VINCENT & WELLS
[2019] FamCA 578
•14 March 2019
FAMILY COURT OF AUSTRALIA
| VINCENT & WELLS | [2019] FamCA 578 |
| FAMILY LAW – CHILDREN – Application by father to spend time with the child – Allegations of drug abuse – Allegations of violence – Allegation that child at an unacceptable risk in the unsupervised care of the father – Orders by Consent that child live with the mother – Orders by Determination – Order that mother and father have equal shared parental responsibility for the child – Order that father spend supervised time with the child building up to unsupervised time – Orders that the parent who is not living or spending time with the child be able to communicate with the child – Specific issues orders FAMILY LAW – CHILDREN – Change of child’s surname – Application by father seeking registration of the father’s surname on the child’s birth certificate – In circumstances where parties were neither living together nor in an intimate relationship when the child was born – Order that father’s surname be registered on the child’s birth certificate FAMILY LAW – COSTS – Costs of the Independent Children’s Lawyer – Where the Independent Children’s Lawyer applied for the parents to each contribute to one half of the costs of representing the child – Where the mother is legally aided and the father is in employment – Order that father should meet one half of the costs of the Independent Children’s Lawyer |
| Family Law Act 1975 (Cth) s 60CC |
| J v C [1969] 1 All E.R 824 Yamada & Cain [2013] FamCAFC 64 |
| APPLICANT: | Mr Vincent |
| RESPONDENT: | Ms Wells |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Giacomo |
| FILE NUMBER: | PAC | 5705 | of | 2011 |
| DATE DELIVERED: | 14 March 2019 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 12, 13 & 14 March 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Givney |
| SOLICITOR FOR THE APPLICANT: | Anderson Boemi Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Todd |
| SOLICITOR FOR THE RESPONDENT: | Hinde Ginges Boyd Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAYWER | Ms Giacomo |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Legal Aid NSW |
Orders
All previous parenting orders in respect X born … 2011 (‘the child’) are discharged and vacated.
Ms Wells (‘the mother’) and Mr Vincent (‘the father’) have shared parental responsibility for the child.
BY CONSENT the child live with the mother.
The child spend time with the father as follows:-
a.for one (1) fortnightly visit on the second Sunday after the date of these orders, from 10:00 am to 1:00 pm in Sydney, supervised by C Contact Services, with the first 1 ½ hours to be supervised in accordance with these orders and the last 1 ½ hours to be unsupervised;
b.on the next alternate Sunday and for two (2) further alternate Sundays after that from 10:00 am to 1:00 pm in Sydney, and with the first one (1) hour to be supervised by C Contact Services and the last two (2) hours to be unsupervised;
c.The next alternate Sunday from 10:00 to 1:00 pm in Sydney with changeover to be supervised by C Contact Services, but time to be otherwise unsupervised;
d.thereafter and until 31 December 2019, in a four (4) week cycle each alternate Saturday from 9:00 am to 4:00 pm:-
i.in D Town on the Saturday of the 2nd weekend, with changeover to occur in D Town; and
ii.In Sydney on the Saturday of the 4th weekend, with changeover to occur in Sydney,
e.thereafter from 1 January 2020 until the commencement of term 1 in 2021 from 9:00 am on Saturday until 2:00 pm on Sunday each alternate weekend with such time to occur at the home of the paternal grandparents for the first six (6) months and being subject to order 4(f). With changeover to occur in Suburb E at a place agreed between the parties and in the event that there is no agreement then at McDonalds Suburb E J Street, Suburb E NSW …;
f.during the period referred to in order 4(e) the child shall spend additional time with the father over the 2020 school holiday periods as follows:-
i.in the first mid-term school holiday in the first weekend the child spends with the father the time will commence from 7.00pm Friday to 2.00pm Sunday,
ii.in the second mid-term school holiday in the first weekend the child spends with the father the time will commence from 7.00pm Friday to 2.00pm Monday,
iii.in the third mid-term school holiday in the first weekend the child spends with the father the time will commence from 7.00pm Friday to 2.00pm Tuesday, and
iv.in the 2020/2021 end of year holiday period the weekends:-
1.the child shall spend time with the father from 11.00am 24 December 2020 until 11.00am 26 December 2020;
2.if that Christmas time is not otherwise the weekend the child spends with the father then it will be in replacement of the previous weekend; and
3.in January 2021 the alternate time will commence from 7.00pm Friday to 2.00pm Tuesday and shall conclude at the latest 4 days before school term in 2021 commences.
g.from the commencement of school term 1 in 2021 the child shall spend time with the father:-
i.during school terms from 7.00pm Friday to 2.00pm Sunday each alternate weekend with changeover to occur in Suburb E at a place agreed between the parties and in the event that there is no agreement then at McDonalds Suburb E J Street, Suburb E NSW ...; and
ii.for the first half of school holidays in odd numbered years and for the second half of the holidays in even numbered years with changeover to occur in Suburb E at a place agreed between the parties and in the event that there is no agreement then at McDonalds Suburb E J Street, Suburb E NSW ..., subject to the child being returned to the mother at the end of the December/January holiday 4 days before school term commences.
