father did not put any questions to the Mother in his cross-examination of her about her allegations of his perpetration of Family Violence on her demonstrates his culpability.
8) The risk factors for [X] of the Father’s drug abuse and lack of emotional self control are great. The Father’s propensity for aggression and propensity towards initiating conflict was convincingly corroborated by the Mother’s parents’ evidence given under cross-examination.
Children’s best interests paramount
9) Pursuant to S.60CA of the Family Law Act 1975 (Cth) (the Act), in determining whether and if so what parenting orders in relation to a child should be made, the Court must regard the best interests of the child as the paramount consideration.
Objects and principles underlying objects
10) Section 60B of the Act provides that the objects of Part VII of the Act, which relates to children, are to ensure that the best interests of the child is met by:
a)Ensuring that the child has the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extend consistent with the best interests of the child; and
b)Protecting the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)Ensuring that the child receives adequate and proper parenting to help her achieve her full potential; and
d)Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of the child;
And that the principles underlying the objects are that, unless it would be contrary to a child’s interests:
a)The child has the right to know and be cared for by both their parents, regardless of whether the parents are married, separated, have never married or have never lived together; and
b)The child has a right to spend time on a regular basis with, and communicate on a regular basis with, both parents and other people significant to her care, welfare and development (such as grandparents and other relatives).
Determining what is in a child’s best interests
11) Section 60CC of the Act provides that the Court must consider the matters set out in S.60CC (2) and (3), described as the “primary considerations” and the “additional considerations”.
12) The primary considerations are:
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations are referred to below, to the extent that each may be relevant.
Parental responsibility
13) Your Honour will find that there are reasonable grounds to believe that a parent of the child, namely the Father, has engaged in abuse of the child’s Mother and family violence was perpetrated by the Father against the Mother, including when [X] was present in the household.
14) Your Honour will find that under Section 65DAA(5) of the Act that it is not reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents by reason of:
a)How far apart the parents live from each other (255 kilometres);
b)The parents current and future inability to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents;
c)The parents’ current and future inability to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind;
d)The impact that an arrangement of that kind would have on [X]; and
e)That to allow overnight time with the Father before [X] attains the age of 6 years would be detrimental.
Section 60CC(3) Additional Considerations
Best Interests Section 60CC(3)(a) wishes
15) This is not yet a relevant factor as [X] has just turned three years old.
Section 60CC(3)(b) Nature of Relationship with parents and other parties
16) [X] is very attached to her primary carer giver, the Mother. The Family Consultant was concerned about the Father’s capacity to control his anger and frustration. The child has a close and loving relationship with the maternal Grandparents with whom [X] lives. The Father’s ability to care for [X] overnight is untested. He has only spent one occasion overnight with [X] when he withheld her in November 2017. The particulars of how he cared for her during this time are unknown.
Section 60CC(3)(c) Failure to participate in decisions about long-term issues or to spend time with the child
17) The Father received results of his drug test in January 2018 but chose not to provide these to the Mother until 2 months later, despite him knowing that this was a real concern and impediment to his spending time with [X]. He is unable to engage in any meaningful way when it comes to making any decisions that affect [X].
Section 60CC(3)(a) Failure in their obligations to maintain the child
18) The Father has paid very little in child support since separation and has refused to contribute to [X]’s expenses for day care. The Mother was forced to seek the Child Support Agency’s intervention to obtain a reasonable level of support for [X] from her Father.
Section 60CC(3)(d) Likely effect of change in circumstances
19) The Mother’s proposal for orders as to the time [X] spends with the Father is sufficient for her to have a relationship with him. The recommendation of the Family Consultant is that there be no change in the arrangements that are currently in force. There is no feasible way for the parents to spend equal time with [X] due to geographical distance, mutual distrust, conflict and poor communication.
20) There is no proposal from the Father as to how the parenting relationships should be improved. The Mother is available to care for [X] and in the event that she is unable to do so, her parents are on the spot, ready and willing to assist her when necessary.
Section 60CC(3)(e) Practical difficulty and expense
21) In order to protect [X] from further conflict it is desirable that Supervision Centre B or the current handover location continue to operate. This is a venue which allows the Mother to delegate the changeover to her parents and therefore she can feel safe and less anxious. Even so, the Father has sought to involve her parents in unpleasant and tense changeovers. To move these to the Father’s home or midpoint would likely exacerbate an existing problem.
Section 60CC(3)(f) Capacity to provide for the child’s needs including the emotional and intellectual needs
22) There is no concern about the Mother’s care of [X]. There are concerns relating to the Father including exposing [X] to family violence and his willingness at handovers to make things difficult and unpleasant. The Father has no insight as to the need to quarantine [X] from conflict, and her distress at changeovers.
23) There is concern that the Father has been abusing non prescribed drugs and has neglected [X] as well as his willingness to put her at risk by driving in a dangerous manner.
