VANCE & CARLYLE

[2014] FamCA 651

FAMILY COURT OF AUSTRALIA

VANCE & CARLYLE [2014] FamCA 651

FAMILY LAW – CHILDREN – Best interests – With whom the child shall live and spend time – Where the child has a meaningful relationship with the mother – Where the child’s re-establishment of a meaningful relationship with the father is affected by the father’s contingent interest in the child – Where the father lacks insight into the child’s emotional needs – Where it is likely the child will be exposed to family violence whenever the parties are in proximity – Where the child is at risk of suffering psychological harm by witnessing the mother’s fear of the father’s intimidation – Where the mother’s parenting capacity may be adversely affected by the child spending regular unsupervised time with the father – Where the mother presents a better residential option for the child than the father – Child to live with the mother – Child to spend limited supervised time with the father – Supervised time with the father to be discharged if the father fails to attend two consecutive visits with the child

FAMILY LAW – CHILDREN – Parental Responsibility – The presumption of equal shared parental responsibility does not apply – Where evidence proves the father’s commission of family violence – Mother to have sole parental responsibility

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61B, 61DA, 62B, 64B, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 65D, 68B, 69Q, 69R, 69U, 91B
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)

A & A (1998) 22 Fam LR 756; (1998) FLC 92-800
H & K [2001] FamCA 687
H & R [2006] FamCA 878
Marriage of Sedgley (1995) 19 Fam LR 363; (1995) FLC 92-623
Re Andrew (1996) 20 Fam LR 538; (1996) FLC 92-692
V & V [2001] FamCA 78

APPLICANT: Mr Vance

RESPONDENT: Ms Carlyle

INDEPENDENT CHILDREN’S LAWYER: Coast Law

FILE NUMBER: NCC 614 of 2013

DATE DELIVERED: 13 August 2014

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 21, 22 & 24 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Mr T Bates

SOLICITOR FOR THE RESPONDENT: Peter Hamilton & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr C Boyd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Coast Law

Orders

1. All former orders relating to the child N Vance, born … 2011, (“the child”) are discharged.

2. The parties are restrained from causing or permitting the child to be known by any name other than “N Vance”.

3. The respondent (“mother”) shall have sole parental responsibility for the child.

4. The child shall live with the mother.

5. Each of the parties shall take all reasonable steps to ensure that the child spends supervised time with the applicant (“father”) for not more than two hours on or about the second weekends of March, June, September and December each year on the conditions set out hereunder.

6. For the purpose of implementing Order 5 hereof:

   (a)The supervisor of the time spent by the child with the father shall be staff of B Contact Centre or some other person or entity nominated by such staff or agreed between the parties (“the supervisor”);

   (b)Each party shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor;

   (c)The time that is to be spent by the child with the father shall commence at the time designated by the supervisor;

   (d)The venue at which the time is to be spent by the child with the father shall be designated by the supervisor;

   (e)The father shall pay all costs due to the supervisor;

   (f)The mother shall cause the delivery of the child to, and the collection of the child from, the supervisor at the commencement and conclusion of the time spent by the child with the father;

   (g)The mother and father shall comply with all reasonable requests and directions of the supervisor; and

   (h)Leave is granted to the parties to provide to the supervisor a sealed copy of these Orders.

7. Orders 5 and 6 hereof are discharged in the event the father fails to attend two consecutive visits with the child.

8. Pursuant to s 68B of the Family Law Act, the father is restrained from entering upon or approaching within 100 metres of:

   (a)The mother’s residence; and

   (b)Any school attended by the child.

9. Each of the parties shall take all reasonable steps to ensure that the child is able to communicate with the father in the following manner:

   (a)By the father being able to send letters, cards, and/or gifts to the child on or about dates proximate to Easter, Father’s Day and Christmas Day; and

   (b)By the mother promptly sending to the father:

   (i)Written acknowledgement of receipt of the father’s written communication; and

   (ii)Any letters, cards, photographs, or other written communication the child wishes to be conveyed to the father.

10. Each party is restrained from permitting the child to refer to any person other than the mother and father by use of the terms “Mum” and “Dad” respectively.

11. Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.

12. The mother shall notify the father of any medical emergency, illness or injury suffered by the child whilst in her care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the father about the condition and treatment of the child.

13. The mother shall authorise and request the principal of any school attended by the child to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the child.

14. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective address and mobile telephone number.

15. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

16. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

17. Any and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 614 of 2013

Mr Vance

Applicant

And

Ms Carlyle

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. The parties in these proceedings had quite disparate views about the orders needed to promote their child’s best interests.

2. The father could foresee no impediment to the child living with each party for equal time and the parties having equal shared parental responsibility for him.

3. The mother, however, could not bear such significant involvement by the father in the child’s life, or for that matter, her own. She wanted the child to live with her and to have sole parental responsibility for him. She additionally wanted the child to only spend time with the father for a maximum of four occasions each year under supervised conditions at a contact centre, which proposal was supported by the Independent Children’s Lawyer.

4. Without intending disrespect, neither party possessed optimal parenting capacity, but the weight of the evidence vindicated the joint proposal of the mother and Independent Children’s Lawyer.

Short history

1. The parties commenced their relationship in 2007 and finally separated in September 2012. During that period they lived at various locations around the Newcastle district.

2. Their only child was born during their relationship in 2011. He is now two years of age.

3. The parties’ lives have been beset by mental ill-health, illicit drug use, and intense hostility, the details of which will be later elaborated.

4. After separation in September 2012 the child lived with the mother.

5. The child did not spend much time with the father after separation, but the parties’ evidence on that issue was both sparse and inconsistent. The father deposed he tried to negotiate arrangements for the child to spend time with him from November 2012,[1] which he implied was unsuccessful. When procedural orders were made by the Court on 15 May 2013, it was noted the child had not spent any time with the father since separation,[2] but it transpired that was not literally correct. The mother deposed the child had sporadic interaction with the father,[3] with which the father agreed in cross-examination.