Notwithstanding the above orders, in the event that the child will otherwise spend a weekend or time with the father on Mother’s Day, such alternate weekend shall switch to the weekend following Mother’s Day so the child will spend the weekend with the mother on Mother’s Day.
Notwithstanding the above orders, in the event that the child will otherwise spend the weekend with the mother on Father’s Day, such alternate weekend shall switch to that weekend so the child will spend the weekend with the father on Father’s Day.
In relation to Christmas periods, the following shall apply, notwithstanding the above orders:-
a. the child will spend Christmas with the father from 11.00am 24 December 2022 until 11.00am 26 December 2022 and each alternate year thereafter, with changeover to take place at Suburb E, as set out above; and
b. the child will spend Christmas with the mother from 11.00am 24 December 2021 until 11.00am 26 December 2021 and each alternate year thereafter, with changeover to take place at Suburb E, as set out above;
When the child’s time, or changeover, is to be supervised pursuant to these orders:-
h.the father will advise the mother by email seven (7) days prior to the time commencing of the location of the supervision, which will be within ten (10) kilometres of C Contact Services;
i.the cost of supervision and supervised changeover will be met by the father; and
j.for the purposes of orders 4(d), 4(e) and 4(f) the parents will ensure for the first 4 months that changeover is effected between the maternal grandfather and the paternal grandmother or some other agreed grandparent or the father’s present partner in the event that the maternal grandfather or the paternal grandmother are not reasonably available.
The father will ensure that the child is able to contact her mother by telephone during any time she is in his care, and will ensure she has access to a telephone to do this. For this purpose, the mother may nominate a telephone number that the child can call and provide it to the father.
The parent with whom the child is not living or spending time shall have telephone or other electronic communication with the child each Wednesday between 5.00pm and 6.00pm and the other parent will ensure that the other has appropriate telephone numbers and will make the child available.
Each party shall ensure the child’s timely and appropriate attendance at school.
The father and mother are each restrained from using or being affected any illicit drugs while the child is in his or her care.
The father continue to engage with an appropriate therapist for the purpose of drug and alcohol counselling for as long as the therapist deems such engagement necessary.
For twelve (12) months following the date of these orders, the mother is permitted to request by email from the father no more than three (3) random drug urinalysis tests, and upon receiving an email request from the mother, the father is to submit to a chain of custody drug urinalysis test at his own expense within forty eight (48) hours and provide a copy of the results by email to the mother within forty eight (48) hours of him receiving them.
Each parent is restrained from speaking about the other parent or members of their family or household in a negative, derogatory or offensive manner in the presence or hearing of the child, and will remove the child from the presence or hearing of any third party that does so.
Each party will forthwith and contemporaneously with the event advise the other of any significant illness or injury requiring hospitalisation or specialist medical appointment relating to the child, and will provide all consents, authorities and instructions to allow each parent to be advised with respect to any treatment and to visit her if hospitalised.
Within seven (7) days of these orders being made, the mother will contact a family therapist/counsellor for the purposes of arranging and attending appointments for counselling:-
k.for the child, to support her to:-
i.build her relationship with her father;
ii.build her relationship with the paternal grandparents; and
iii.make the transition from supervised time to increasing unsupervised time (including overnight time) with the father in accordance with these orders.
l.for herself (the mother), to assist her to:-
i.support the child’s relationship with her father and the child building that relationship;
ii.support the child’s relationship with the paternal grandparents and the child building that relationship; and
iii.support the child with the transition from supervised time to increasing unsupervised time (including overnight time) with the father in accordance with these orders.
m.Leave is granted to the parents and/or the Independent Children’s Lawyer to provide to any counsellor or therapist engaged with either of the parents or the child, and the child’s school, with:-
i.a copy of these orders, and any reasons for decision;
ii.a copy of the report of the Single Expert Dr F dated 14 April 2018; and
iii.a copy of the Family Report dated 22 May 2017.
For the purpose of any communication required relating to the child and pursuant to these orders, each party will within seven (7) days provide the other with a current email address (and will notify the other party of any changes to their email address within seven (7) days).
Within twenty eight (28) days the parties each do all acts and complete all necessary forms to enable the father’s name to be entered on the Register of Births, Deaths & Marriages as the child’s father, and that the father be responsible for any fee associated with the registration and issue of amended birth certificate for each of the parents and in the name of the child set out above.
The mother will arrange for the child to attend the office of the Independent Children's Lawyer at an appropriate time on Friday 22 March 2019 and IT IS REQUESTED that the Independent Children's Lawyer explain these orders to the child including that the order she live with the mother was made by consent and with the Court’s approval.
The father pay to the Legal Aid Commission of New South Wales the sum of five thousand six hundred and seven dollars and fifty five cents ($5,607.55) within ninety (90) days of the date of this order (being one half of the costs of the Independent Children’s Lawyer legal fees in respect of these proceedings.
All extant applications be dismissed except costs applications, if any, which are to be dealt with in accordance with the Family Law Rules 2004 (Cth).
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED
As and from the date of this order the paternal grandparents and the father’s present partner may spend such time with the child (during the child’s time with the father) as is determined by the father.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.