24) There is sufficient doubt about the Father’s parenting capacity to cause reservations about the extent of the Father’s parenting skills e.g. when [X] sustained sunburn, his willingness to burp in her face despite her being upset and his non-responsive behaviour at changeovers.
Section 60CC(3)(j)t(k) Any family violence
25) This is referred to the above.
Section 60CC(3)(i) Orders least likely to lead to further proceedings
26) The Orders sought by the Mother are as recommended by the Family Consultant and are least likely to lead to further proceedings.
Any other fact or circumstance that the court thinks is relevant
27) The evidence clearly establishes that the mother is the most significant parent who is likely to be very crucial to the child’s future wellbeing and her parents are very much an integral part of her ability to meet [X]’s needs.
28) Whilst it is necessary to balance the level of risk to the child of possible physical or emotional harm or neglect from her father against the potential benefit of [X] spending time with her father, it is also important to consider the likely negative impact on the mother as principal carer if she has to endure the anxiety, distress and fear that an order for no supervision or overnight care in respect of the father’s contact with [X].
29) It is submitted that there is ample evidence to demonstrate that unsupervised and/or overnight contact would pose a real risk of harm to the child from their father and that the level of risk is unacceptable and significant.
30) [X] is quite vulnerable in her own way and at barely age 3 years old is unable to protect herself. The magnitude of the risk will be much less if the Father’s contact is supervised. The overriding consideration is the welfare of [X]. [X]’s right to safety is paramount.
31) The facts established by the Mother in this case are that Mr Judd has perpetrated past significant physical abuse on her, and has been oblivious to the emotional harm he has caused to [X]. Unsupervised contact could result in serious adverse consequence for [X].
32) The Mother’s belief that the Father is a risk to [X] is not only genuine but realistic. Objectively, there is an unacceptable risk. Her belief is likely to impact on her capacity as the primary carer of [X]. The Father’s contact should be supervised. This may also allay the Mother’s reasonable apprehensions.
33) Your Honour has had the advantage of observing the behaviour, demeanour and insight (or lack thereof) of each of the parents during the proceedings. Particularly when under cross examination.
34) Your Honour could draw an inference as to the likely future behaviour of each of the parents based on their past behaviours.
35) Whilst Your Honour can be satisfied that the Mother will meet [X]’s needs in the future, the father’s evidence would give rise to an assessment that he has much more work to do before [X] should spend unsupervised time with him.
Credit of the parties
36) The Court would accept the Mother as a witness of truth and have no issues with her testimony. The Father presented as less than candid, at times he was evasive and contradicted himself. The Father displayed a pronounced lack of insight as to [X]’s past experiences of him and he also had an unrealistic assessment of his parenting skills which have been inadequately applied at times.
37) [X] is too young to be tasked with the responsibility of keeping herself safe. The Mother seeks orders for sole parental responsibility. Her ability to communicate with and consult with the Father is extremely limited, founded on her reasonable belief that he is both a risk to herself and to [X].
38) The Court may direct the Mother to advise the Father of certain matters relating to [X] from time to time. The orders sought by the Independent Children Lawyer and the Mother will permit [X] to develop a relationship with her Father whilst she is kept safe, and also ensure the Mother’s parenting capacity is protected.
39) The Orders sought by the Mother reflect the recommendations of the Family Consultant who was not moved to change her recommendations when cross examined at the Hearing.
Written submissions by the Respondent
The Respondent filed his written submissions on 21st June 2019, which were as follows:
SUBMISSIONS OF THE RESPONDENT FATHER
Principles relevant to Parenting Orders
1) I rely on the Orders sought his Case Outline already filed herein on 8 May 2019, and repeats the statements therein made.
Presumption of Equal Shared Parental Responsibility when making Parenting Orders
2) Section 61DA 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.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in Section 61B.
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.
The family violence that was asserted by the mother as perpetrated by me is denied. When the mother was on the witness stand it was admitted by the mother under my cross examination that notwithstanding the serious allegations of physical violence that she did not report instances of violence to the police. The mother has also admitted that she attended at my home post separation with [X] unaccompanied which suggests that she is not in fear in my presence. I have made concession and with regret as to one occasion where I admit that I put holes in the door at the beginning of the relationship. The more recent allegations of aggression are denied.
I concede that there have been instances of verbal exchanges that occurred at the time leading up to and just after separation however this is no longer an issue. Communications between the parties are by text and civil.
In line with the concessions that I have made and irrespective of the historical nature of the violence I have enrolled in an anger management course at the Relationships Australia office in Town L NSW. The course commences in late July. This course will go for 6 weeks.
Prescription drugs and cocaine are not of issue. Assumptions have been made that I am abusing drugs based on my inability to complete a hair follicle test for the ICL after she was appointed. I assert that after the ICL made the request for me to undergo a hair follicle test I attempted to do this immediately and was told by the sample collector that my hair was too short. When previous allegations of drug use were raised by the mother and she withheld [X], I completed a urinalysis to show that I was not on illicit substances.