   [1] Father’s affidavit, paras 6, 9.3

   [2] Notation (b) made on 15 May 2013

   [3] Mother’s affidavit, para 99

6. Interim orders were made on 13 June 2013 providing for the mother to have sole parental responsibility for the child, for the child to live with the mother, and for the child to spend supervised time with the father at a contact centre for two hours each weekend.

7. Those orders were not implemented immediately, the reason for which was not explored thoroughly in the evidence, but may have been due to delays at the contact centre. However, the parties’ evidence was again initially inconsistent about when the child did begin spending time with the father. The father deposed the interim orders were implemented from August 2013,[4] but the mother deposed she relocated from Newcastle to the Central Coast of NSW in June 2013 and the orders were not implemented until December 2013.[5] In cross-examination the father agreed the orders were implemented from early December 2013. He accepted as correct a schedule of the supervised visits.[6]

   [4] Father’s affidavit, para 9.3

   [5] Mother’s affidavit, paras 98, 100-101

   [6] Exhibit ICL2

8. There were a few occasions on which the orders were not observed, which the mother attributed to illness,[7] but otherwise the orders were implemented reasonably regularly until the final hearing in July 2014. However, apparently because of limited resources at the contact centre, the child’s visits with the father were only conducted fortnightly instead of weekly.

   [7] Father’s affidavit, para 7; Mother’s affidavit, paras 102-103; Exhibit ICL2

9. The mother still lives on the Central Coast with the child. The other members of that household are her older son (now aged seven years), the father of her older son (“Mr K”), and Mr K’s brother. The mother and Mr K assert their relationship is platonic, notwithstanding their former sexual relationship, but the father is very doubtful. Regardless, it is quite unnecessary to decide that particular dispute. The father and Mr K are first cousins, as their mothers are sisters.

10. The father currently lives with another adult male in rented accommodation in a southern suburb of Newcastle.

Proposal of father

1. The father has always proposed that he and the mother have equal shared parental responsibility for the child, but his proposals for the child’s residential care changed over time.

2. When he commenced these proceedings in March 2013, he proposed that the child live with the mother and spend time with him on Sundays and Mondays when he did not work. Once the child started school, he instead proposed the child spend time with him on alternate weekends and for half of school holidays. He maintained that proposal when he conferred with the Family Consultant in February 2014.[8]

   [8] Family Report, paras 35, 96

3. In May 2014 the father filed an Amended Application, in which he proposed that the child live with the parties for equal time on three and four day cycles. Both in evidence and during submissions the father made comments which indicated he did not desire or expect the child to live with him for equal time. Rather, he admitted he asked for more than he expected. Inferentially at least, he only wanted orders that provided for the child to spend unsupervised time with him on a reasonably regular basis.

Proposal of mother

1. The mother pressed for the orders set out within her Amended Response filed in June 2014, save for minor variation.

2. She sought sole parental responsibility for the child and for the child to live with her.

3. She proposed that the child spend only supervised time with the father on four occasions each year at a contact centre. She clarified that she did not seek complete elimination of the father from the child’s life.

4. The mother abandoned her application for the child’s surname to be changed.[9]

   [9] Amended Response filed 5/6/14, Order 11

Proposal of independent children’s lawyer

1. The Independent Children’s Lawyer tendered the minute of orders she proposed at the commencement of final submissions.[10]

   [10] Exhibit ICL10

2. She proposed that the mother have sole parental responsibility for the child and that the child live with her. She further proposed that the child only spend supervised time with the father on four occasions each year at a contact centre.

3. She additionally proposed the imposition of an injunction precluding any name change for the child,[11] with which proposal the mother expressly agreed.

   [11] Exhibit ICL10, Order 7

The evidence

1. The father relied upon:

   (a)His affidavit filed on 14 July 2014; and

   (b)The affidavit of the paternal grandmother filed on 14 July 2014.

2. The mother relied upon:

   (a)Her affidavit filed on 27 June 2014; and

   (b)The affidavit of her housemate, Mr K, filed on 27 June 2014.

3. The parties and the Independent Children’s Lawyer also relied upon:

   (a)The Memorandum of the Family Consultant dated 15 April 2013; and

   (b)The Family Report dated 3 March 2014.

4. The Family Consultant and all of the witnesses were cross-examined.

Legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which equal shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

5. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend time with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

6. In the event an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

7. If parental responsibility for the child is allocated in some other way, then the Court’s discretion is at large in the determination of the parenting orders warranted, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Best interests of child – primary considerations

Section 60CC(2)(a)

1. Neither party adduced any evidence about the nature of their relationships with the child. Only the Family Consultant offered evidence of that ilk and she was not challenged about its accuracy.

2. The child appeared to the Family Consultant to have a loving relationship with the mother. The child showed some signs of separation anxiety when separated from the mother and the Family Consultant was unable to make any comment about the attachment relationship between the child and the mother, other than to observe it was probably impaired to some extent.[12]

   [12] Family Report, paras 103, 109

3. The child did not appear to the Family Consultant to have a secure attachment to the father. She did not perceive any “real connection” between them, as there was no eye contact and the child only interacted with the father at a basal level.[13] The father thought the observation session went well,[14] though the Family Consultant did not share his view.

   [13] Family Report, paras 78, 80, 83, 110

   [14] Family Report, para 85

4. In cross-examination, the Family Consultant said the contact centre notes,[15] which she had since read, only served to confirm her view about the child’s relationship with the father. The contact centre notes do not readily corroborate the father’s belief that he has been “slowly building a good rapport” with the child during the supervised visits.[16] His confidence the notes would do so was misplaced. The nature of the child’s interaction with the father over the last six months at the contact centre has been quite inconsistent. On some occasions it was warm, but on others distant and disengaged.