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 Vincent & Wells 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 PARRAMATTA |
FILE NUMBER: PAC 5705 of 2011
| Mr Vincent |
Applicant
And
| Ms Wells |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
EX TEMPORE REASONS FOR JUDGMENT
INTRODUCTION
X (‘the child’) is aged seven, almost eight, and she has been subject to proceedings, first in the Federal Circuit Court, then in the Family Court. These started when she was about five and a half months old.
Mr Vincent (‘the father’) is the child’s father and he has had, over 10 years, struggled with addiction to illicit drugs, in particular, illicit drugs (‘illicit drugs’) since he was aged at least 25. His evidence is that since March 2014 he has been a recovering drug addict and has been drug free since that time. His evidence is supported by the evidence of his parents Mr B Vincent (‘the paternal grandfather’) and Ms Vincent (the paternal grandmother) (collectively ‘the paternal grandparents’); his partner, Ms G (‘the father’s partner’); and some urine tests.
From late 2015 to date, the child has been spending time with the father on a supervised basis. The outline of those occasions is set out in Exhibit E7.
Ms Wells (‘the mother’) is the child’s mother and has been bedevilled by health issues. Her medical difficulties are outlined in a report of the single expert. There is a challenge to the extent of those or the nature of those issues.
The mother has two children from an earlier relationship: Y, who is now aged 15; and Z, who is now aged 10.
These children see their biological father irregularly when he now travels the seven hours to visit them. There are no orders in place and, of recent times, the mother asserts that he has difficulties seeing the children as he has a broken leg.
There was a challenge as to the nature of the relationship between this father and those children. The only evidence I have is that of the mother, which I accept.
The father and mother were in a short relationship which only subsisted between February and October 2010. The parties did not live together, they did not marry, and the child was born after the parties had ended their relationship.
When the child was born, the mother was a sole parent. The child’s elder brother was aged about seven, and the second brother was aged just over two.
The mother had separated from their father in August 2009 and she was clearly struggling with the three children, her health difficulties and, soon afterwards, the health difficulties of Z.
Like many disasters, this one started with a series of events. First, was the question of the father’s illicit drugs addiction and the second was in terms of interaction between the paternal grandparents and the mother.
Like many stories, there are two views of that story. The paternal grandparents thought they were helping the mother and thought they were protecting the child when they retained her when she was aged about five and a half or six months. The mother took it that the child was being removed from her care and has carried that anger since that time. The mother needed to file an application for recovery and the child was only with the paternal grandparents about a week or so, slightly more or slightly less.
Those proceedings ended a year later in November 2012 with final parenting orders by consent providing the parties have equal shared parental responsibility, the child live with the mother, and the father spend time with the child on a regular basis.
Shortly after those consent orders were made, the mother asserts that there was a disclosure by the then 18 month old child to her then 10 year old brother of sexual abuse by the father, which was then conveyed to the mother. The mother did not seek medical advice in relation to that disclosure by the child until later that year, about 11 months later, and I will talk about that later.
The contact between the child, the father and the paternal grandparents was difficult for the remainder of 2013, and then there was a long period when the child had no time with the father or his family at all.
As I said earlier, since late 2015 to date, the father has been spending very limited supervised time with the child and this has been facilitated through a private supervision organisation. For most of that time, the mother had been living in Sydney. However, in about July 2018 or perhaps even August 2018, after her parents had moved to the D Town area, the mother moved down there with the child. That was a unilateral relocation of the child without the consent of the father and without engaging him in any way.
The father filed a case outline and, in his final submission, set out the orders that were sought.
Those orders provided for swift move from supervised time to unsupervised time then to overnight time. I have had regard to what is set out in that document.
In her case outline, the mother sought a much slower rate of change and that rate of change went to a time when there was unsupervised time during the day, but no overnight time, which reflected her views in relation to what ought to happen with regard to this child. I have had regard to the submissions of counsel and his case outline in relation to the precise nature of those orders sought.
An Independent Children’s Lawyer was appointed, and that is unsurprising in this case, and she was represented by competent counsel as were each of the parties. Tendered at the beginning of the submissions of the Independent Children’s Lawyer were orders which, in many ways, cut in the middle between those sought by the father and those sought by the mother.
THE ISSUES
The essence of the major disputes to be determined was, first, whether there ought to be an order that the mother have sole parental responsibility of the child with some limitations, which was supported by the Independent Children’s Lawyer, or whether there ought to be equal shared parental responsibility.
The second question was how quickly the change from supervised to unsupervised time should occur. The mother agreed that there ought to be change, but wanted it to occur at a very slow pace. The father wanted a faster pace of change and there was, of course, the difficult issue of overnight time. There was also questions in relation to the child’s surname and some other ancillary issues.
BACKGROUND
The father is aged 39. He is a tradesman who lives in Sydney with his partner. They recently moved into a new home and the home seems well equipped and there is a place where the child’s physical needs can be more than adequately met.
The father’s partner is a professional. She has been in a relationship with the father since 2016 and they commenced cohabitation in 2017. This would seem to be the longest and most stable relationship into which the father has entered given the history that was provided to me. In many ways it, perhaps, reflects the change in the father’s attitude to life, which, in a serious way, commenced in March 2014.