On the basis of the above I believe that the mother and I can converse and agree about the major long term decisions for [X]. I’m happy to be civil and co parent with the mother to the best of my ability as I have been and will continue to do so regardless of any situation. To that end it is submitted that an order for equal shared parental responsibility is appropriate.
Children’s best interest paramount
3) Pursuant to S 60.CA of the Family Law Act 1975 (Commonwealth) (‘The Act’), in determining whether and if so what Parenting Orders in relation to a child should be made, the Court must regard the best interests of the child as the paramount consideration.
Objects and principles underling objects
4) Section 60B of The Act provides that the objects of Part VII of The Act, which relates to children, are to ensure that the best interests of the child are met by:
a)Ensuring that the child has 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;
b)Protecting the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)Ensuring that the child receives adequate and proper parenting to help her achieve her full potential; and
d)Ensuring that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of the child;
And that the principles underlying the objects are that, unless it would be contrary to a child’s interests:
a)The child has the right to know and be cared for by both their parents, regardless of whether the parents are married, separated, have never married or have never lived together; and
b)The child has a right to spend time on a regular basis with, and communicate on a regular basis with, both parents and other people significant to her care, welfare and development (such as grandparents and other relatives).
Consideration of the matters in Section 60CC
Meaningful relationship
Section 60CC(2)(a) requires the Court to consider the benefit to the child of having a meaningful relationship with both of their parents.
The orders that I seek progresses the current care arrangements in that [X] live with the mother and spend graduated time with me, with the first block periods being in Canberra. The mother and the ICL’s position seek to amend the current Orders and reduce my time by relegating me to supervised time on grounds of which there was no corroborated evidence as to drug use.
Protecting the child from harm
Section 60CC(2)(b) and section 60CC(2A) work together to give greater weight to the consideration of protecting the children from harm than the benefit to the child of having a meaningful relationship with each parent.
[X] has an established relationship with me. I have not missed any visits since I have been able to spend time with her pursuant to the Orders of the Court. The allegations of violence as raised by the mother, although not admitted, are historical and is asserted to occur prior to the birth of [X].
The allegations of violence as asserted by the maternal grandparents, although not admitted, all occurred in a public place and during changeover. I have conceded that there have been tense exchanges and explained as to the reason why I recorded the interactions in an effort to avoid how things get misconstrued. Further to this there has not been an application to modify or suspend this time.
It is asserted that [X] was not exposed to any verbal abuse between the mother and me. These conversations happened between the mother and I, and prior to her birth.
It is asserted that I am not an unacceptable risk to [X].
Views expressed by the child – s 60CC(3)(a)
n/a – the child is not of an age to show views
Failure in their obligations to maintain the child – s 60CC(3)(a)
Parties reached consent Orders where the mother received a sum of $165,000.00
The mother took most of [X]’s furniture when she left the former matrimonial home.
I have made payment for [X] as assessed by the Child Support Agency of $75 a week for a year and a half. I subsequently have paid any amount assessed.
Nature of relationship with parents and other parties – S 60CC(3)(b)
The current relationship between the mother, her parents and I is on a civil level and I will continue to make sure that nothing will ever be an issue and avoid conflict or confrontation. Suggestion was made that changeover occur at a neutral location such as a petrol station.
Parental engagement – S 60CC(3)(c), (ca)
The mother will remain the primary carer of [X].
I have spent time with [X] in a Canberra area each alternate weekend for approximately 2 years. To date I have committed to driving to Canberra from Sydney which is 6 hours round trip to spend time with [X].
Likely effect of change in circumstances – S 60CC(3)(d)
Neither party seeks to change the living arrangements for [X].
The orders I seek are that I graduate to overnight time with the preliminary block visits to remain in Canberra to be close to the mother if need be.
The mother’s order in adopting the minute of the ICL seeks to limit the time that [X] has with me to a supervised setting one per fortnight. The impact on [X] would be arguably greater if time with me is limited.
Practical difficulty and expense – S 60CC(3)(e)
My proposal is that changeover occur at a midpoint between homes. It is argued that this is not a practical difficulty for the mother as she has access to vehicles. The mother has also given evidence that she has travelled to Sydney with [X] and as such meeting between Sydney and Canberra at Town G. The mother admitted to travelling to Sydney a numerous amount of times with [X] in her care where she would take a break for 20 minutes at the halfway point.
If the Court is not satisfied that the current changeover is suitable then I am happy to attend changeover at a service/contact centre that facilitates this service while I am in Canberra.
I have no opposition to the maternal grandparents attending changeover as what has occurred since my time for [X] was established by Court Order. It is the maternal grandmother’s evidence that notwithstanding the perceived aggression that she asserts as perpetrated by me that the changeover occurs at the same venue where the alleged aggression takes place. It is submitted that the changeovers between them are not aggressive as suggested by the Applicant and her family.