   [15] Exhibit ICL8

   [16] Father’s affidavit, para 19

5. At the time of the parties’ separation in September 2012, the child was only nine months old. Given the child barely saw the father for almost a year afterwards and has since only seen the father for short fortnightly visits at a contact centre, it is understandable the child’s relationship with the father is not as well developed as his relationship with the mother.

6. Even though the child derives more benefit from his relationship with the mother, s 60CC(2)(a) of the Act invites attention to the benefit the child would derive in the future from having a more meaningful relationship with the father.

7. It is possible for orders to be made that facilitate the child’s incremental acquisition of a more meaningful relationship with the father, but other factors influence the decision about the desirability of that outcome – in particular, whether the father really wants it, and if so, whether the child would be sufficiently protected from risks of harm.

8. As to the first of those issues, the father’s apparent contingent interest in the child is not merely idle speculation.

9. Presently, the father is unconvinced about his paternity of the child. His comments to the Family Consultant insinuated his commitment to the child may wane if paternity tests reveal him to have no biological connection with the child. He gave evidence to the same effect at trial. He said he intended undertaking paternity testing with the child at the conclusion of the litigation. When asked why he had not investigated his paternity already, the father implied his request of the Court for paternity testing was declined,[17] but that was untrue. On the face of the Court record, he made no such written or oral application. He clearly left open the option of his abandonment of interest in the child if it transpired he was not the child’s biological father. Even if he decided to retain his interest in the child, he at least intended to avoid liability for payment of child support if his paternity of the child was excluded.

   [17] Family Report, paras 41, 88-89

1. Aside from the paternity issue, the Family Consultant firmly believed the father might only be using the child as a tool to further his personal interest in the mother.[18] The father said in cross-examination that was not so, but the evidence offers support for the inference drawn by the Family Consultant.

   [18] Family Report, para 110

2. In December 2013, the father took birthday gifts for the mother to the contact centre, expecting that the gifts would be conveyed to the mother for him by the child or the contact centre staff.

3. When observed with the child by the Family Consultant in February 2014, the father picked the child up, sniffed him, and said:[19]

   Is that your Mummy’s perfume I can smell? Make sure you say hello to her for me.

   [19] Family Report, para 81

4. When discussing the proceedings generally with the Family Consultant, the father conceded he still loved the mother “very much” and would consider re-establishing their relationship if she reciprocated the affection.[20]

   [20] Family Report, para 99

5. In April 2014, the father took Easter gifts for the mother and the child’s half-sibling to the contact centre, even though he had been warned months before in December 2013 that he was not permitted to take gifts to the contact centre.

6. In cross-examination the father admitted he still loved the mother and had “feelings for her”, but he denied he was feigning his interest in the child to achieve reconciliation with the mother. I accept the father’s interest in the child is not feigned, but the development of his relationship with the child conveniently serves the dual purpose of enabling his maintenance of indirect contact with the mother.

7. It remains feasible that when the father eventually accepts the mother has no interest at all in the reconciliation of their relationship, such realisation could also cause abandonment, or at least the subsidence, of his interest in the child.

8. Self-evidently, the child may be emotionally damaged if his developing relationship with the father was inexplicably either suddenly terminated or only pursued disinterestedly by the father. While that outcome is not probable, the chance is not so remote as to be ignored.

9. As to the second of the issues identified above, these proceedings were commenced in March 2013 so the amendments to the Act introduced by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) now apply. Consequently, the considerations prescribed by s 60CC(2)(b) of the Act carry greater weight than those prescribed by s 60CC(2)(a) of the Act (s 60CC(2A)). It is more important to preserve the child’s physical and emotional safety from family violence than to ensure his derivation of benefit from his relationship with the father.

Section 60CC(2)(b)

1. Evidence was adduced about risks of harm posed to the child by his exposure to family violence and his subjection to neglect, but only the first of those considerations had a secure foundation in the evidence.

   Family violence

2. The mother alleged, both to the Family Consultant and in evidence, that the father perpetrated serious family violence during their relationship.

3. She alleged the father physically and verbally abused her on numerous occasions, which included him pushing her, strangling her, jumping on her, holding her by the throat, punching her, and yelling at her. She alleged many of those incidents occurred in the presence of both the child and her older son.[21] On other occasions the father allegedly threatened to kill her, the child, and her older son.[22]

   [21] Mother’s affidavit, paras 24, 26-29

   [22] Mother’s affidavit, paras 61-64; Memorandum, pages 1 and 3

4. The father refuted all allegations of family violence when he conferred with the Family Consultant,[23] but his unconditional rebuttal was incorrect. In his affidavit, he admitted to becoming “physically aggressive” towards the mother during a heated argument in about July 2012. He alleged such conduct was uncharacteristic and he regretted it,[24] though that evidence was difficult to reconcile with his evidence in cross-examination of only acting at that time in self-defence. He also said in cross-examination there could have been other instances of physical confrontation between the parties, but he “could not remember off the top of [his] head”.

   [23] Family Report, paras 28, 38, 90

   [24] Father’s affidavit, para 13

5. The mother also alleged the father sought to control her friendships and damaged her property when she resisted his demands.[25] In cross-examination the father conceded warning-off one of the mother’s friends on one occasion and damaging her property on another.

   [25] Mother’s affidavit, paras 30, 33, 34

6. According to the mother, the father’s violent behaviour was not confined to her. He threatened neighbours, the mother’s friend, and the maternal grandfather.[26] He also told the mother of his willingness to violently harm others whom he perceived had wronged him.[27] The father made only partial concessions in cross-examination. He admitted past apprehended violence orders were made against him for the protection of a former girlfriend and the maternal grandfather, though those orders have long since expired.

   [26] Mother’s affidavit, paras 14, 31-33; Memorandum, page 2; Family Report, para 29

   [27] Mother’s affidavit, paras 58-59

7. The father’s hostility towards the mother was not confined to the period of their relationship. It continued after their separation and the commencement of these proceedings.