The mother now lives in the D Town area. She is not in paid employment, although she says she is seeking to retrain. She is aged 37. She has the care of the child and the child’s siblings.
I am told, and I accept, that it is about a three and a half to four-hour drive from D Town to Sydney and vice versa. The parties’ relationship to which I referred earlier was for that eight-month period.
The child had a lot to do with the paternal grandparents up to 27 November 2011, when they took, retained or protected the child, and I am not able to make a finding one way or the other and I do not think it helps to make a finding one way or the other. They were pretty good grandparents up to then and provided enormous support for the mother who was dealing with three young children as a sole parent.
The mother asserted that the child was at risk of sexual abuse in the unsupervised care of the father. However, this assertion was withdrawn by her counsel, and might I say sensibly, shortly before the hearing of the case outline. There was no evidence upon which to base it, although it is clear the mother, her father and the maternal grandmother still harbour beliefs that the child was abused.
Fresh proceedings were commenced in August 2015 and those proceedings initially were in the Federal Circuit Court, but were transferred to this Court in July 2017.
It is sad that these parties have been in this Court and another court for almost three and a half years. The resourcing of these courts could be much better and these parties would not have been trapped in this conflict for so long, and I acknowledge that, although there is little I, as a sitting judge, can do. The history is otherwise set out as I have set out earlier.
THE EVIDENCE
A family report was prepared and provided, and I have had regard to that. It was an exhibit in these proceedings. A report was prepared by Dr F a single expert psychiatrist and I have had regard to his report, albeit that it was about 12 months, before this hearing.
The father
The father gave evidence in terms of his affidavit, sworn 9 August 2018 and filed 16 August 2018. Its significant annexures were tendered in evidence and are Exhibit E9. I have gone to the parts of that exhibit to which I have been referred and I have had regard to it. As I indicated to counsel during the trial, I will treat it as being uncontentious in that there was nothing of any significance that would assist me in relation to the other parts of the exhibit which were primarily the reports of the professional supervisors, that the child’s time with the father went reasonably well and there is nothing of any major concern for the Court.
The father is a contradiction. At times, he was an impressive witness in terms of his determination to rid himself of the burden of being addicted. At other times, he was an unimpressive witness as he seemed to have little insight as to the impact of his drug use and failure to fully disclose his drug use to the mother.
In terms of equal shared parental responsibility, the father was cross-examined and conceded that he had not spoken to the mother in an effective way since 2011 and there would be difficulties in shared parental responsibilities.
I accept the evidence that the child is at times remote from him and at times the child plays well with him, but that is, in the circumstances, not unexpected. The child only sees him for a few hours each fortnight and that is not a basis upon which a meaningful relationship can be created or sustained. I was not impressed by the father’s evidence in terms of why he had not informed the mother of his relapse in 2014. The reality is that he just did not want her to know. In my view, he was concerned as to its impact on the mother’s perception of him and he was probably right at that time.
The father was cross-examined in respect of a relationship with another person in 2012. In that relationship, the father sought and received the protection of a Family Violence Order. It seems, however, that it was a tumultuous and difficult relationship at best. I do not know what to make of that evidence except to say that it is some seven or so years ago.
The father has a pretty good relationship at the moment. There was an episode raised in relation to where police were called in 2018. I am satisfied with the explanation provided by the father and his partner.
It was not their finest hour, but it was not, in my view, indicative of family violence. It was a verbal argument, which got out of hand in terms of contacting police.
I listened carefully to the father’s evidence as to why the Court ought not to follow the recommendations of Dr F in relation to time, and my sense was that the father was anxious to get on with parenting of the child. I can understand the father’s desire, but I need to consider that desire in the light of the evidence, not the single expert Dr F.
The father has limited insight as to the mother’s anxiety and her concerns about the wellbeing of the child in his care. It is clear from the father’s evidence that he has engaged with a process to remain drug free and has put systems around him and people around him that will ensure that this continues.
The father’s partner made it abundantly clear that she would not countenance a relationship with him if he was on drugs. The father shows limited insight into his understanding of his behaviour when he was addicted to illicit drugs in late November/early December 2011.
Clearly, his actions and reactions have been partly responsible for the conflict in which the parties now find themselves and to which the child is obliged to endure. I treat his evidence with some caution.
The father’s partner provided evidence contained in her affidavit, filed 16 August 2018. She was an impressive witness. She is in full-time employment. She is supportive of the father and is thoughtful and careful. She said, as I mentioned earlier, that she has zero tolerance for drugs and would end the relationship if the father engaged in the use of drugs.
She was aware of the father’s drug history and current abstinence. She has only seen the child once and smiled at her and received a smile back. That, in my view, is at least a good start. I accept her evidence as reliable, although it will, of course, be coloured by her love and affection for the father. I wanted to say of the father’s partner that she was a breath of fresh air when she gave evidence in this Court.
The paternal grandfather
The paternal grandfather gave evidence in terms of his affidavit, sworn and filed 22 August.
He gave evidence of ‘continuous obstacles’ which the mother had put in place in relation to seeing his granddaughter. It was a bit aggressive and that must be in the nature of his work and his forceful nature. However, it must be seen in the context of a grandfather who is grieving for the loss of a significant and meaningful time with his granddaughter. His evidence in relation to retaining the child in late November 2011 was, at some level, self-serving and he had no great insight into the impact of the mother.