Capacity to provide for the child’s needs including the emotional and intellectual needs – S 60CC(3)(f)
Given [X]’s young age it is premature to make submissions as to her intellect however I have attended to [X]’s needs while having her in my care by providing for her food, change of clothes and setting her down for a nap.
I assert that I have not exposed [X] to violence. As relayed in Court the perceived aggression that is displayed at changeover is denied and certainly questioned if the maternal grandmother concedes that change over should remain at the same location. It was suggested by myself that changeover occur at a service centre only to alleviate the applicant and her parents concern as to my behaviour, not as an admission that the account of the changeovers made by her parents are accepted.
I have no concern in relation to the mother’s care of [X]. The Orders sought maintain that she remains in the mother’s primary care. This is on the basis that the Applicant admits to her own drug use in the past.
I have not abused drugs while [X] was in my care. I have historically provided urinalysis to the mother at her lawyer’s request. The only other request for testing occurred after the ICL was appointed and not pursuant to Court Order. Irrespective, I indicated my commitment to do this however my hair was not long enough to provide sample. The Court cannot be satisfied that an adverse inference can be drawn from this. If the concerns were a live issue then the mother should have filed a relevant application for supervised time while this matter has been on foot. Rather the mother has adopted a position following receipt of ICL minute of Order, that they are now seeking my time be supervised.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents – S 60CC (3)(i)
I have made myself available to attend at Canberra for my visits for 2 years. I have at times been late however this is not a regular occurrence. I have demonstrated a commitment to attend notwithstanding the distance.
I have met my child support obligations as assessed by the Child Support Agency.
Any Family Violence – S60CC (3)(j), (k)
As explained
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children – S 60CC(3)(l)
Minute Orders that I’m seeking are least likely to lead to further proceedings as I am seeking significant and substantial time on alternate weekends and during school holidays.
The minute of order as sought by the ICL and adopted by the mother suggests that my time be supervised pending receipt of 4 hair follicle testing however this would thereafter lead to the mother making a determination as to my time, noting that the ICL will be discharged pending final Order. This Order is also onerous as I am required to produce 4 tests but given that a strand of hair covers 3-month periods then I will be limited to reducing my time for at least a year to satisfy this Order. It would be likely then that if the mother is not satisfied as to the results then a further application is made to the Court.
Any other fact or circumstance that the court thinks is relevant – S 60CC(3)(m)
The minute orders I seek shows a slow progress in the time [X] spends with me and shows less impact to [X]’s routine and current arrangements but shows a slow increase in time and takes into consideration the family consultant’s report.
[X] has spent one night with me but as all new parents/single parents, circumstances change, and new situations will be challenging with the right support network, I am open to any challenge especially one with the care of my daughter. I will do what it takes to make sure [X]’s transition into her time with me will be nothing but smooth.
I have the support of my close and extended family. The Orders I seek allow for [X] to have a meaningful relationship with her paternal family.
Credit of the Parties
I assert that I answered all questions put to me honestly while under oath. Concessions were made where necessary however I have not diverted from my accounts in my affidavit material. There has been no corroborative evidence by subpoena as tendered by any party as to the invalidity of my account.
The mother has on the other hand provided differing accounts as to her previous drug use and failed to advise the Court as to her meeting with me in Sydney when she previously filed her material. The mother has a criminal history where she has been charged for fraud, deception and making false statements and has admitted to the same. The mother recently conducted criminal activity whilst [X] was in her care. It is submitted that this type of her behaviour goes against credit.
Written submissions by the Independent Children’s Lawyer
The Independent Children’s lawyer filed her written submissions on 24th June 2019. They were as follows:
1) These proceedings relate to [X] born … 2016 (‘[X]’) and who is now 3 years of age.
2) Following the completion of evidence in the final hearing on 16 May 2019, the parties were ordered to prepare final written submissions of no more than 10 pages.
3) The dispute between the parties is in relation to [X]’s time with the Father and whether the Mother should have sole parental responsibility for the child.
The Father’s Position
4) The Father proposes the parties have equal shared parental responsibility.
5) The Father’s position as at day one of the trial was that [X] should spend time with him in increasing periods as follows:
a. For a period of 4 months as follows:
i.Each alternate Saturday from 10:00 – 3:30pm and Sunday from 10:00 – 3:30pm; and
ii.Each intervening Saturday from 10:00am – 3:30pm.
b. For a period of 4 months as follows:
i.Each alternate weekend from 10am on Saturday until 3:30pm on Sunday; and
ii.Each intervening Saturday from 10:00 – 3:30pm and Sunday from 10:00 – 3:30pm.
c. For a period of 4 months as follows:
i.Each alternate weekend from 10pm on Saturday until 3:30pm on Sunday with such time to occur in the Canberra region.
d. For a period of 4 moths as follows:
i.Each alternate weekend from 12pm on Saturday until 5:00pm on Sunday with such time to occur in the Canberra region.
ii.Each alternate weekend from 12pm on Saturday until 5:00pm on Sunday.
e. Thereafter:
i.Each alternate weekend from 12pm on Saturday until 5:00pm on Sunday.
