TRITTON & RYAN

FAMILY COURT OF AUSTRALIA

TRITTON & RYAN

[2019] FamCA 929

FAMILY LAW – CHILDREN – With whom a child should live and spend time – Where the mother seeks the child live with her in the EE Region NSW, that she have sole parental responsibility, and that he spend alternate weekends (one in the EE Region and one in the FF Region) and half school holidays with the father – Where the father seeks that the child live with him in Town B NSW, equal shared parental responsibility, and the child spend alternate weekends (one in the EE Region and one in the FF Region) and half school holidays with the mother – Where the mother alleges that the father has perpetrated family violence against her including making threats to kill the child, that he raped and strangled her, and that he sexually abused the child – Where despite her allegations the mother supports the child spending substantial unsupervised time with the father and could provide no adequate explanation to support her position – Where the father denies, save for one occasion, perpetrating family violence against the mother or abusing the child at all – Where there are many inconsistences in the mother’s evidence and a significant body of evidence contradicting her evidence – Where the Court finds that, save for one occasion, the father has not perpetrated family violence and is not an unacceptable risk to the child – Where the mother has repeatedly interfered with the child’s relationship with his father – Where the father has demonstrated consistent commitment to the child and supports the child’s relationship with the mother – Where the mother concedes she cannot communicate with the father such that an order for equal shared parental responsibility is not appropriate – Where the father will have sole parental responsibility, with an obligation to consult, the child will live with him and spend alternate weekends (one in the EE Region and one in the FF Region) and half school holidays with the mother.

Family Law Act 1975 (Cth)

Baghti & Baghtiand Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Colgan & Colgan [2014] FamCA 828
Johnson & Page (2007) FLC 93-344
Jones v Dunkel (1959) 101 CLR 298
M & M (1988) 166 CLR 69
Mahoney & Houston [2018] FamCA 71
N and S and the Separate Representative (1996) FLC 92-655
State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq) (1999) 160 ALR 588

APPLICANT:

Mr Tritton

RESPONDENT:

Ms Ryan

INDEPENDENT CHILDREN’S LAWYER:

Ms Ross

FILE NUMBER:

LEC

420

2016

DATE DELIVERED:

5 December 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

23 - 25 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms C. Smith

SOLICITOR FOR THE APPLICANT:

Trenches McKenzie Cox

COUNSEL FOR THE RESPONDENT:

Ms L. Barnes

SOLICITOR FOR THE RESPONDENT:

Everyday Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms R. Lyons

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Order

All previous parenting Orders be discharged.
The father have sole parental responsibility for the major long term issues (as that term is defined in s 4(1) of the Family Law Act 1975 (Cth)) for the child X born … 2014.
Prior to making a decision about a major long term issue the father shall:
(a)       Inform the mother about the decision to be made;
(b)       Consider any response provided by the mother; and
(c)       Inform the mother of the decision and the reasons for it.

Time with the parents

The child shall live with the father forthwith.
The child shall spend time with the mother at all such times as may be agreed in writing between the mother and father and failing agreement as follows:
(a) During school term on each second weekend of a four weekend cycle from 6.30pm Friday until 4.00pm Sunday with changeovers to be at Town E Service Station or such other place as agreed in writing between the parents;
(b) During school term on each fourth weekend of a four weekend cycle from after school Friday until 6.00pm Sunday in the FF Region of NSW with changeovers to be at Town B McDonalds (F Street) or such other place as agreed in writing between the parents.
In the event that the mother relocates to Town B, the child shall spend time with the mother during school term at all such times as may be agreed in writing between the mother and father and failing agreement, each alternate weekend from after school Friday until before school Monday with changeovers to occur at the child’s school.
This Order shall be suspended for the weekends during any school holiday period (which shall be deemed to include the first weekend after the school term ends and the weekend before school recommences) and shall recommence on the second weekend after the school term recommences.
The mother shall confirm by text message to the father at least 24 hours prior to the changeover her intention to exercise the time provided in 5(a) and (b) herein and in the event that the mother has not confirmed the time then the father shall not be required to deliver the child.
In the event the mother and father are in the same geographical area over the Christmas period (i.e. between Christmas Eve and Boxing Day) then the child shall spend time with his parents at such times as may be agreed in writing between the mother and father and failing agreement as follows:
(a) From 5.00pm Christmas Eve until 2.00pm Christmas Day in even numbered years with the father and in odd numbered years with the mother; and
(b) From 2.00pm Christmas Day until 5.00pm Boxing Day in even numbered years with the mother and in odd numbered years with the father

Collection and delivery

Except as otherwise ordered herein or as may be agreed in writing between the mother and father changeovers shall occur as follows:
(a)       For any agreed periods of time the child is to spend with the mother in the FF Region of NSW then changeovers shall take place at Town B McDonalds (F Street);
(b)       For all school holidays (for so long as the mother remains living on the EE Region of NSW) or other times when the child's time with the mother is to be spent outside the FF Region of NSW then changeovers shall take place at Town E Service Station;
(c)       Over the Christmas period referred to in (9) herein, the parent with whom the child is not living for the first half of the holidays shall collect and return the child to the other parent.
For the purposes of this Order the school holiday time shall commence:
(a)       when a parent's time falls in the first half of the holidays, from after school on the last day of term until 5.00pm on the day calculated to represent half of the holidays;
(b)       when a parent's time falls in the second half of the holidays, from 5.00pm on the day calculated to represent half of the holidays until before school on the first day of term;
(c)       school holidays shall be deemed to commence after school on the last day of term and conclude before school on the first day of term and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the mother shall retain the additional night.
The parent with whom the child is living on Christmas Day shall facilitate a FaceTime call between the child and the other parent between 6.00pm and 6.30pm on Christmas Day unless the child is spending time with each parent over the Christmas period.