He was aware of the father’s drug use and provided as much support as he possibly could in dealing with an adult child who was using drugs. His evidence was frank, but coloured by his support of the father and, at some levels, overly supportive of the father in the father’s case. It was, however, generally reliable, although I am not certain it would be positive in terms of the child’s relationship with the mother.
The paternal grandmother
The paternal grandmother, gave evidence in terms of her affidavit sworn and filed 12 March. Her evidence was, essentially, that of the paternal grandfather. She is a softer person and clearly loves the child and is a little more insightful in terms of the father’s behaviour and the other events that have passed. It is interesting, and I accept, that at times she endeavoured to reach out to the mother in early times. I treat her evidence as reliable, but also coloured by her support of the father.
The mother
The mother provided evidence in terms of her affidavit, sworn 5 September 2018 and filed 11 September 2018, together with the annexures attached to it. The mother confirmed her health circumstances as set out in the affidavit, but said she also suffered from migraines, but not such as they would impact on her care of the children, particularly the child. What was troubling in terms of the mother’s evidence was her frankness about the child’s absenteeism from school.
She was not frank in terms of the engagement of the Department of Family and Community Services and either did not know or was mendacious in terms of the amount of time that the child had off from school. It was deeply troubling looking at the times the child had off from school in 2016, 2017 and 2018. It was an agreed fact that this year the child has attended school 93.3 per cent of the time. One of the days that the child had off was the day to meet the Independent Children’s Lawyer so the reality is that the child was at school for a very significant period of time. That, it seems, is to the credit of the maternal grandfather who makes sure the children get to school every morning.
In one of those years, the child was, effectively, absent from school for a whole term. It is unsurprising that the Child Protection Authorities have become involved and that the mother was cross-examined in relation to these issues. Her answers about questions on this were littered with prevarication, obfuscation and, at times, fabrication. She said, probably correctly, that it was primarily about her middle son who was reluctant to go to school; however, the mother minimised the time the child was absent to school.
Fortunately, the child is presently doing well, but if this level of absenteeism continues, this child’s ability to meet educational milestones and meet her potential, because she is clearly a very bright and intelligent child, will be significantly compromised. If the levels of absenteeism continue, it is likely that one of two things or two things will happen: first, it is likely to invite the father to come back to the Court and challenge the consent parenting arrangements that this Court will put in place today.
Second it is also a possibility that Child Protection Authorities will become concerned about the level of absenteeism and take proceedings in the Children’s Court, which is less gentle at times than this Court, and it may well be that her care of all three children will come under question. That is a matter for the mother in relation to the other children and not a matter for me, but it is a matter for me with regard to this child.
The child refers to the father as ‘Lemon’ and the maternal grandparents as ‘Tomato’ and ‘Broccoli’.
The child did a drawing describing the father as ‘Lemon’, the maternal grandmother as ‘Broccoli’ and the maternal grandfather as ‘Tomato’ and adding “not my family”. I am not convinced that this came from the child alone. I am convinced, on the evidence, that this is likely to have been at least the atmosphere in the mother’s home. I accept the submissions of counsel for the father that it was disrespectful at least.
I am also satisfied that the lack of the child’s reference to her father as dad or the like has been directed either explicitly or implicitly by the mother or perhaps even the maternal grandmother. I cannot speak about her because she was not a witness in this case, but I can assume, and I do assume, that her evidence would not have assisted the mother. The encouragement of the child in this regard and the child’s lack of engagement with the father, whether through calling him dad, cuddling him or otherwise engaging with him is indicative of an atmosphere which I find pervades in the mother’s home and which is either led or countenanced by the mother.
When questioned in relation to this, the mother was, at times, petulant and seemed obtuse about the child’s adverse views of these significant people in her life. The mother gave evidence that she believed the child had been molested by the father. I accept that she believes that is the case, although there are no facts upon which she can seriously conclude that that is the case. I am also concerned that the child’s belief of this is encouraged and it is inherently improbable that the child was sexually abused, but the child is likely to believe that she was sexually abused, which, from her perspective, is likely to be as bad.
In terms of the mother’s evidence, I have carefully read the reports from the Department of Families and Community Services. I am not satisfied as to the reliability of the mother’s evidence, and when it differs from the reports of the Child Protection Authorities, I prefer that evidence. The mother was questioned as to why she had not undertaken counselling and her answer was inadequate.
The mother gave evidence of the fears of the child when, in fact, many of the fears of the child are fears of the mother which are reflected in the child. It was significant that the child had information about being locked in a car, broken cups, plates, touching, and the alleged use of syringe. Clearly that information either came from the mother or adult members of that household. I do not accept her explanation as to how it occurred. I am satisfied that the mother or someone else in her household reminds the child of those events and creates in the child a belief as to the accuracy of those given the relationship of the mother to the child.
Much of the issues are the mother’s fears and anxieties given the past with the father and her dislike of him. That is entirely understandable. She lived through his addiction and had a baby by him. I accept the submission by counsel on behalf of the Independent Children’s Lawyer as to her observations of violence at a time the parties were together. However, as I have said earlier, I will treat her evidence with great care as I have significant doubts as to the veracity of it.