8. The father conceded in November 2012 he chased the mother to try and speak with her about their relationship, but she fled from him. He conceded he then sent the mother a “horrible” text message, which the mother deposed was “I hope you die in an accident”.[28]

   [28] Mother’s affidavit, para 99(d)

9. The father also conceded he insistently attempted to speak with the mother about their reconciliation in December 2012.[29] Of course, it was not unreasonable for the father to attempt reconciliation of their relationship, but his persistent and assertive intrusion was unreasonable.

   [29] Mother’s affidavit, para 99(e)

10. In May 2013, the father allegedly sent a text message to Mr K threatening to attend the mother’s home to take the child and warning Mr K not to obstruct him.[30] The mother was sufficiently fearful that she contacted police and an apprehended violence order was issued for her protection, but it was defended by the father and the order was later dismissed in June 2013 when the mother failed to appear at Court.[31]

    [30] Mother’s affidavit, para 106

    [31] Mother’s affidavit, para 107; Family Report, para 30

11. After these proceedings were commenced, on some occasions the mother attended this Court and felt intimidated and threatened by the father staring at her.[32] That evidence is likely true because, even in Court while at the bar table, the father often did look sideways to glare menacingly at the mother. On one past occasion when procedural directions were being made it was necessary to admonish the father for the practice.

    [32] Mother’s affidavit, paras 93-94

12. While the parties’ evidence about the issue of family violence is impossible to completely reconcile, the disparity is perhaps not as wide as it might otherwise seem. The disparity is partially explicable by the parties’ different perceptions about the type of conduct that amounts to “family violence”. The father seemed to harbour a belief it was confined to physical assaults, whereas the mother correctly understood the definition of “family violence” captures any behaviour that coerces or controls a family member or causes a family member to be fearful (s 4AB).

13. The “physically aggressive” incident between the parties in July 2012 was probably an instance of family violence. In all probability, there were many other instances of family violence committed by the father, even if not overtly physical, because I accept the mother’s evidence that she was and remains fearful of him.[33] The father’s demeanour towards the mother in Court vindicated the reasonableness of her fear, but it should be made plain her fear only need be genuine, not objectively reasonable.

    [33] Mother’s affidavit, paras 93, 95

14. The father has been unable to modify his behaviour to alleviate the mother’s apprehension of him. His dogmatic behaviour and her perception of his intimidation will probably not change. The dynamic of “family violence” will probably continue, and furthermore, it is likely the child will be exposed to such family violence whenever the parties are in proximity. The child is at risk of suffering psychological harm by witnessing the mother’s fear of the father’s intimidation and her consequent emotional deterioration. Orders must be made to protect the child against that risk of harm. Incidentally, the orders should not expose the mother to the risk of family violence (s 60CG(1)(b)). The only way in which those risks may be satisfactorily managed is by ensuring the parties are not required to be in physical proximity of one another.

15. It should not be overlooked that the child is also at risk of harm through exposure to family violence within the mother’s own household. Mr K and his brother assaulted one another during a violent encounter in October 2012 while the mother, the child, and his half-sibling were present. The mother was so afraid she urgently summoned police.[34] However, the evidence suggests that was an isolated incident, so while the risk of harm to the child exists, it is not unacceptably high.

    [34] Mother’s affidavit, para 104

    Neglect

16. In the past, the mother experienced difficulty in meeting all of her older son’s physical needs. For example, his school attendance was erratic, he attended school in dirty clothes and without food, he struggled to maintain academic progress with his peers, and he was forced to repeat a year at school.[35]

    [35] Family Report, paras 11, 53

17. She experienced similar difficulty with the child. She was ill-prepared for his birth, he was not promptly immunised, and his essential abdominal surgery was postponed.[36]

    [36] Family Report, paras 13, 20

18. The Family Consultant observed, without challenge, the mother had experienced difficulty in the past meeting the child’s (and her older son’s) basic physical needs for food and shelter.[37] That evidence indirectly implicated the father too, because he lived with the mother for part of the time those difficulties were encountered. However, neither the mother nor the father contended the child was presently at risk of either physical or psychological harm through the other party’s neglect of him, so such evidence was relevant only to the parties’ parenting capacity under s 60CC(3) of the Act, not as a primary consideration under s 60CC(2)(b) of the Act.

    [37] Family Report, para 105

Best interests of child – additional considerations

1. For various reasons, the parenting capacity of both parties is materially depreciated. I accept as correct the Family Consultant’s observation that:[38]

   There are serious concerns regarding parenting capacity for all of the adults involved in this matter, including Mr [K] and his brother…

   [38] Family Report, para 42

2. That opinion, expressed in March 2014, was unchanged from the opinion she first formed and expressed in April 2013 after her initial meeting with the parties.[39]

   [39] Memorandum, page 2

3. The mother has a “long history of complex mental health problems”, which date back to her teenage years.[40] She is now 31 years of age. Her past mental ill health has been inextricably linked with her illicit drug use.

   [40] Mother’s affidavit, para 79; Family Report, para 4

4. On a number of occasions between 2003 and 2009, the mother was admitted to and treated in psychiatric facilities for “drug related psychosis”, schizophrenia, and deteriorated mental ill-health generally,[41] though the mother now doubts the validity of the former diagnosis of schizophrenia.[42]

   [41] Mother’s affidavit, paras 80, 86-91; Family Report, para 4

   [42] Mother’s affidavit, para 81

5. The mother used alcohol and illicit drugs after the birth of her older son in 2006,[43] and she continued to do so after she commenced her relationship with the father in 2007. The parties’ expenditure on drugs and alcohol caused their itinerancy and financial distress.[44]

   [43] Family Report, para 7

   [44] Mother’s affidavit, para 65; Family Report, paras 10, 15, 26

6. When the child was born in December 2011, hospital staff were “extremely concerned” about the mother’s presentation and she was referred to a psychiatrist.[45] She was assessed in January 2012 by the psychiatrist to be “very anxious and emotionally labile”, but was not apparently then diagnosed with any disorder or medicated prescriptively.[46]