IT IS FURTHER ORDERED BY CONSENT THAT

The child shall spend time/live with his parents for school holiday periods at all such times as may be agreed in writing between the mother and father and failing agreement as follows:
(a) The first half of the Autumn, Winter, Spring and Summer school holidays in even numbered years with the father and in odd numbered years with the mother; and
(b) The second half of the Autumn, Winter, Spring and Summer school holidays in odd numbered years with the father and in even numbered years with the mother.
The child shall spend time with his parents on special occasions at all such times as may be agreed in writing between the mother and father and failing agreement as follows:
(a)       on the birthday of the child with the parent he is not living with on the day:
(i)if a school day, from after school until 6.00pm;
(ii)if a non-school day, from 1 pm until 6.00pm;
(iii)with that parent to be responsible to collect and return the child from the other parent’s residence;
(b)       with his father for Father's Day weekend, and if this is a weekend when the child would normally be spending time with the mother she shall be entitled to make up time the next weekend;
(c)       with his mother for Mother's Day weekend (if a non-contact weekend) from 6.30pm Friday until 4.00pm Sunday if the mother nominates changeover at Town E, or if the mother chooses to spend this time in the FF Region of NSW from after school Friday until before school Monday.
The child shall communicate with his parents on FaceTime at all such times as may be agreed in writing between the mother and father and failing agreement:
(a)       Between 6.00pm to 6.30pm each Wednesday with the parent he is not spending time with;
(b)       On the child's birthday between 6.00pm and 6.30pm if he has not been able to spend time with the other parent in accordance with 13(a) herein;
(c)       On each parents’ birthday between 6.00pm and 6.30pm if the child is not already spending time with that parent in accordance with the Order;
(d)       and in relation to FaceTime communication each parent shall:
(i)ensure that the child is available to receive the call;
(ii)arrange for the child to call the other parent on the following night if, for any unforeseen circumstances, the child misses the call from that parent; and
(iii)ensure that the child has privacy during the conversation.

Exchange of information

The mother and father shall:
(a)       Keep the other parent informed at all times of their residential address, contact telephone number and email address and advise the other parent of any intended change at least 24 hours prior;
(b)       Keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the child, and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child;
(c)       Inform the other parent as soon as reasonably practicable of any significant health issue, or illness suffered by the child.
The parents do all acts and things necessary to authorise the school attended by the child to give each parent information about the child's educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child (at the requesting parent's cost).
Each parent be entitled to attend any school events, extracurricular activities, and any other activity of the child that it is usual for parents and/or extended family/friends to attend.
During the time the child is with either parent, that parent shall:
(a)       respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)       speak of the other parent respectfully;
(c)       not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
The mother be restrained from referring to the father as "[Mr Tritton]" when speaking about the father to the child or in the hearing or presence of the child, and shall refer to the father as "Dad", "Daddy" or "X's Dad" and shall use her best endeavours to ensure that others refer to the father as "Dad", "Daddy" or "X's Dad" and not "[Mr Tritton]" in the presence or hearing of the child.
Neither parent shall physically discipline the child nor allow any other person to physically discipline the child.
Both parents shall remove the child from any situations of family violence.
In the event that the mother is unable to care for the child for a period greater than 24 hours during a time that the child is spending time with her, the father shall be given first option to care for the child.
The process to be used for resolving future disputes about the child or the terms or operation of this Order shall be as follows:
(a)       The Family Relationship Centre shall be appointed as Family Dispute Resolution Practitioner.
(b)       The parents shall consult with the Family Dispute Resolution Practitioner at the Family Relationship Centre to assist with resolving any dispute in relation to the child or reaching agreement about changes to be made to the parenting arrangements for the child.
(c)       They shall pay the costs of the Family Dispute Resolution Practitioner equally.
(d)       In the event that they are unable for any reason to have an appointment with the Family Dispute Resolution Practitioner and cannot agree on an alternate Family Dispute Resolution Practitioner, the mother shall nominate 3 practitioners and advise in writing details of their fees, experience and availability.
(e)       The father shall choose one of the listed practitioners within 7 days of receipt of the list.
(f)        If the father fails to choose them the mother may choose.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 420 of 2016

Mr Tritton

Applicant

And

Ms Ryan

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Mr Tritton and Ms Ryan are the parents of X aged five. X currently lives with his mother in Suburb K near City CC on the EE Region of New South Wales while his father lives in Town B in the FF Region of New South Wales. Their homes are about eight hours drive apart. X lives with his father in Town B from Thursday to Tuesday each alternate week and with his mother the remainder of the time. The parents cannot agree about what parenting arrangements should be in place for the future.
The mother alleges that the father engaged in extreme family violence during her relationship with him and threatened to kill himself and the child towards the end of the relationship. Notwithstanding these serious allegations, the mother proposes that the child spend alternate weekends and half holidays with the father. The mother also says she believes that the father has sexually abused the child since separation. Despite this stated belief the mother does not propose that the father’s time with the child be supervised.
The father denies the mother’s allegations against him and submits that despite the mother’s position at trial, she will do and say anything to eventually remove him from the child’s life.
For the reasons which follow, I have determined that it is in the child’s best interests to live with his father and spend alternate weekends and half holidays with his mother. I also find that the father should have sole parental responsibility for major long terms issues concerning the child.

Issues

The following significant issues were identified with the assistance of the parents and the independent children’s lawyer (“ICL”):
a)Has the father perpetrated family violence upon the mother and/or child and if so, what impact does that have on his future parenting capacity?
b)What is the impact of the mother’s alleged behaviour post separation e.g. allegedly leaving the child for extended periods with a third party, and the impact of her allegations against the father, on her future parenting capacity?
c)Does either parent have the capacity, or a better capacity, to foster a future meaningful relationship between the child and the other parent?
d)Does either parent have the capacity, or a better capacity, to protect the child from exposure to conflict?

Proposals

The father proposes that the child live with him in Town B and spend alternate weekends with the mother (one in Town B and one near City CC) and half school holidays. The father proposes that the parties have equal shared parental responsibility for major long term issues.[1]
[1] The precise order sought by the father is set out in his case outline filed 16 October 2019 (leave was granted at the commencement of the trial for the father to substitute the order sought in his case outline with the order sought in his Initiating Application).
The mother proposes[2] that the child live with her in Suburb K and spend alternate weekends with the father (one near City CC and one in Town B) and half school holidays. The mother proposes that she have sole parental responsibility for major long term issues.[3]
[2] At the commencement of the trial the mother was granted leave to amend her Response by substituting as the order sought by her, paragraphs 7 to 23 (inclusive) of page 7 of the order sought by the father (in the alternative) set out in his case outline document filed 16 October 2019. At the conclusion of the trial the mother further amended the order sought to seek an order in her favour for sole parental responsibility for major long term issues.
[3] The precise order sought by the mother is set out in exhibit 15.
At the conclusion of the trial the ICL recommended that the child live with the father and spend alternate weekends with the mother as proposed by the father. The ICL also recommended that the parents have equal shared parental responsibility for major long term issues.[4]
[4] The precise order sought by the ICL is set out in exhibit 14.
Before turning to consider the issues it is useful to consider some background to the dispute.