Mr Wells
Mr Wells is the maternal grandfather. He was the second breath of fresh air in this hearing. He was criticised by counsel for the father, but he has stayed the course. He has managed to get the child to school. He has managed to get the child to visit the father for over three years in circumstances which could not have been easy at the start, but he did so and did so with grace and determination. On behalf of the Court, I thank him for that hard work, which would not have been easy.
He is an impressive grandfather. He takes his grandchildren to sporting activities, including the child’s elder brother’s, and is proposing to engage the child in basketball.
The maternal grandfather was criticised for not correcting the child in relation to the word ‘Lemon’. Given his evidence, he dealt with it in an appropriate way, and I make no criticism of him in that respect. He says the mother is a good mother and says that she does not sleep in. I generally accept his evidence as frank, but is coloured by his strong support of the mother and of his family. He maternal grandfather was not evasive. He was straightforward, and I accept his evidence as being reliable.
Dr F
Dr F is a single expert who provided evidence in terms of his report of 14 April 2018. There was no issue about Dr F’s qualifications. He saw the parties and the child in February and he observed at the start of his report, at page 2:-
I believe the risk of sexual abuse is not a central issue in this case as I believe the central issue is the mother’s trauma and the mother’s fear of losing the child, leading to the child’s anxious, insecure attachment.
He said further:-
I believe probably that the mother panicked when she realised the child was spending time with the father, who was addicted, and her anxiety was understandable, leading to a cessation of contact, although the fears of sexual abuse were not well-founded.
I accept his executive summary and it reflects my view of the factual matrix during the course of the hearing. His report provides a medical analysis of the mother and the father.
The mother was challenged about her medical history, although it seems much of that came to proof, and I will treat it as being relatively accurate. I am satisfied from the evidence of the single expert, Dr F, that the child, at least in the middle of spending time with the father, enjoys the time and clearly enjoys the time with the paternal grandparent.
The high fives and what-have-you are a credit to them and their persistence given they only see the child on very irregular occasions. When I make orders, I will note that there is nothing to prevent the father from engaging with his parents or his partner in time with the child during the times that the child spends with him.
In terms of the child, the single expert said the child’s anxiety and degree of insecure attachment responded to the mother’s hypervigilance and, further, the child was responding to a great deal of pressure. I accept that evidence. The single expert made recommendations, which I have substantially adopted, as did the Independent Children’s Lawyer. I am satisfied that the single expert evidence is soundly based in fact and was an appropriate exercise of his expertise.
FINDINGS
During the course of the hearing it became clear that the mother was concerned about the father relapsing into drug use. The father has been, as I said earlier, exceptional in terms of his dealing with drugs. I am satisfied on the evidence that he has not taken illegal drugs since March 2014 and has taken strong steps to maintain his abstinence. As I said earlier, he is to be commended because it is very rare we see illicit drugs addicts in this Court who escape the clutches of that dreadful drug. I am also satisfied that this child is close to her siblings, and that reflects on the parenting of the mother: that she has encouraged and maintained that good relationship.
I have already touched on the absenteeism, and I accept the submissions of counsel for the father as to the impact of those on the child, in terms of her education for the future, particularly for this very bright child.
I accept that the mother is anxious and I accept the single expert’s evidence in that respect. As I have said earlier, I find that the mother was not frank with the Court or Department of Family and Community Services and some examples are in relation to the child seeing a counsellor, which the mother said was past, but the materials made it clear it was current; her so-called throat operation, and engagement with H Childcare Centre and like. The mother had said to the Department of Family and Community Services that the father was in and out of rehabilitation. At that time that was not true. The father had been free of drugs since at least March 2014.
In this case, the mother and father have never parented together. I have had regard to that in terms of equal shared parental responsibility. Irrespective of the factual circumstances, the mother developed a serious fear that the child will be taken from her and this is also the view of the child. This undermined the previous good relationship that existed between the mother and the paternal grandparents. Her fears in this regard have persisted over many years. The orders that I intend to make and the processes I have put in place intend to ameliorate that.
First, I will be making an order by consent that the child live with the mother. This is so that the Independent Children’s Lawyer can inform the child that the Court has made an order, it cannot be changed without the mother’s consent or without an order of the Court, and that was not done against the will of the father, but was done with his consent. The second thing I have done is I made a helpful suggestion that undertakings should be given, and they were given, and put the paternal grandmother, paternal grandfather and the father’s partner at risk of gaol if they do not disclose if the father is violent or if the father goes back on to drugs. That is a significant imperative to them to keep the mother informed.
The mother was the victim of violence during the time with the father, although since March 2014 he has not presented as a risk of violence and is not a risk of violence at the present time, but that has, in many ways, impacted on the mother’s view of the father.
The mother, at some levels, finds difficulty in dealing with the anxiety that arises from it. She has to revisit times in her life which are difficult. To that extent, the Court will be making orders to provide that the material from the single expert, the family report and these reasons are available to her therapist and the child’s therapist so that the mother does not have to revisit times which have caused her such pain. I will be making the orders that the mother have counselling to address that issue so that her parenting of this child can be seen in the long term and not the medium term.