   [45] Family Report, para 13

   [46] Family Report, para 19

7. When she attended upon her orthopaedic specialist in February 2013 for review of her injured ankle, her presentation was apparently sufficiently alarming to warrant her urgent referral to the social work team and to justify the extraction from her of a denial of intention to “harm either herself or her children”.[47]

   [47] Mother’s affidavit, Annexure D

8. At the first interview with the Family Consultant two months later in April 2013, the mother insisted on wearing dark sunglasses and her demeanour vacillated between giggling and tearfulness, which the Family Consultant deemed was attributable to mental ill health, drug use, or perhaps both. The mother’s presentation was so concerning to the Family Consultant she was motivated to make a mandatory report to the NSW Department of Family and Community Services about the mother and the child.[48]

   [48] Memorandum, page 3; Family Report, para 32

9. The mother’s subsequent presentation to the Family Consultant in February 2014 was much different.[49] The mother reported to the Family Consultant she was functioning well and did not require treatment to maintain her mental health, other than continued use of a prescriptive anti-depressant medication.[50]

   [49] Family Report, para 44

   [50] Mother’s affidavit, paras 82-85; Family Report, paras 40, 60

10. The father agreed in cross-examination the mother now presents much better than she did before, so his evidence about the mother’s past “mental health status” was of little value.[51] The mother’s condition has clearly improved over the last 12 months.

    [51] Father’s affidavit, paras 17-18

11. When conferring with the Family Consultant the mother denied any misuse of alcohol or use of illicit drugs.[52] She repeated that denial in evidence,[53] but her assertion of abstinence from the time of her pregnancy with the child in early 2011 is difficult to accept as accurate in view of the manner in which she presented to hospital staff in December 2011, to the psychiatrist in January 2012, to her orthopaedic specialist in February 2013, and to the Family Consultant in April 2013.

    [52] Family Report, para 39

    [53] Mother’s affidavit, para 69

12. The mother’s recent drug test results were positive for morphine and codeine,[54] but those results are plausibly consistent with her use of prescriptive pain relief medication.[55] Even if the mother is not now completely abstinent from illicit drugs, her use of such drugs seems to have abated considerably.

    [54] Mother’s affidavit, paras 71-72, Annexures A-C; Family Report, page 2; Exhibit M2

    [55] Mother’s affidavit, para 78, Annexures D-E; Family Report, para 59

13. While the change in the mother’s presentation between April 2013 and February 2014 was cause for optimism about the continued improvement of her parenting capacity, it did not eradicate all concern. The Family Consultant did not resile from her concern about the mother’s impaired parenting capacity and said she still regarded the mother as “extremely fragile from an emotional and psychological perspective”.[56] In cross-examination she said “nothing had changed” in that regard.

    [56] Family Report, para 61

14. Although the Family Consultant’s concerns about the mother were not altogether alleviated, the child’s welfare is probably sufficiently protected in her care because of independent sources of surveillance.

15. The child now attends pre-school two days each week, which the Family Consultant correctly identified as a “protective factor”. The mother’s older son’s attendance at school serves a similar purpose.[57] The mother asserted their current attendances at pre-school and school are satisfactory and no suggestion was made or evidence adduced to the contrary.[58]

    [57] Family Report, paras 55, 106

    [58] Mother’s affidavit, paras 112-113

16. The mother’s care of the child and her older son is assisted by Mr K and his brother. While those men have their own problems to deal with, they and the mother are inter-dependent and mutually supportive. The child’s care is therefore dependent upon a network of adults. They are currently stable, though the stability is relatively precarious.

17. Mr K seemed to the Family Consultant to be “connected” to both the child and his own son. He was able to identify and meet their needs. He loved them and appeared to be loved by them in return.[59]

    [59] Family Report, para 111

18. Mr K’s brother impressed the Family Consultant as genuinely interested in the welfare of the mother and her children and he was prepared to offer them a home for as long as they needed.[60]

    [60] Family Report, para 68

19. The evidence also revealed the mother is supported by external agencies. She is now engaged with an organisation called C Community Service, to which she was referred in March 2014.[61] The organisation designates a support worker to monitor and meet with the mother weekly. She assists in the improvement of the mother’s parenting performance. The mother also consults her general practitioner reasonably regularly, apparently pursuant to a “mental health plan”, so that her psychological condition is monitored and scripts for her medication are dispensed.

    [61] Exhibit ICL7; Mother’s affidavit, para 117

20. The Family Consultant recommended in February 2014 that the mother engage with the “Brighter Futures” program,[62] but when informed of the mother’s subsequent engagement with C Community Services in March 2014 was reasonably content with it as an alternative.

    [62] Family Report, Recommendation III (page 23)

21. The father was ambivalent about the quality of the mother’s parenting capacity when discussing it with the Family Consultant in February 2014, but he had no concern about the child’s safety in the mother’s care. His stated concern related only to Mr K’s alleged misuse of alcohol,[63] but no evidence was adduced to vindicate such concern.

    [63] Family Report, para 95

22. The Family Consultant contended the father also has a “long history of mental health problems as well as drug and alcohol issues”,[64] but that was not conceded by the father. He sought help for his problems at a psychiatric facility long ago in 2003, but then failed to attend a drug and alcohol rehabilitation unit for treatment in January 2004.[65] Significantly, the father deposed he has had no further admissions or treatment for mental ill-health since 2003,[66] and he was not contradicted.