Background

The father and mother married in 2016 having lived together since 2012. Their relationship commenced in 2010. They married in 2016 and separated shortly thereafter in 2016 and divorced in 2017. They have one child, X born in 2014.
The father is 30 years of age and works in retail. He is also has qualifications in hospitality. He lives alone in a rented property in Town B.
The mother is 27 years of age and not employed. The mother married Mr L, aged 48, in 2018. The mother described Mr L’s occupation as that of a handyman in his own business. Mr L says that he works in property maintenance. The mother and Mr L commenced living together in or about late 2017.
Throughout their relationship the parents lived in Town B. The father was born in Town B and his extended family, including his parents, live there. The mother moved to Town B from the EE Region of New South Wales in March 2010 to live with her sister, Ms C. The mother says that she was brought up in a “loving and safe home environment” with her parents and younger sister, Ms BB.
In April 2016, the mother travelled to the EE Region of New South Wales with the child. When it seemed to the father that the mother may not be returning, he travelled to the maternal grandmother’s home and discovered that the child had been left with the maternal grandmother. He retrieved the child and returned with him to Town B. Police were involved but their records indicate that both parents agreed to the child returning to live with the father in Town B. The mother also returned to the father in Town B and the marriage continued.

On 22 May 2016, the mother made very serious allegations of violence against the father. A temporary protection order was made against the father on 24 May 2016 and on 22 September 2016 the father consented, without admission, to a final apprehended domestic violence order (“ADVO”) which expired in September 2017. There is no current ADVO.
On 14 June 2016, the mother travelled to the EE Region with the child, ostensibly due to her grandfather having suffered a stroke. When the mother and child failed to return as agreed, the father commenced legal proceedings. Sometime in about late June 2016 the father spent time with the child briefly on two occasions, under the supervision of the mother.
The mother and the child lived with the maternal grandmother on the EE Region of NSW until November 2016. The mother then obtained rental accommodation at Suburb AA, about an hour south of City CC, NSW. By about late November 2017 the mother was spending significant time with her current husband in Suburb K, about forty-five minutes north of Suburb AA before relocating there permanently no later than early 2018. Suburb K is about thirty minutes west of City CC.
The father spent time with the child under the supervision of the paternal grandmother on 17 and 18 August 2016.
On 19 August 2016, the father’s interim application for the child to be returned to Town B was heard and judgment reserved.
On 23 September 2016, the father’s interim application was dismissed but he was permitted to spend supervised time with the child for two hours on two consecutive days each month in Town B at a contact centre and to call the mother each Wednesday and Sunday evening to speak with the child.
The father’s offer to pay for supervision at another centre (due to the waiting time at the first one) was declined by the mother.
On 27 November 2016 the father spent his first time with the child at the contact centre pursuant to the order. The father and child spent time together each month until May 2017.
On 24 February 2017, charges against the father for breaching the ADVO were dismissed after a defended hearing.
On 1 June 2017, the father’s time with the child was varied by order so as to take place at a contact centre near the mother in City CC. The father’s offer to pay for supervision at a different centre (due to the waiting time at the first one) was declined by the mother.
On 15 September 2017, the father and child spent their first time together pursuant to the 1 June 2017 order.
In early 2018 the mother consented to the father spending unsupervised time with the child each four weeks on the EE Region on a Friday and Saturday. The mother then became uncontactable which led to a delay until April 2018 before the unsupervised time commenced.
On 30 August 2018, the mother and father consented to an order that they have equal shared parental responsibility and for the father to spend unsupervised overnight time with the child each alternate Thursday morning to Tuesday morning in Town B commencing on 1 November 2018. Up until this time the father made the 18 hour round trip each month in order to spend time with the child. There were occasions between April 2018 and 1 November 2018 when the mother did not provide the child to the father and did not tell the father prior to his journey.
In May 2019, the mother made allegations against the father of sexually abusing the child and suspended the father’s time with the child for the period 18 May to 18 July 2019.
After an interim hearing on 18 July 2019 the father’s time with the child recommenced in accordance with the order made on 30 August 2018.
The child attends J School when living with the father and G School when living with the mother.
The father pays child support pursuant to a child support assessment of $50.00 per week.

Applicable legal principles

In all parenting cases the Court is required to apply the Statutory provisions set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). Part VII sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[5]
[5]Family Law Act 1975 (Cth), s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
a)The person or persons with whom a child is to live;
b)The time a child is to spend with another person or other persons;
c)The communication a child is to have with another person or persons; and
d)The allocation of parental responsibility for a child.
The objects and principles of Part VII of the Act are set out in s 60B (1) and (2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family etc. (s 60CC).
In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).
Family violence is defined in s 4AB and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.
In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding” and proof to the reasonable satisfaction of the court “should not be produced by inexact proofs, indefinite testimony or indirect inferences”.[6] Where it is not possible to positively reject an allegation as groundless the Court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[7] The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard” although “a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof”.^[8]
[6] M & M (1988) 166 CLR 69 citing Briginshaw v. Briginshaw (1938) 60 CLR 336 at 362 per Dixon J.
[7] M & M (supra); N and S and the Separate Representative (1996) FLC 92-655.
[8] See Johnson & Page (2007) FLC 93-344 at [68], [71].
The Court is not required to make findings of fact on every factual dispute raised by the parties.[9] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive determination” on each and every factual dispute.[10]
[9]Baghti & Baghtiand Ors [2015] FamCAFC 71.
[10]M & M (1988) 166 CLR 69.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any Order made by the Court (s 61C).
Section 61DA provides that when making a parenting order, 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. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.[11]
[11]Banks & Banks (2015) FLC 93-637.
I turn now to consider the identified issues in the context of the applicable law.