It is interesting. I talked about a dichotomy, in the father’s view. The mother has enabled the child to see the father. If the mother had stopped the father’s time with the child, it would not have occurred over the last three years. I give her credit for that, but at the same time she does not encourage it in a positive way. It is more of not putting a brick wall up, but not encouraging the child. Unfortunately, given the history of this matter, the child has become enmeshed by the mother given the conflict between the adults.
THE LAW IN REGARD TO PARENTING
The provisions of the Family Law Act 1975 (Cth) (‘the Act’) that deal with children are set out in Part VII of the Act, in particular s 60B articulates the objects and the principles underlying them as follows:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.
If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-
(a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;
(b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.
(c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.
Section 60CA provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the Court must consider the matters set out in s 60CC.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
(2)The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
(3)Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The House of Lords in J v C [1969] 1 All E.R. at page 824 Lord MacDermott said when considering rights of custody and deciding that the welfare of the infant as the first and paramount consideration said the following:-[1]
3.While there is now no rule of law that the rights and wishes of unimpeachable parents must prevail over considerations, such as rights and wishes, recognised as they are by nature and society, can be capable of ministering to the total welfare of the child in a special way, and must therefore preponderate in many cases. The parental rights however, remain, qualified and not absolute for the purpose of the investigation, the broad nature of which is still is described in the fourth of the principals enunciated by FitzGibbin, L.J. in re: O’Harra [1900] 2 I.R. at page 240
4.Some of the authorities convey the impression that the upset caused to a child by change of custody is transient and a matter of small importance. For all I know that may have been true in some cases containing dicta to that effect. But I think a growing experience has shown that it is not always so and that serious harm even in young children may, in occasion, be caused by such a change. I do not suggest that the difficulties of this change can be resolved by purely theoretical considerations, or that they need to be left entirely to expert opinion. But a child’s future happiness and sense of security are always important factors and the effects of change of custody will often be worthy of the close and anxious attention which they undoubtedly received in this case.
[1] Page 824.
These views were in many ways enshrined in the Act. The question of primacy of parenthood was in recent years discussed by the Full Court in the Yamada & Cain [2013] FamCAFC 64 where the appellant contended that the primary considerations contained in the Act had the intention to give primacy to parenthood in determining the best interests of the child.
The Full Court, comprising of Murphy & McMillan JJ discussed the importance of parenthood and the appellant submitted that ‘both the Act and Authority demand that significant weight must be attached to parenthood in making ‘live with’ orders and Her Honour paid no, or insufficient, regard to each’. Their Honours went on to reject that argument. The basis for that rejection was set out from paragraph 19 onwards.
The Full Court quite properly acknowledge that the fact of parenthood is centrally important in a decision about a child’s best interest. Further, that the primary considerations under s 60CC of the Act do not apply to non-parents however, the Court did not conclude that this gives primacy to being a parent per say. The Full Court quoted with approval the reasoning in Donnell & Dovey [2010] Fam CAFC 16 and said:-
25. In Donnell, the Court went on to say in the paragraph from which the earlier quoted passage emerges (at [101]) and the succeeding paragraph of the judgment:
However, [the fact that s 60CC(2)(a) makes no reference to non-parents] does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent. As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight.
We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent. For discussion of the relative importance of the primary considerations in comparison to the additional considerations see Marsden & Winch (No. 3) [2007] FamCA 1364 per Warnick and Thackray JJ at [77] and [78], Champness & Hanson (2009) FLC 93-407 at [101] to [103], Mulvany & Lane per May and Thackray JJ (supra) at [84] and Aldridge & Keaton (supra) at [74] and [75].
(Bold emphasis added).
26. Moreover, as was said in Aldridge, above, at [74], in respect of the Primary and Additional Considerations:
It is clear however from the EM that while the use of the word “primary” is intended to stress the importance of the considerations in s 60CC(2), in a particular case one or more of the considerations in s 60CC(3) may outweigh the primary consideration …
and more broadly, at [75]:
While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant …
The Full Court in Yamada & Cain (supra) went on to conclude:-
27.The broad enquiry as to the best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognise that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.
This is not a case where the presumption under s 61D of the Act applies as there have been allegations of family violence. However, I have considered the question of equal shared parental responsibility having regard to the facts as I have found them and the relevant factors under the Family Law Act 1975 (Cth).
THE SECTION 60CC FACTORS
Section 60CC(2)(a) the benefit of the child having a meaningful relationship with both the child’s parents;
The child enjoys a good relationship with the mother, although there was some concern about the nature of the attachment. The child is doing well at school, although there are the concerns about absenteeism, which I have discussed earlier. There is value for the child for her relationship with the mother to continue and value that she continue to be the primary carer of that child.