6) The Father proposes changeovers occur for day time only time and for time spent in the Canberra region occur in Town G NSW and for overnight time not limited to the Canberra region, the parties conduct changeover at the Town G NSW McDonalds.
The Mother’s Position
7) The Mother indicated at the commencement of trial that she supported the final orders proposed by the Independent Children’s Lawyer (ICL) save for seeking additional orders allowing the issue of a passport for [X].
The ICL’s Position
8) The ICL tendered a Minute of Proposed Final Orders at the commencement of the trial. A copy of the same is attached herewith for ease of reference.
9) In summary, the ICL proposed:
a. The Mother have sole parental responsibility for [X].
b. That [X] live with the Mother provided that:
i.She remain living primarily with the maternal grandparents, Mr D and Ms C Timberlake, until [X] reaches the age of 8 years; and
ii.She follows all recommendations made by her treating health professionals in relation to her mental health diagnoses.
c. That [X] spend time with the Father as follows:
i.On a supervised basis at the Supervision Centre B in Canberra on no less than one occasion per fortnight; and
ii.With the Father to meet all of the costs if either party elects to use the fee paying service.
d. That on production by the Father to the Mother of a clean/negative hair follicle test, the time spent by [X] with the Father revert to the following:
i.From 10:00am until 3:30pm each alternate Sunday;
ii.With changeovers to take place at the Town G near Canberra; and
iii.With the Father to inform the Mother in writing of where he intends to take [X].
10) The Expert Witness, Family Consultant Ms D gave evidence confirming her view (as set out in the Family Report dated 18 April 2019 (‘the Family Report’)) that, if the evidence favoured the Father, the time he spends with [X] should remain as it is currently and that if the evidence favoured the Mother, the Father’s time should be reduced.
11) Ms D indicated under cross-examination that if the Father was using illicit substances, her view would likely change in that she would be concerned about:
a) The Father’s veracity given his denial of drug use;
b) The Father’s ability to respond to and be alert to [X]’s needs; and
c) [X]’s safety when travelling in the car with the Father.
12) When asked what the Father’s deficiencies were, Ms D gave evidence that the Father’s denial of all of the allegations of aggression were of significant concern.
13) In relation to the Mother, Ms D gave evidence that there may be a risk to [X] if the Mother did not address and treat her mental health issues appropriately.
14) The ICL considers the evidence favoured the Mother at trial, as set out below, and supports the recommendations of the Expert Witness that the Father’s time be reduced.
Legislative Pathway
15) Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act 1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration.
16) Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects.
17) In determining what is in a child’s best interests the Court must consider the matters set out in section 60CC of the Act.
18) There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.
19) The court must also take into account those of the “additional considerations” that are relevant.
20) Brown J’s judgment in Mazorski v Albright [2007] FamCA 520; (2008) 37 Fam LR 518 sets out a succinct overview of relevant sections (and principles) of Part VII of the Act (and Her Honour’s remarks, in relation to the “twin pillars”, and in relation to “meaningful relationship”, have been consistently cited with approval by the Full Court, for example in Moose &Moose [2008] FamCAFC 108; (2008) FLC 93 – 375; McCall v Clark [2009] FamCAFC 92; (2009) 41 FAM LR 483; Sigley v Evor [2011] FamCAFC 22; (2011) 44 FAM LR 439; Shaeffer v Jacobs [2011] FamCAFC 119; (2011) FLC 93 – 468; Maluka v Maluka [2011] FamCAFC 72; (2012) 45 Fam LR 129.
PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY
21) There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (section 61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
22) The Father seeks an order for equal shared parental responsibility; the Mother seeks an order for sole parental responsibility.
23) The Expert Witness’s evidence was that if the Mother’s allegations about aggression are substantiated, there is merit to the Mother having sole parental responsibility.
24) The ICL submits that the presumption set out in section 61DA should not be applied in this matter given the Father:
a) Admitted to perpetrating an act of family violence in causing damage to a door by punching it during a dispute with the Mother;
b) Admitted to tracking the Mother via a mobile phone application; and
c) Admitted to sending numerous verbally abusive SMSs and intimidatory SMSs designed to ‘stir [the Mother] up and frighten her’ to the Mother.
25) The ICL submits that the evidence given by the Mother and supported by the Maternal Grandmother and Maternal Step-Grandfather in relation to the Father acting in an aggressive, violent and conflictual manner was consistent, detailed and compelling and should be accepted by the Court. The ICL notes that the Father largely did not challenge the evidence given by the Mother and the Maternal Grandmother and the Maternal Step-Grandfather, in relation to aggression, violence and conflict.