Has the father perpetrated family violence upon the mother and/or child and if so, what impact does that have on his future parenting capacity?

The father denies all allegations made against him and submits they are a fabrication or an exaggeration.
The father admits to only one occasion of family violence. He says he slapped the mother across the face once with an open hand in January 2012 during an argument about the mother’s alleged infidelity. The father says of this incident – “I was shocked at my own actions and immediately apologised and walked away.” The father denies there was any mark on the mother as a result of his slap.
The mother does not refer in her evidence to any incident involving the father slapping her face at this particular time although she does make general assertions of the father having slapped her face and to a text message from the father stating - “It was only a little slap, it wasn’t hard and I’m sorry.” The mother does not identify a date for that text message nor was that text message tendered. The mother annexed to her affidavit an undated Facebook message from the father to her in which he acknowledges that he did slap her but that it “hasn’t happened for 2 -3 years” and accepted that it “shouldn’t have happened”.
The mother’s only allegation proximate to this time involved an occasion when the father allegedly slapped her on the leg and a subsequent occasion when he “pushed [her] face into his car window”.
Both parties agree that the mother spent about two weeks with her mother in February 2012. The maternal grandmother also refers to the mother spending time with her in February 2012 and says the mother told her the father had “pushed her face into the glass of his car window” and that the mother had a “mark on the side of her face which later turned into a bruise”.
The mother’s other allegations of family violence against the father are extensive and include:
a)He subjected her to controlling and coercive behaviour throughout the relationship;
b)He isolated her from family and friends;
c)He locked her and the child in their unit on ten to 20 occasions between April and May 2016;
d)He physically abused the child on six specific occasions;
e)He raped the mother in 2016;
f)During the rape, he strangled her to the point where she believed she would die;
g)He threatened to kill himself and the child if the mother left him; and
h)After separation, he stalked the mother and breached an ADVO on repeated occasions.
A number of the allegations made against the father are at the extreme end of the violence spectrum and if I find that the father has committed the acts and made the threats alleged against him it would seem unlikely, in the circumstances, that I would be able to find he did not pose an unacceptable risk to the child. The mother does not retreat from any of her allegations yet proposes that the father spend regular unsupervised time with the child.
Despite the mother’s position, this is a case where my findings about her allegations are likely to have a significant impact on what parenting order I make. It is therefore necessary to consider the evidence in relation to the allegations very carefully.

Controlling and coercive behaviour and isolating the mother

The mother’s allegations in relation to the father being coercive and controlling include the following:
23.From the very beginning of the relationship with [Mr Tritton], I would describe him as being a very jealous, controlling and violent man.
24.[Mr Tritton] checked my phone daily to see who I had been talking too (sic) and what I had been saying and would constantly read my Facebook messages multiple times a day.
25.[Mr Tritton] also made it extremely hard for me to talk to family and friends and when I was on the phone to them, [Mr Tritton] would follow me around yelling at me so that my friends and family could hear, asking me what I was saying about him and calling me a “slut” and other derogatory names. …
…
33.Around/after the time X was born, my family only saw him five (5) times, which included our wedding. This was because [Mr Tritton] would not allow my family to come and stay and visit him. He would also not allow me to take X to visit them. [Mr Tritton] was very controlling and abusive toward me.
…
35.In April 2016 I went to Brisbane to visit my aunty and uncle and when I got home [Mr Tritton] was convinced I had been seeing another man. I was in the shower when he demanded that I allow him to do a vaginal examination of me. I told him no, but he was relentless and said that my refusal to allow him to check me was because I had something to hide. I feel ashamed to say it but he eventually did insert his fingers into my vagina to see if he could feel if I had sexual intercourse with someone. He also took my underwear from the bathroom floor to examine it. I felt ashamed, humiliated and violated.
…
70.[Mr Tritton] also used to check my phone daily, control the household finances and constantly looked into my Facebook account on his mobile phone to watch what I was doing and who I was messaging.
The father denies the mother’s allegations. The father concedes that there were arguments during the relationship about the mother’s alleged infidelity but denies he engaged in family violence.
In relation to the father accessing the mother’s Facebook account, the father says that the mother logged into her Facebook account on his phone which enabled him to view an exchange between the mother and her sister on 22 May 2016. The exchange (from March 2016) suggested that the mother may have been having an affair with a Mr O. During the mother’s oral evidence she said that she had given the father her Facebook log in details, although she said she had done so in response to a demand from the father.
The maternal grandmother, Ms D, gives the impression in her affidavit that she and the mother spoke frequently on the telephone, which is at odds with the mother’s evidence that the father virtually cut her off from her family. Ms Ryan says that she and the mother “could never talk for long once [Mr Tritton] had returned from work as he would follow her around trying to listen to her conversations. I would often hear [Ms Ryan] say ‘no [Mr Tritton], she didn’t say anything about you’”. Ms Ryan makes no mention of hearing the father yell at the mother (save for calls in April/May 2016) or call the mother derogatory names and in particular the word “slut”. In April and May 2016, Ms Ryan says she had “multiple conversations over the phone” with the mother and that during some of these conversations “I would be able to hear [Mr Tritton] screaming at [Ms Ryan] while she was on the phone to me and would also be able to hear X crying”. Unfortunately no particulars of what she heard are provided. Ms Ryan’s evidence is almost entirely what she says the mother told her.
The father’s sister, Ms A Tritton, contradicts the mother’s evidence of being controlled by the father and says that it was, in fact, the mother who was controlling of the father. It is common ground that the mother and Ms A Tritton were close friends up until the birth of the child in 2014 and that thereafter their friendship waned.
Ms A Tritton says that during the period from March 2010 until July 2014 she usually met the mother “about twice each week for about a 4-hour period while [Mr Tritton] was present” and that she met the mother alone “at least 3 times each week for about a 6-hour period each time.” She also says that she “spoke to [Ms Ryan] on the telephone or texted her 50+ times per day, every day of the week.” In particular, she says:
7.At no time during our many talks and meetings whilst alone did [Ms Ryan] ever tell me about any problems or concerns she had about [Mr Tritton] or about any violence or controlling behaviour from [Mr Tritton].
…
11.[Ms Ryan] made it known to everyone around her that she had [[Mr Tritton]] wrapped around her little finger. If she didn’t get her way, she would also let everyone know, especially [Mr Tritton]. [Ms Ryan] would often say to me words to the effect of “I love how [Mr Tritton] does everything for me. Whatever I want, I get”
12.[Ms Ryan] rarely let [Mr Tritton] go to family occasions, such as birthdays, family dinners, Christmas, etc, including when our older brother was home from his job in Queensland. [Ms Ryan] said to me words to the effect of “My family lives so far away that I cant (sic) attend all their events so if I can’t spent special times with my family, I don’t think [Mr Tritton] should be able to either”.
13.… My 21^st birthday party was held in 2015 … [Mr Tritton] came by himself. … [Mr Tritton] said to me words to the effect “I am only allowed to stay for one hour – [Ms Ryan] said so. I can’t stay to cut the cake or to give a speech. I will be in big trouble with [Ms Ryan] if I am not home on time”.
Ms A Tritton’s evidence was not challenged. Her portrayal of the mother is completely at odds with the mother’s evidence of being subjected to coercive and controlling behaviour by the father from the commencement of her relationship with him. It also seems inconceivable that the mother would not have given any hint about her allegedly violent relationship with the father to such a close and attentive friend over four years.
On 5 August 2014 the mother undertook a psychosocial assessment at the Town B Hospital. The information provided records that the mother has “good family support” and “no DV identified – info given”. While a denial of domestic violence does not necessarily mean it did not exist (I accept that victims may be ashamed or fearful of disclosing family violence), the information provided by the mother is at odds with her portrayal of the father in these proceedings.