    [64] Family Report, para 9

    [65] Family Report, para 27

    [66] Father’s affidavit, para 12

23. The mother’s belief in the father’s mental ill-health during their relationship, based on her allegations about his paranoia and bizarre behaviour,[67] although perhaps genuinely held, was not corroborated by any other reliable evidence. The father denied the mother’s evidence. The mother’s uncorroborated evidence had little probative value because of her unreliability. The Family Consultant considered her to be a “fairly unreliable historian”[68] and she was forced to admit her dishonesty during cross-examination. She admitted she lied to hospital staff in October 2013 when she denied “any history of mental health issues”,[69] she lied when she deposed she forgot about the apprehended violence proceedings in June 2013,[70] and she lied to police about Mr K’s brother punching the child to ensure their more immediate response to her call in October 2012.[71]

    [67] Mother’s affidavit, paras 35-59; Family Report, para 40

    [68] Family Report, para 107

    [69] Exhibit ICL5

    [70] Mother’s affidavit, para 107

    [71] Mother’s affidavit, para 104

1. Like the mother, the father reported to the Family Consultant in February 2014 that he was not then misusing alcohol or using illicit drugs. He believed he was functioning well and did not require treatment for any mental ill-health.[72]

   [72] Family Report, paras 39-40, 97

2. The father certainly returned negative drug test results in April 2013,[73] April 2014,[74] June 2014,[75] and July 2014,[76] but the force of that evidence was diminished by him undertaking the tests at his leisure rather than immediately upon request by the Independent Children’s Lawyer. In one case he delayed the test for a month and in other instances he delayed for days. It remains possible he waited until illicit drugs leeched from his body before undertaking the tests.

   [73] Family Report, page 2

   [74] Exhibit ICL4

   [75] Exhibit ICL3

   [76] Exhibit ICL3

3. Nevertheless, the father’s evidence in relation to his sobriety seemed credible. He said he has been abstinent from illicit drug use for close to two years. He presented at Court for final hearing over three days and actively participated in the hearing, without legal representation, by giving evidence and making submissions. He was subjected to considerable pressure in an unfamiliar environment, yet he conducted himself with restraint, propriety, and diligence. He appeared in full control of his faculties and did not appear intoxicated to any degree at any stage. The father has also held regular employment with the same corporate employer for more than two years, suggesting he has been able to maintain his sobriety for work purposes. He said, without contradiction, he has never attended work affected by illicit drugs.

4. As with the mother, the evidence does not demand a conclusion that the father is now completely abstinent from illicit drug use, but even if he is not now abstinent, his use of illicit drugs has substantially abated.

5. The father’s laudable achievement in extricating himself from illicit drug addiction or dependence has not, however, transformed him into an insightful and empathetic parent. His parenting capacity is still impaired to some degree.

6. When conferring with the Family Consultant in February 2014 he needed to be reminded repeatedly to desist from discussing the litigation in the child’s presence.[77] Unfortunately, he behaved in precisely the same way when the child visited him at the contact centre, openly discussing topics that were patently unsuitable for the child. The contact centre notes contain the following records about the supervised visits:[78]

   [77] Family Report, para 77

   [78] Exhibit ICL8

   (a)The father said to the child “I don’t want to be here either, but we’re here because of what mummy did” (7/12/13)

   (b)The father told the child “several times” that the child was getting a “new mummy” (7/12/13)

   (c)The father made a comment to the child about him “doing the right thing or else they will think I’m taking off with you” (7/12/13)

   (d)The father conversed with the child regarding “the court process of taking out an AVO and the cost” (7/12/13)

   (e)The father asked “many questions” of the child about what the mother was feeding him (7/12/13)

   (f)The father explained to the child how he would soon take him to venues away from the contact centre, how he loved the mother, and how the mother could return to live with him if she wanted (21/12/13)

   (g)The father told the child he wished the mother would take him to the doctor (18/1/14)

   (h)When the child played with two dolls the father asked him whether the dolls were “mummy and daddy” (18/1/14)

   (i)The father continually commented to the child about his “financial situation and general difficulties” (18/1/14)

   (j)The father took several photos of bruises on the child’s body (1/2/14)

   (k)The father said to the child “no we’re not allowed outside, we’re not allowed to do anything” (1/3/14)

   (l)The father told the child he was trying to find some other location so they could see each other weekly instead of fortnightly (1/3/14)

   (m)The father told the child “several times” that “things would be different soon and they would be able to see each other whenever they wanted and go and do whatever they wanted to do” (5/7/14)

7. The Family Consultant observed, without challenge, that the father did not appear to have a “good understanding of the developmental needs” of the child,[79] and further, she expressed “serious concern” about the father’s ability to recognise and meet the child’s needs.[80] During cross-examination, the Family Consultant said she thought the father was probably incapable of refraining from improper discussion with the child because “he has no boundaries”. Those opinions are probably correct by reference to the nature of the father’s recorded conversations with the child. His regrettable comments to the child were not isolated, but rather repeatedly periodically over several months.

   [79] Family Report, para 110

   [80] Family Report, para 114

8. The father said in cross-examination, when challenged about the error of involving the child in such unsuitable conversation, that he did not intend any adverse consequences for the child. Undoubtedly he did not. However, his answer only served to prove his lack of insight. Until it was explicitly pointed out to him, he was bereft of any understanding about how the child was liable to be emotionally disturbed by being told such things. Even allowing for the father’s protestation of his intended improvement, the evidence did not afford any room for confidence he would become any more perceptive about the child’s emotional needs.

9. An inability to appreciate aspects of the child’s emotional needs was not the exclusive domain of the father. The mother also demonstrated some impaired capacity, which is most evident from the way in which she inculcates the child with confusion about the influential adults in his life and his biological origin.

10. The child is encouraged to refer to Mr K as “Daddy”.[81] Even though the child may be replicating the name he hears his half-sibling call Mr K, the mother and Mr K both know or suspect the practice is undesirable.[82] The Family Consultant deplored the practice in cross-examination, explaining how the child would probably become confused about his paternity. Names like “Mummy” and “Daddy” are intimate terms of endearment which a child should ordinarily reserve for his or her biological parents, so there can be no confusion about the parental influences in their lives.