26) Further, the ICL notes that under cross-examination, the Father admitted that the evidence given by the Maternal Grandmother in relation to damage caused by him to a door during an argument with the Mother and the Maternal Grandmother having seen steroids sitting out on a table in a property shared by the Mother and the Father was true.
27) In considering whether the Mother should have sole parental responsibility the ICL also notes the following:
a) The Father did not comply with a request from the ICL to undertake hair follicle testing, despite agreeing to do so;
b) The Father admitted that he had obtained and taken prescription benzodiazepine medication without a valid prescription on at least one occasion;
c) The Father’s retention of [X] on one occasion and his behaviour in relation to returning her to the Mother;
d) The Father admitted that he has not complied with Orders of the Court to provide notice to the Mother about where he is taking [X] during his time with her; and
e) The Father’s inability or unwillingness to accept any responsibility for the conflict between the parties and the maternal family.
28) Given the above, and the ICL’s position that the time the Father spends with [X] should be limited, the ICL considers an orders [sic] that the parties have equal shared parental responsibility is likely to lead to further conflict between the parties and not allow the Mother to parent [X] to the full extent of her ability. The ICL therefore supports the Mother having sole parental responsibility.
RELEVANT SECTION 60CC FACTORS
29) The benefit to the children of having a meaningful relationship with both parents (section 60CC 2(a)):
a. The ICL submits that [X] will benefit from having a meaningful relationship with both of her parents.
30) The need to protect the children from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence (section 60CC 2(b)):
a) The ICL submits that [X] is currently at risk of psychological harm from exposure to family violence including aggression and intimidation perpetrated by the Father and occurring at changeovers and during FaceTime communication.
b) The ICL submits that [X] may also be at risk of physical and/or psychological harm in the Father’s care if the Father is unable to adequately address and control his anger and aggression.
c) The ICL submits [X] may also be at risk of physical and/or psychological harm in the Father’s care if the Father continues to use prescription medication without a prescription or a doctor’s oversight and if the Father is using illicit drugs.
d) The ICL submits that in the event the Mother’s mental health deteriorated, [X] may be at risk of psychological harm by exposure to criminal activity. The ICL submits this risk is mitigated by the Mother’s willingness to comply with orders that she continue to live with her mother and step-father and continue engaging with and following the recommendations of her treating practitioners and by the Mother’s family committing to the same.
31) Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children’s views (section 60CC 3(a)):
a. [X] is too young to express a view.
32) The nature of the relationship of the children with:
a. each of the children’s parents (section 60CC 3 (b) (i)); and
i.i. The ICL agrees with the Family Consultant’s assessment that [X] has a positive relationship with each of her parents and her maternal grandparents and that she was observed to have a slightly stronger bond with the mother and the maternal grandparents.
b. Other persons:
i.i. See response to paragraph 30 b above.
33) The extent to which each parent has taken or failed to take the opportunity:
a. To the participate in making decisions about major long term issues in relation to the children (section 60CC (3) (c) (i));
i.i. The Father was provided with an opportunity to participate in obtaining a passport for [X] at the final hearing. Despite signing the passport application at the final hearing, the ICL now understands the Father has withdrawn his consent. The ICL submits it is unlikely the parties will be able to agree on similar long-term issues.
b. To spend time with the children (section 60CC (3) (c) (ii)):
i.i. The ICL submits that on two occasions the Father has not taken up offered time with [X]. One being when a urinalysis test was requested by the Mother in order for time to resume and the other when weekly time was offered by the Mother. The ICL submits in relation to the latter, the distance between the parties was a prohibitive factor.
c. To communicate with the children (section 60CC (3) (c) (iii)):
i.i. The ICL submits both parties have taken up opportunities to communicate with the child.
34) The extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children (section 60CC (3) (ca)):
a. The ICL considers it likely that the Father has not met his obligations to support [X] for the following reasons:
i.The Father was paying minimal child support despite otherwise living a lavish lifestyle.
ii.When this was raised with the Child Support Agency, the Father was found to be earning significantly more than previously acknowledged and his payable Child Support increased significantly.
iii.The Mother asked the Father to contribute to [X]’s swimming lessons and the Father refused to pay unless [X] was in his care in Sydney.
iv.When the Father has purchased items of clothing, shoes or toys for [X], they have been removed from her at the conclusion of his contact and have not been made available for her ongoing use.
v.The Father was unable to point to any other instance of providing financial support for [X].