Being locked in the house

The mother alleges:
36.[Mr Tritton] was always a very jealous man and because he believed I was unfaithful he started locking me in the house from about mid-March 2016 so that I couldn’t see another man. He has locked me and X in the house about 10-20 times. He would lock the security door from the outside and take the key when he went to work. …
Mr M was a neighbour of the parents from June 2012 until they separated. He lives in the unit next to the one they occupied during their relationship. He remains a neighbour of the father. Mr M says that he was usually home from 2.00pm to 5.30pm and from 11.00pm to 7.00am each weekday and usually all day/night Sunday. He works as a bus driver. He says:
2.The units are designed so as to not be very sound proof … The entire time I have lived next door to [Mr Tritton] and [Ms Ryan] I have never heard anything such as a fight or argument of any kind.
3.… If one is locked into the unit, I am home during the afternoon and would hear it if someone was wanting to get out. Anyone can easily climb out of the main bedroom or bathroom windows.
4.[Ms Ryan] had her own set of keys to her unti (sic) and she would give me her set when [Mr Tritton], [Ms Ryan] and X would go on holidays or away for the weekend so I could care for their cats.
5.About 2 to 3 times each week, I used to drop in at random times of the day to see X, [Mr Tritton] and [Ms Ryan] some of which times [Mr Tritton] was at work and stayed to chat for about ½ hour at a time. [Ms Ryan] always answered the door and was never locked inside the house. I observed [Ms Ryan] have friends over to the unit at least a dozen times after X was born.
Mr M’s evidence was not challenged. The landlord for the property confirms that she provided two sets of keys at the time of rental.
The mother gave no explanation as to how the father was able to lock her in the unit when she had her own keys and why she would not have escaped out the window. Nor did the mother explain why she did not use her mobile phone or computer to seek assistance. The mother’s sister lived nearby as did at least one of her friends.

Abuse of the child

The mother’s allegations against the father include the following:
a)Shaking the child on in 2015 when the child was fifteen months of age;
b)Squeezing the child’s cheeks on 11 December 2015 really hard between his fingers until the child began to cry;
c)Squeezing the child’s cheeks on Christmas Day 2015 and then slapping the child across his right cheek;
d)Throwing the child against the living room couch repeatedly on 15 February 2015 and at one point the child bounced off the couch and fell to the floor;
e)Throwing the child down harshly on a surface on 1 March 2016 causing the child to cry;
f)Smacking the child across the chest on 8 May 2016 and then tightening the child’s car seat belt causing a mark on the child.
The allegations are alleged to have occurred when the child would not do as he was told or as a result of the child being upset.
The maternal grandmother says that she saw the father on Christmas Day 2015 slap the child across the right hand side of his face.
The father denies ever hurting the child as alleged or at all. The father maintains that the child responded to simple direction and never required physical discipline. He concedes that the child may have got a mark as a result of struggling in his car seat but denies it occurred in the circumstances described by the mother.
During cross-examination the mother made the following concessions:
a)On the occasion that she says the father shook the child, it may have been overly energetic play;
b)On the occasion that she says the father repeatedly threw the child on the couch, it is possible that the father was engaging in very rough play and she accepted that the father did not mean for the child to fall to the floor;
c)On the occasion that she says the father threw the child harshly onto a hard surface, she was not present to see anything.
The mother’s speculation about what happened in her absence was entirely unconvincing. For example, she says that she assumed the father had thrown the child onto the hard surface of the change table, yet it was common ground that the change table had a foam covering.
The mother’s allegations of the father’s callous violence towards the child, supported by the maternal grandmother in one instance, is at odds with the independent evidence of his caring and appropriate interaction with the child and his history of commitment to the child e.g. driving 18 hours each month to spend four hours with the child.
In my view it is more likely than not that if the mother and maternal grandmother saw anything at all as described by them they have exaggerated the incident/s.