    [81] Family Report, paras 23, 48

    [82] Family Report, paras 58, 73; Mr K’s affidavit, para 5

11. The mother also allowed some confusion to arise about the child’s own name. The mother called the child “[N (a middle name) Vance]” when she filed her Response in June 2013 and her Amended Response in June 2014, but in December 2013 she belatedly registered his name with the NSW Registrar of Births, Deaths and Marriages as “[N Vance]”.[83] She has spelled the child’s first name differently – using either “…” or “…” – from time to time,[84] and she applied to change the child’s surname from “[Vance]” to “[Carlyle]”,[85] although she abandoned that application during final submissions. Such uncertainty surrounding the child’s own name is bound to cause him confusion, which the orders must avert.

    [83] Exhibit ICL1

    [84] Family Report, para 57

    [85] Amended Response filed 5/6/14, Order 11

12. The Family Consultant pessimistically considered the parties would not adhere to the Court’s orders,[86] but such pessimism is not warranted. The father refuted her opinion during his cross-examination and asserted his intended compliance with orders even if he did not agree with them. There was no overt reason to disbelieve him. Although the father doubts the mother’s willingness to comply with orders, because of her failure to present the child for supervised visits on some occasions, the mother said the only reason for the missed visits was illness suffered by her or the child. No evidence was adduced to contradict her, nor was her evidence inherently improbable.

    [86] Family Report, paras 43, 115

13. Although the mother is obviously ill-disposed to the father and would prefer that he not be involved in either her life or the child’s, she genuinely believes he “isn’t just going to go away” and she needs to accommodate the father’s interest in the child.[87] Her general compliance with the interim orders made in June 2013, even though not implemented until December 2013, is testament to that. She complied with the orders even though her personal preference was for the father to play no role in child’s life.

    [87] Family Report, para 49

14. It was contended the mother would not be able to cope with final orders that provided for the child to regularly spend unsupervised time with the father. It was asserted she would lose psychological composure and the child’s care would then be compromised, thereby justifying limitation of the father’s involvement in the child’s life, consistently with authority (see Marriage of Sedgley (1995) 19 Fam LR 363 at 371; Re Andrew (1996) 20 Fam LR 538 at 544-546; A & A (1998) 22 Fam LR 756 at 768-769; V & V [2001] FamCA 78 at [54]; H & K [2001] FamCA 687 at [36]-[38]; H & R [2006] FamCA 878 at [44]-[53]).

15. The submission was made only with a view to the Court’s restriction of the father’s involvement in the child’s life, consonant with the common proposal of the mother and Independent Children’s Lawyer, not to justify complete elimination of the father from the child’s life. The distinction was important to the veracity of the submission.

16. The mother was able to comply with the interim orders made in June 2013 and in October 2013 she filed a parenting questionnaire in which she proposed that the child regularly spend unsupervised time with the father, subject to the father’s continued stable mental health and abstinence from illicit drug use.

17. The mother only resiled from that proposal and pressed for the child’s interaction with the father to be curtailed and supervised once her fears about the father were validated by the contents of the Family Report, which was released in March 2014.

18. Undoubtedly: the mother remains anxious about the father;[88] her family unit (comprising her, Mr K, and Mr K’s brother) is relatively fragile; and the family unit’s present stability could be undermined by the father;[89] but recognition of those facts by the Family Consultant was simply acknowledgement of the bleakest potential.

    [88] Family Report, para 49

    [89] Family Report, paras 112-113

19. The Family Consultant observed in cross-examination that the mother’s anxiety is “quite overwhelming”, but the mother’s evidence implied the source of her stress was as much the litigation as the father. She said of the litigation words to the effect:

    I will have a weight off my shoulders whatever the outcome of this case.

    This is a huge black cloud in my life.

20. The Family Consultant was asked directly for her opinion about whether the mother was emotionally capable of facilitating the child’s expenditure of time with the father. She replied it was a “distinct possibility” she would be overwhelmed by that obligation, which evidence should be interpreted with the same care it was given. That hypothetical was described only as a “possibility”, not as a “probability”. The Family Consultant expressly said she was open-minded about orders providing for the child to visit the father periodically under supervised conditions, so it was implicit she considered the mother was probably capable of coping with orders of that sort.

21. The tenor of the mother’s evidence was that she would likely cope with whatever orders the Court makes, provided they fall within the parameters of what she would regard as reasonable. I am quite satisfied the mother would cope satisfactorily with orders providing for the child to have supervised visits with the father once every few months, as the Independent Children’s Lawyer proposed and she countenanced. Equally, I am conversely satisfied the mother would not cope indefinitely with orders that would demand the child spend substantial and significant unsupervised time with the father, as he envisaged should occur. She probably could not manage that level of involvement by the father in the lives of her and the child on a permanent basis.

22. If the mother’s parenting capacity is depreciated any further then, as the Family Consultant feared, the child may be subjected to the risks of harm he faced in the past when the mother was unable to give him proper care and supervision because of her illicit drug use and deteriorated mental health.[90] Even so, her continuing extensive use of pain relief medication is itself a concern because of its propensity to dull her senses and awareness.

    [90] Family Report, para 105

23. The father did not doubt the mother’s capacity to provide satisfactorily for the child’s physical needs because he proposed the child live predominantly, or at least equally, with her, but the quality of the mother’s future parenting capacity is dependent upon maintenance of her current sobriety and emotional equilibrium.

24. The child has not seemingly enjoyed much involvement with members of either the maternal or paternal families.[91]

    [91] Family Report, paras 107-108

25. There are no relevant family violence orders in existence.[92]

    [92] Family Report, para 38

Conclusions and orders

1. The presumption of equal shared parental responsibility does not apply because the evidence proves the father’s commission of family violence (s 61DA(2)).

2. Notwithstanding, the father sought the allocation of equal shared parental responsibility for the child. The mother and Independent Children’s Lawyer both proposed that the mother have exclusive parental responsibility for the child and that was also the recommendation of the Family Consultant.