35) The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from:
a. Either of his or her parents (section 60CC (3) (d) (i)):
i.The ICL submits that the proposed orders will not significantly affect [X] in relation to separation from her Father as the proposed time is not substantially different from the current arrangements and there is scope to return to the current arrangements.
b. Any other child, or other person with whom he or she has been living parents (section 60CC (3) (d) (ii)):
i. N/A
36) The practical difficulty of a child spending time with and communicating with a parent and whether that difficult or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis (section 60CC (3) (e)):
a) The parties live approximately 255kms apart, or 2 hour and a half hours travel by car.
b) The ICL agrees with the evidence given by the Family Consultant at trial that it is not in [X]’s best interests for changeover to occur at Town G as requested by the Father, even with multiple breaks.
c) The ICL submits that this necessitates limitations on the Father’s time with [X] but that this has been the case since separation.
d) In the event the Court agrees the Father’s time with [X] must be supervised, the Father will be required to travel to Canberra to attend at Supervision Centre B unless another service can be agreed.
37) The capacity of:
a. each of the child's parents (section 60CC (3) (f) (i); and
b. any other person (including any grandparent or other relative of the child); (section 60CC (3) (f) (ii):
to provide for the needs of the child, including emotional and intellectual needs:
i. The ICL submits that the Father’s capacity to provide for [X]’s emotional needs is limited for the following reasons:
1) His aggressive and intimidatory behaviour towards the Mother and her family and witnessed by [X] at changeovers and his lack of insight into the effect that behaviour might have on [X] (see paragraph 28 above);
2) The admission by the Father that he ‘acts on emotions’ and does not like people dictating the times and places he can see [X].
3) His giving of toys and clothes to [X] and retrieving them at the conclusion of contact, causing [X] significant upset.
4) His apparent inability to manage interpersonal conflict and deal with his anger appropriately.
ii. The ICL submits the Mother’s capacity to provide for [X]’s emotional needs would be limited if her mental health was to deteriorate or she was to return to previous criminal behaviours.
iii. The parties’ ability to provide for [X]’s intellectual needs is unknown.
38) The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents (section 60CC (3) (i)):
a. The ICL submits that the Father’s attitude to [X] and the responsibilities of parenthood is deficient and coloured by his anger towards the Mother. The ICL submits this is evidenced by the following:
i.The Father’s unwillingness to financially support activities which are likely to benefit [X] including swimming lessons and day care;
ii.The Father’s unwillingness to allow [X] to keep toys and clothes given to her by the Father; and
iii.The Father’s use of FaceTime communication with [X] to berate the Mother.
39) Any violence involving the children or a member of the children’s family (section 60CC (3) (j)):
a. See paragraph 28 above.
40) Whether it would be preferable to make the order least likely to lead to the institution of further proceedings in relation to the children (section 60CC (3) (l)):
a) The ICL submits the orders proposed by her are the least likely to lead to further litigation.
b) The ICL submits it is in [X]’s best interests for the Court to make the orders least likely to lead to the instigation of further proceedings.
ICL’s Recommendations
41) The time that [X] spends with each parent must be considered in light of the ongoing parental conflict, alleged family violence and her relationship with each parent. [X] is still of an age where she is emotionally dependent on the adults who care for her and her optimal development and well-being depends upon having predictable and stable care.
42) The ICL submits the Court cannot, at this time, be satisfied that the Father is not using illicit drugs or misusing prescription drugs or that the Father does not pose a risk to [X] because of his use of family violence, his propensity to act in an aggressive and intimidating manner, and his inability to manage his anger appropriately. For this reason, the ICL’s submits that the Father’s time with [X] needs to be supervised. The ICL has recommended supervision remain in place until such time as the Father can demonstrate he is not using illicit drugs or misusing prescription drugs by way of a hair follicle test to be provided to the Mother.
43) The ICL submits that in the event further conflict arises at changeovers, changeovers also be supervised.
Consideration and disposition
In Mazorski v Albright, a decision to which the ICL briefly referred in her submissions, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Act. Respectfully and gratefully I adopt her Honour’s comments. Brown J said:[2]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2))
[2] (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about the term “meaningful”, as used in Part VII of the Act, in the context of what is comprehended by a “meaningful relationship.” At [20] - [26], her Honour outlined various other points of reference. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[3]
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[3] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Further, and in addition to these comments, it is useful to recall some earlier comments by the High Court in AMS v AIF. For example, in that case, Kirby J simply observed that there is, in parenting cases that involve relocation, a “large element of judgment, discretion and intuition.”[4] In my view, the same sagely simple comment applies essentially to all parenting cases, irrespective of whether or not there is an application regarding “relocation.”
[4] AMS v AIF (1999) 199 CLR 160 at p.211 [150].
In the same case, Hayne J said (internal citations omitted):[5]
[204] The problems that family law legislation deals with are human problems: with all their attendant variety and complexity. And at the end of a court proceeding under such legislation, a judge must make an order - usually an order that says yes or no to some application. "[A] complicated mass of human experience has to be reduced to the simplest possible terms." Because the problems are human problems, because they are as varied and complicated as they are, the legislature speaks in terms more often found in statements of aspiration than legal prescription. It is, then, hardly surprising that the guiding principles prescribed by the legislation for application in cases concerning the guardianship or custody of children or related issues, are principles that seldom, if ever, permit syllogistic reasoning.