Rape and strangulation allegation

The mother alleges in her affidavit that:
57.On Saturday, 21 May 2016 [Mr Tritton] and I had been fighting for about three hours on and off about our relationship issues. In between the arguments [Mr Tritton] was pressuring me for sex and telling me that me not having sex with him enough was a part of our relationship problems. Once in bed, [Mr Tritton] again asked me for sex. I was lying flat on my back and he pulled my pants down, and then pulled (sic) underwear down before removing his own underwear. He proceeded to have sex without my consent. During sexual intercourse [Mr Tritton] placed both his hands around my throat and squeezed as if to strangle me. I put both of my hands on his hands and began trying to pull his hands away from my throat. As I was trying to pull his hands away from me, he tightened the grip of his hands on my throat whilst continuing to have intercourse. I tried to get out from underneath him at the same time as I was continuing to pry his hands away from my throat. I began to feel lightheaded and feared that he may not let go and that he may kill me. I was fearful for my life and had no idea when or if he would stop choking me I was unable to speak to ask [Mr Tritton] to stop and take his hands off me and stop having sex with me, but I tried with all the strength I had to pry his hands off my throat and to push my legs against him in the hope he’d let go.
58.At the conclusion of intercourse, [Mr Tritton] released his grip on my throat and I spluttered for air and did my best to regain my breath.…
[emphasis added]
The mother says that about an hour after the incident described above she took a photo of her throat which she says was “quite red”. The photo is exhibit 8 in the proceedings. The photograph does not corroborate the mother’s evidence. What is apparent is a slight pink discolouration at about the ‘Adam’s apple’. It seems unlikely, if the father placed both his hands around the mother’s throat and squeezed with such force as to cause her to become lightheaded and believe she was going to die, that there would not be some more significant mark on the mother’s throat other than that evidenced by the photo.
During cross-examination, the mother was taken to the application for an ADVO in which it is recorded that the mother told police she had consented to have sex with the father. The mother admitted telling police she had consented. The mother sought to overcome this obvious inconsistency in her evidence by stating that she had asked the father to stop during intercourse but he refused. The mother was then taken to the next line of her account to police in which she told police that she was “not able to tell him to stop as she could not breathe properly and she was unable to push his hands away”. The mother then said, rather unconvincingly:
At that point in time I couldn’t tell him to stop, no, once he had already started doing it. But I had previously asked him to stop before that event occurred.
In the records produced by police in relation to this alleged incident the mother told police:
The [mother] believes that this choking could possibly be part of the sexual intercourse performed by the [father]. The [mother] stated that she does not wish for any charges to be laid against the [father], she is just requesting the AVO. … Police did not observe any physical injury on the [mother], however have obtained a copy of the photograph that shows a small red mark on her neck. No medical treatment was required. …
It is common ground (although not volunteered by the mother), that on 18 May 2016 the mother had replied to a comment on a ‘Facebook group about “everyone’s kinks” stating in three comments: “spanking and choking” and “hair pulling too” and “just really rough and treat me like a piece of shit.” The father denies ever engaging in such behaviour with the mother.
The mother contends that in 2016 she told a friend, Ms H, and her sister, Ms C, about the rape and strangulation the night before. Neither Ms H nor Ms C were called as witnesses in the mother’s case. I infer that their evidence would not have assisted the mother.[12]
[12]Jones v Dunkel (1959) 101 CLR 298.
The maternal grandmother says that the mother spoke to her on the 22 May 2016 and told her that the father “had attempted to strangle her while they were having sex”. The mother did not make any complaint of rape to her mother.
In a letter relied upon by the mother from Ms P dated 14 July 2016 she says that the mother told her “that on one occasion her husband had attempted to strangle her”. The mother did not make any complaint of rape.
In the records produced from Family and Community Services NSW (“FACs”) the mother is reported to have contacted FACs on an unspecified date but prior to 11 October 2016 (being the date on which the record was generated) in which she claimed that she had reported the father to police for trying to strangle her while having sex. The mother also told FACs that the father was being charged with sexual assault as a result of the incident. Contrary to this evidence, no charges were ever brought against the father and there is no evidence the police ever considered bringing charges. The only reference to charges comes from the police records in which the mother said she did not want any charges laid against the father.
The father denies that he and the mother argued the night of 21 May 2016. He says he did not get home until about 9.00pm and he and the mother cuddled on the lounge while watching a video. He says that he went to bed at about 11.00pm but the mother stayed up watching the video until about 12.30am and that they were ‘texting’ each other from different rooms. Exhibit 3 is their text exchange commencing at 10.56pm. The mother did not dispute the text exchange. There is nothing in the text exchange indicating an argument. The father says that he and the mother had consensual sexual intercourse when the mother came to bed. He denies choking the mother or harming her in any way.
The father says that the following morning, 22 May 2016, he saw an exchange that the mother had had with her sister dated 13 March 2016 in which there was mention of the mother “fucking” Mr O and a comment about how “sexy” he was. The father says that he did not say anything to the mother about what he had seen and went to work. Later in the morning he sent the mother copies of the messages he had seen and he and the mother engaged in a series of text communications between about 9.23am and 2.32pm on 22 May 2016. The mother denies “fucking” [Mr O] and says she was “just fucking around with Ms BB” (her sister). Commencing at 12.29pm the following text exchange between the mother and the father occurs:
Father: R u coming to get your stuff Or r u going to come home?
Mother: It depends
Father: On?
Mother: you need to take that add (sic) down. You also need to stop telling people I’ve been cheating on you because I haven’t and I will have you charged with deformation (sic) of character
The father said during cross-examination that the reference to the ‘add’ related to an advertisement for the sale of a car.
The mother did not dispute the date of the Facebook post about Mr O i.e. 13 March 2016 or that the father first saw it on 22 May 2016. It is therefore difficult to reconcile the mother’s claim that the father was always checking her Facebook posts.
The police records show that the mother first contacted them at 11.00am on 22 May 2016. The mother engaged in text communication with the father both before and after that time and her complaint to police was made only after the father accused her of infidelity.

Threats to kill himself and the child

The mother alleges in her affidavit that:
53.[On 13 May 2016] … [Mr Tritton] made a very chilling statement that he would take his own life if I left him and possibly take X’s life as well. …
…
He said: That’s what will happen because what purpose will I have then, and if you’re not lucky I will take X with me too.
54.On 16 May 2016 … he again began to tell me if I was to leave him, he was going to kill himself.
The father denies ever making any threat to kill himself or the child. The father was not cross-examined about the alleged threats.
The mother made no complaint to police during her interview with them on 22 May 2016 that the father had threatened to kill himself or the child on 13 May 2016 or 16 May 2016 or at all. It seems inconceivable that the mother would not have told police of such serious threats if they had been made.