3. The father was aggrieved by the mother’s failure to consult with him about matters concerning the child’s welfare, which was the reason he asserted the parties should have equal shared parental responsibility for the child. But his analysis of the situation was flawed, both factually and conceptually.

4. The father alleged the mother failed to advise him of the child’s surgery in October 2013,[93] but the facts were not so clear. The father admitted in cross-examination he did not seek such information from the mother and, although he was aware medical information about the child had been sought by subpoena, he did not attend the Court to inspect the documents produced because he “did not have time”. His level of interest in the child’s welfare was not therefore demonstrably of such high importance to him. For her part, the mother said she asked Mr K and his brother to notify the father about the child’s surgery because she wanted to avoid personal contact with him. That was not unreasonable, since the father finally admitted his past conduct had compounded the mother’s anxiety.

   [93] Family Report, para 94; Father’s affidavit, paras 8, 9.4, 9.5

5. The father conceded in cross-examination his relationship with the mother is now worse than it ever was. He knows she refuses to communicate with him, so it was unrealistic for him to expect that they could engage in the type of courteous discourse expected of adults who share parental responsibility for a child (s 65DAC).

6. There is no feasible option but to allocate parental responsibility for the child exclusively to one party, which should be the mother because it was uncontroversial the child would continue to live predominantly with her.

7. Orders declaring that the child live with the mother should not be taken to suggest the mother is an unconditionally competent parent – only that she presents a better residential option for the child than the father. The child’s relationship with her is substantially stronger and she is presently better placed to meet the child’s physical needs.

8. As the Independent Children’s Lawyer made plain during final submissions, had the Secretary of the NSW Department of Family and Community Services elected to intervene in the proceedings as a party, pursuant to invitations made to him/her pursuant to s 91B of the Act, orders could possibly have been made investing him/her with exclusive parental responsibility for the child. However, that was mere conjecture. The Court was left with a choice between the mother and father as the primary residential parent for the child and the mother is currently the preferable alternative. That finding was not seriously contested by the father.

9. Given that residential outcome, the salient question was the manner in which the child’s relationship with the father should be managed.

10. The Family Consultant could not conceive of any workable parenting arrangement other than either, first, elimination of the father from the child’s life altogether, or secondly, the child only visiting the father on a few occasions each year under supervised conditions at a contact centre. She was undecided as to the preferable option.

11. It is a serious step to completely eliminate a parent from a child’s life – one that should not be taken unless there is no reasonable alternative. Here, however, there was a reasonable alternative and it enjoyed the support of the mother, Independent Children’s Lawyer, and the Family Consultant. They mutually proposed the child visit the father several times each year at a contact centre.

12. Of course, such an outcome is anathema to the father’s concept about what would constitute a proper future relationship between the child and him. He considered the child should be able to spend time with him frequently, for prolonged periods, and without the restriction of supervision. Although he genuinely believes an outcome of that type would serve the child’s best interests, he was mistaken.

13. The child’s best interests demand the imposition of much greater restrictions upon the child’s interaction with him, for otherwise the child would be at risk of harm in a variety of ways: the risk of psychological harm through exposure to family violence committed by the father; the risk of psychological harm by reason of witnessing the father intoxicated by illicit drugs; and the risk of physical harm through being insufficiently supervised by the father if stupefied by illicit drugs.

14. There are additional reasons why the child’s interaction with the father should be restricted. The father lacks the necessary insight into the child’s emotional needs to justify unfettered interaction with the child and the mother lacks the emotional capacity to cope with more extensive interaction between them. If the mother’s ability to cope is compromised then the level of the child’s care will also be compromised, which would be a significant detriment to the child, since the father does not represent a viable residential alternative.

15. The orders therefore provide for the child to visit the father on four occasions each year at a contact centre.

16. Since there remains a possibility the father will not avail himself of those orders, because either he disagrees with them, becomes less convinced of his paternity, or loses interest in the child due to the perceived infrequency of the visits, the orders change if he defaults. If he misses two consecutive visits, which would mean a hiatus of personal interaction between him and the child for a period of not less than six months, the orders providing for the child to spend time with him are discharged automatically. It could not conceivably be in the child’s best interests to continue attending the contact centre every quarter in expectation of the father’s arrival, only to be perpetually disappointed.

17. An injunction is imposed precluding the father from attending at or near to the mother’s home and the child’s school, which will prevent the father’s frustration of the orders regulating his personal interaction with the child.

18. The father’s desire to maintain his connection with the child is provided for in other ways – he can communicate with the child in writing, procure details about the child’s scholastic progress, obtain the child’s school photographs, and confer with medical providers if the child is injured or ill.

1. The Family Consultant was supportive of an order providing for occasional written communication between the child and the father because the child would know from their correspondence that the father had not abandoned him.

2. The parties are obliged by the orders to keep one another informed of their contact details in case of emergency. Neither suggested their address or telephone number was or should be kept secret.

3. The orders also introduce embargoes about the names used for the child and the parties. The child must be known by the name in which he was registered by the NSW Registrar of Births, Deaths, and Marriages. Only the parties may be addressed by the child as “Mum” and “Dad” respectively. That will introduce consistency and obviate confusion for the child.

4. During the course of cross-examination the father said he would like an order made for his paternity of the child to be tested, but the issue was not mentioned again. He made no application for such an order in his Amended Application, nor orally during final submissions. Any inclination to involve the child in invasive medical tests is averted by statutory presumptions. The father is presumed to be the biological father of the child, both by reason of the parties’ cohabitation at a time proximate to the child’s conception (s 69Q) and the nomination of the father’s paternity on the child’s birth certificate (s 69R). Nothing said or done by the father rebuts the presumption arising from those statutory sources (s 69U(1)). On the contrary, the father expressly acknowledged he probably was the child’s father. No parentage testing order is made.

5. The orders set out at the commencement of these reasons reflect the child’s best interests.

I certify that the preceding one hundred and forty two (142) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 13 August 2014.

Associate: 

Date:  13 August 2014