[205] Further, when considering the reasons given by a judge who has made an order in an application about the guardianship or custody of children, it is necessary to bear steadily in mind that the judge must grapple with the chaotic complexity of real life, make predictions not only of what he or she concludes may happen in future but also of what will be "best" for the child, and do so having regard to what the parties have chosen to contest or emphasise in the course of the hearing.
[5] AMS v AIF (1999) CLR 160 at p.228 [204] & [205]. Of course, the comments by both Kirby & Hayne JJ are in a legislative context different to that which operates today. Accepting that qualification, respectfully, their Honour’s comments, in my view, are nonetheless important.
Respectfully, the comments of Hayne J are especially apposite in almost all parenting cases. They apply, and are particularly relevant, to the matter currently before the Court.
In the light of these comments and statements of principle, and the evidence provided to the Court, I note the following by reference to the “considerations” in ss.60CC(2) and (3). The following comments should be taken as formal findings by the Court unless otherwise stated.
In my view, [X] has a good and close relationship with both parents. The child’s relationship is developing with the Father.
The Court’s responsibility is, pursuant to s.60CC(2)(b), and in consequence especially of s.60CC(2A), to protect [X] from the conflictual and strained relationship between her parents, and which (at times) also involve her maternal Grandparents.
For the purposes of s.60CC(3)(a) and (b), [X]’s age militates against the Court having any regard to any views (which are not otherwise recorded in any event) she might hold. Here, her actions speak loudest: according to the observations of the Family Consultant, she has a good and close relationship with all the adults in her life. It is also not disputed that the child has always lived with her Mother as her primary carer.
For the purposes of s.60CC(3)(c), (ca), (f) (g), and (i), it is sufficient to note the following:
(a)There is, in my view, a significant relationship differential in play here. By this I mean that, even apart from the disparate allegations against each parent, by personality traits recorded by Ms D and from the Court’s observations during the trial, the parties are polar opposites. The Mother is a diminutive person with a relatively demure and anxious personality. By contrast, the Father is physically imposing and carries himself with a certain, almost brash, bravura and confidence. As restrained as he sought to be for most of the hearing, and as Ms D recorded also, the Father clearly strained and regularly bristled at both the allegations made against him (an understandable reaction) and especially, in so far as they related to the constraints and limitations upon his time with [X].
(b)To repeat: the co-parenting relationship is very strained. There is little trust between all the adults. That said, I take the Mother at her word that she holds no bitterness towards the Father, accepting that she has yet to trust him fully. She acknowledged that she did not think that he would ever harm [X], or deliberately place her in any danger;
(c)These personality issues, in my view, compounded the parties’ regular inability to have proper regard to the immense limitation upon everyone – especially [X] – which the physical distance between the parties imposes. While a consideration in its own right under s.60CC(3)(e), issues of practical difficulty and the expense of travel weigh heavily upon the parties and their capacities to co-parent, particularly regarding the matters set out in the sub-paragraphs to which I have referred.
I am very conscious of the historical allegations of domestic violence between the parties, recounted earlier in these reasons. The ongoing hostilities at changeovers further corrodes any immediate out-break of peace between the warring parties. The maternal Grandfather properly conceded some action on his part that likely provoked the situation on an occasion or two with the Father. Likewise, the Father properly acknowledged how his actions, on occasions, at changeover and some other times recorded above, were likely both to undermine trust and to cause ongoing friction.
While I am not quite as pessimistic as the ICL appears to be (who, respectfully, seemed at times to take a rather more anti-pathetic and subtly antagonistic disposition towards the Father rather than a more measured and “independent” position and “tone”), in my view the Orders proposed by her are in [X]’s best interests, all things considered. Among other things, they provide for “stepping stones” in the increase in [X]’s time with her almost doting Father. That is as is should be. It will be recalled that Ms D recommended an increase in the Father’s time, subject to any other findings, and subject to [X]’s age. All such Orders here are, as always, subject to any other agreement between the parties in writing.
I take this opportunity to caution all adults in [X]’s life of the need to remain respectful of each other, and when the risk of time, distance, heat, exhaustion and all other features of daily life venture to appear and cause possible disturbance, take a deep breath and think of what is in [X]’s best interests.
The only alteration I would make regarding granting the Mother sole parental responsibility (which obviates the need to consider s.65DAA) is that she is required firstly to seek any input from the Father regarding any major long-term issue. Secondly, once made, she is to inform, and to keep the Father informed, of any major long-term decisions regarding the care and welfare of [X]. Once she reaches school age, subject to any other Orders, the Father should be entitled to receive all notices, reports and the like directly from the school, as well as being able to attend any relevant gathering, show or production at [X]’s school or pre-school.
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 18 December 2019
0
7
2