Stalking and breaching ADVO

The mother alleged that despite the 2016 ADVO, the father repeatedly breached it. The mother says in particular:
66.Since the ADVO was made, I have still had numerous calls and texts from [Mr Tritton], some of them threatening and abusive, and I greatly fear for my safety as well as for X because of [Mr Tritton]’s tendency for violence and also his numerous threats of self-harm and also to harm X just to hurt me. I have reported these breaches to police.
71.… Since I have been on the EE Region, [Mr Tritton] has breached the AVO many times. Those breaches have included threatening and abusive messages….
72.[Mr Tritton] has made threatening phone calls to me stating that if I didn’t tell him where I was he would find me himself. I have also received threatening messages from [Mr Tritton]. In one of those messages he called me a “cunt” and a “bad mother” and threatened me that “ … if I find out you’ve been around that fucking idiot again I’m going to lose it and you will be sorry …” and further that “… you will seriously be sorry and it’ll be your own fault if anything happens to you.”
In a consultation between the mother and a Dr Q on 20 September 2016 the mother said she was a victim of domestic violence and the ADVO had been breached 32 times.
The mother tendered only one Snapchat message and one Snapchat image in her case purporting to be from the father and in breach of the ADVO. The message tendered is referred to in paragraph 72 of her affidavit set out above. The message is undated and only identifies the sender by the Snapchat username “shayne.taylor89”. The father disputes sending the message. Indeed the father denies ever breaching the ADVO. The mother acknowledged during cross-examination that the father had repeatedly requested through his solicitors sufficient particulars of the messages such as the date and time it was sent in an attempt to disprove that the message came from him. The mother stated that she thought she had provided the information. No such information was tendered in her case. The father demonstrated in his evidence how easily messages could be fabricated. The father was not challenged about this evidence.
The father was charged by police with breaching the ADVO and after a defended hearing on 24 February 2017 the charges were dismissed. The mother does not disclose this in her affidavit material. The message referred to in paragraph 72 referred to above was the subject of one of the alleged breaches. In dismissing the charges the learned Magistrate made particular reference to this message noting that:
… Having read through the volumes of messages that have been tendered to the Court, certainly, I wasn’t able to see those messages where the accused had ever used the terms in describing the complainant or indeed having used those terms at al (sic).
It is interesting to note that the complainant on many occasions used the term “fuck” and derivations of that particular swear word in her communications with the accused.
In relation to the other messages in evidence at that hearing (including the second one tendered in the current trial) the learned Magistrate found among other things:
I am not satisfied that they were harassing or intimidating. Some of them may well have been unwise communications. … They were the usual flow of communication that passes between separated couples, particularly in relation to a child and young child that such couples have.
The learned Magistrate also found the mother was “on occasions prone to exaggeration” and that “in many respects she was overly sensitive in relation to communication that was between her and the accused”.
The mother provides little, if any, evidence to support her allegation that the father had been stalking her. One allegation is that the content of a Christmas card given to the child by the father at a supervised contact visit supported her contention that the father was stalking her. The content of the card included the following:
Dear X
Merry Christmas
I hope you have a fantastic day and get spoilt and that Santa finds you
You have more large presents at home waiting for you like your trampoline and bike
I miss and love you so much
…
[emphasis added]
The mother says that the part highlighted above corroborates her allegation of stalking. The mother did not explain why. On its face it does not support her allegation. There is nothing else in the mother’s evidence to support her allegation of stalking.

Other relevant matters

Before setting out my conclusions on the family violence allegations, I refer to five other matters which I consider to have some bearing on my assessment.
The first is that although the father denies being a perpetrator of family violence he nevertheless self-referred to a domestic violence specialist counsellor, Ms R, on 13 October 2017 “in order to gain an understanding of the effects of DV on families, especially on children, and anger management issues”. Ms R has over 22 years’ experience in counselling, mainly women victims of domestic violence. In her report Ms R opined among other things:
… subtle cues … reveal a recognisable pattern of typical behaviour, communication style and other traits in perpetrators, which are always present in abusive relationships whether or not there is physical violence.
…
[I] detected no sign in Mr Tritton’s manner, emotional state, communication style or description of his relationship that would indicate a controlling personality or abusive behaviour, as he appeared genuine, open and willing to take responsibility for his side of the conflict, was factual but not critical or disrespectful of [Ms Ryan]….
[I did not] detect controlling or manipulative signs either within the session itself or in his description of his situation. Instead Mr Tritton displayed a high level of maturity, responsibility and self awareness, not typical of abusers. For instance the writer felt no sense that he was trying to impress her to view him or believe him in any particular way; in other words to manipulate the writer. Instead, his relating seemed genuine, credible and above all plausible. Generally in these situations, when a person is manipulating the truth for their own ends, contradictions or incongruities become apparent either in the details or the emotional content or response for instance. These are some of the signs that the writer was alert to finding, but were absent.

I am not persuaded that the personal conflict between the parents is a significant issue for the future.
The parents have had little to do with each other in the last few years. The mother rarely attends changeover, which is facilitated by Mr L. Mr L and the father seem to have been able to do changeovers in a civil way.

what parenting order is in child’s best interests

I have made a number of findings critical of the mother and rejected a great number of her allegations. However, it does not necessarily follow that the child should live primarily with the father.
I am conscious of the fact that the mother was the primary carer for the child up to the time of separation although it is common ground that the father played a significant parenting role when he was not at work. It is not in dispute that the child has a close and loving relationship with each of his parents.
Subsequent to separation the mother has demonstrated a practice of prioritising her own interests over the child’s. By contrast, the father has demonstrated extraordinary commitment to the child.
The child spends significant time with each of his parents. The father has extensive family support in Town B and, as already noted, his family are very supportive of the child continuing his relationship with the mother despite the allegations made by her against the father and other members of his family. By contrast the maternal grandmother was not supportive of the father’s ongoing relationship with the child but to be fair to her, her position was informed by the mother’s allegations against the father. Mr L is supportive of the mother and accepts the allegations she makes against the father. He has however conducted himself civilly at changeovers.
In my view there is a greater prospect of the child having an ongoing meaningful relationship with both parents if he lives primarily with the father and I am satisfied that the father has the capacity and support to provide appropriate care for the child.
Another factor relevant to my determination of what parenting arrangement is in the best interests of the child, is the mother’s history of mental health issues. While there is no evidence that the mother currently suffers a mental illness, she has a long history of depression and anxiety.
The mother did not present with symptoms of a depressive episode or mood disturbance when psychiatrically assessed by Dr T on 26 July 2017, but Dr T opined that it was likely the mother had a “major depressive disorder, in remission”. There are limitations with the assessment, as noted by Dr T in her report, in that her opinion is “to some extent based on the self report” of the mother. It was established during the trial that the mother was not open and frank with Dr T about some aspects of her history e.g. the mother denied suicide attempts or deliberate self-harm when the evidence in exhibit 6 indicates to the contrary. The assessment is also somewhat dated having been undertaken over two years ago. Dr T made several recommendations to guard against relapse of the mother’s major depressive disorder. The mother did not provide evidence that she has implemented those recommendations, although I accept that the mother has the support of Mr L and that can be considered one protective factor.
Dr T and Dr S (the family report writer from 2016) agree that a child of a parent with depression is vulnerable to adverse outcomes such as social, emotional or behavioural problems. Dr S noted that the mother was in receipt of a Disability Support Pension as a result of her mental health issues and opined that “a person’s condition/s must be adversely affecting their ability to function” in order to be eligible for such a benefit. He also opined that “…research indicates an association between parental depression and less competent and responsive parenting behaviour, which can impair the development of secure attachment in the child. … levels of insight, diagnosis, severity, chronicity and compliance with treatment are all factors that significantly affect the level of vulnerability of children with parental mental illness”.
The most recent family report was prepared after interviews on 26 July 2018. Ms V, a family consultant and psychologist, opined that the mother’s history was “suggestive of her being compliant with medical treatment and follow up… This help-seeking behaviour and treatment compliance is considered a significant protective factor in relation to [the mother’s] mental health. There is no other information available to the writer to suggest that [the mother] currently suffers from a significant mental illness, or, if [the mother] is currently having mental health issues, there is no indication that this is significantly impacting on her parenting capacity.” The main source of information for this opinion rests on the mother’s self-report. The mother was not entirely open and frank with Ms V about her history of mental illness or compliance. I note that while the mother told Ms V she had been seeing a psychologist, Mr Z, in 2018 there was no evidence from Mr Z produced by the mother in these proceedings.
The investigation by FACs this year of the mother’s allegations of abuse did not raise any concerns about the mother’s mental health but that was not of course the purpose of their investigation.
While there is evidence that the mother has sought assistance with mental health issues when required in the past, there have been occasions when she has not been compliant with treatment and the risks of relapse remain, although I do not find that those risks are significant.
If the mother remains living near City CC the child will be able to maintain his relationship with the mother by spending alternate weekends with her as proposed by the father. One weekend will occur in Town B and the other near City CC. The father had no objection to an extension of the weekend time if there mother was in Town B i.e. to Monday morning.
If the mother and Mr L move to Town B, as they said they might, I see no reason why the alternate weekend time could not commence from after school on Friday and end before school on Monday. This would enable changeovers to occur at school during school term and the mother would not need to rely on others to attend changeovers in her stead. The mother suggested that if she moved to Town B the child should live in a week about arrangement. Given the history of this matter I am not confident that the parents (in particular the mother) would have the capacity to co-operate to the extent required with such an arrangement. The parents have not, since separation, co-parented to date and a week about arrangement is more likely to require communication (which the mother has avoided for the last several years) about all manner of things such as uniforms, homework, school and extracurricular activities etc. I note that the mother acknowledges the inability to communicate with the father and proposes that she have sole parental responsibility. A week about arrangement would not be in the child’s best interests in my view.

Conclusion

I have rejected the mother’s allegations that the father engaged in family violence throughout the relationship and subsequent thereto. In particular, her allegation of rape and threats to kill the child are not supported on the evidence.
The mother has repeatedly interfered with the father’s relationship with the child and cannot be relied upon to facilitate and encourage that relationship in the future.
The mother has repeatedly prioritised her needs ahead of the child’s to his detriment. The child demonstrated numerous behavioural issues subsequent to separation which the mother was keen to attribute solely to the father without considering the impact of her conduct upon the child.
The father has demonstrated a consistent commitment to the child and he and his family impressed as acknowledging the importance of the child’s relationship with the mother and of being able to facilitate that relationship in the future.
If the child lives primarily with the father there is a greater prospect of him being able to maintain a meaningful relationship with both parents.
While there is no evidence that the mother currently suffers a mental illness, her history of depression and anxiety represents a risk factor that may impact upon her parenting capacity in the future.
It is not in the child’s best interests for the parents to have equal shared parental responsibility but the father will be required to consult the mother prior to making any decisions about major long term issues.

Other matters

The parties (including the ICL) each submitted a draft order which included a provision restraining each parent from consuming alcohol “to or above the PCA limit” and from using illicit drugs. No submissions were made in relation to this provision and I was not taken to any evidence supporting a need for such an order. There is no definition of “PCA limit” and no mention of it in the evidence. In addition, I am disinclined to make an order restraining the parents from doing something that they are already prohibited from doing under the criminal law in each State i.e. not to use illicit drugs. To include such a provision in the order may be interpreted as giving tacit approval to using illegal drugs at times other than as specified in the proposed order.[15]
[15]Colgan & Colgan [2014] FamCA 828 at [28] per Rees J; Mahoney & Houston [2018] FamCA 71 at [113].
To the extent each party (including the ICL) submits mirror provisions in their respective draft orders I propose to make them by consent. No submissions were made in relation to them.
Finally, no provision is made in the father’s proposed order or the ICL’s proposed order for the child to spend time with the parent with whom they are not living over the Christmas period i.e. Christmas Eve to Boxing Day. No submissions were made in relation to this matter so I have adapted the mother’s proposed order so that if the parent with whom the child is not living is in the same geographical area as the other parent, that parent may spend time with the child if they collect and return the child from the other parent. If the child does not see a parent during the Christmas period there will be the opportunity for communication on Christmas Day provided in the order.

I certify that the preceding one-hundred and ninety-one (191) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 5 December 2019.

Associate:

Date: 5.12.2019

[2019] FamCA 929

5 December 2019

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