The father was addicted to illicit drugs in the past and I would not have concluded that there was a benefit of a child having a meaningful relation to him at that time because he would have exposed the child and the child’s family to too much danger. The father, clearly having regard to the child, has taken steps to resolve that problem. He will never, as I understand it, not be a drug addict, but he will, I suspect, not be a user of drugs into the future given his behaviour in the past. There is a benefit in the child having a meaningful relationship with her father. Such a relationship will enable her to form, hopefully, as positive a view of her father as she has about her maternal grandfather.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence;
The mother is concerned the father is still engaged in violence. On the evidence before me, I am not satisfied that the father has engaged in any violence since at least 2012. He has acted appropriately at the times when he has seen the child and has acted appropriately during the course of these proceedings, although, as I have said, at times with some lack of insight into his impact upon the mother and her family.
The mother is concerned about the father’s addiction to drugs, and I have put in place all of the mechanical devices that I can put in place to satisfy myself that the child is not at risk. These include the undertakings to which I have alluded earlier, the drug testing of the father over the next 12 months, and accepting the father’s evidence in relation to his own practices with regard to being mentored and mentoring others.
For the mother, can I say this: nothing can absolutely satisfy any parent or anybody in relation to a party who is addicted to illicit drugs. There is nothing that can be said to undo what has happened in the past, but given what this Court has seen the father’s recovery is impressive, and I use the word “impressive” carefully. That is not one that I often use because unfortunately I see a lot of people affected by illicit drugs in this Court and I cannot recall anyone who has recovered as well as the father over such a period of time. There are no guarantees in life, but at least this has moved a significant way.
There was the allegation of sexual abuse made by the mother. The single expert discussed that. The single expert provided an analysis of the allegation of sexual abuse, as did I when I considered the matter.
There are questions about whether the words used were within the verbal ability of a child, but the mother formed the view that the child had been abused. The mother did not persist with her submission that the child was at risk. However, I still have to consider the evidence and I am not satisfied that there is an unacceptable risk of the child in the unsupervised care of the father. I am satisfied that the mother’s views in this respect are likely to have been a misrepresentation. I could go further, but I am not sure the evidence is there for me to go further than that at this stage. I am not satisfied that the child is at unacceptable risk.
The next question is whether the child is at risk given the mother’s beliefs and the beliefs in the mother’s household. There is an element of risk in that regard, although that the mother has persisted with the time the father has had with the child and vice versa. The mother sensibly promotes unsupervised time in the future, I am satisfied that the mother, while she has those beliefs, is less likely to press them in the future than has been the case in the past. I am not entirely sanguine about the mother’s ability to cope with the anxiety of the father spending time with the child or the consequential impact on the child, and I will deal with that in the structure of the orders as best I can.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
In terms of the views expressed by the child, she is presently seven and a half years old. She has made it clear she does not want to spend time with the father. Much of that comes from views reflected within the mother’s home, and I have considered those views. However, I have given them little or no weight, as submitted on behalf of the Independent Children’s Lawyer.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
The child has a close relationship with the mother and maternal grandparents. When she was very little, she had a close relationship with the father and the paternal grandparents.
However, that was terminated by events of that time of which I have already spoken. The relationship between the father and the child is developing and has developed in a strong way given the limited time, similarly with the paternal grandparents. They have taken extraordinary steps to maintain that relationship and that tenuous contact. I am satisfied that there is a value for the child for that relationship to grow and develop, and to do so, I accept the evidence of the single expert that supervision must stop as soon as practicable.
Similarly the limitation on time the child spends with her paternal grandparents needs likewise to stop.
The child will need to be sensitively introduced to the father’s partner so that she can form a relationship with her as part of her extended family.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or has failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child;
(ii)to spend time with the child; and
(iii)to communicate with the child;
The mother has cared for the child since birth. I have earlier described the father’s early history and I see no point in repeating it here. However, since 2015 the father has been constant and determined to enable the child to have a relationship with him.
I accept the evidence of the single expert that that relationship ought to be encouraged.
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child;
The father is now paying appropriate levels of child support. There were no submissions made otherwise in that regard.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances; including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or person, (including any grandparents or other relative of the child, with whom he or she has been living;
In this case, one of the real issues is with regard to moving to unsupervised time. The parties and Independent Children’s Lawyer support that move, except the issue as to how that occurs.
I accept the evidence of the single expert that the parties need to move to unsupervised time as soon as practical. This is to be done, however, in a way that is sensitive to the needs of the child and does not undo the good that has already taken place.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
The mother’s unilateral decision to move to the D Town area in mid-2018 has made the child spending time with the father difficult. To the credit of the father, he has not made any significant objection to this in the context of these proceedings. I have considered the impact on the change for the child. There are difficulties in the child spending time with the father and those can be overcome with well thought out orders and submissions were made in that respect.
Section 60CC(3)(f) the capacity of
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child;
to provide for the needs of the child, including emotional and intellectual needs;
The mother has been meeting the child’s needs. She was criticised by the father, and rightly so, in terms of education. Whether this has only been addressed in the shadow of the Court or whether it is going to be addressed in the longer term, only time will tell.
It seems to me that there needs to be some protection for the child to ensure that she does attend school on a regular basis. I intend to make an order requiring the mother to have the child to attend school and attend school in a timely way.
The mother has had difficulties in parenting given the materials set out in the Department of Family and Community Services reports over the last 12 months. I will be making an order that she attend counselling and, hopefully, that might improve her ability to meet that need of the child.
I am satisfied that the father has the capacity to meet the child’s physical needs and eventually to meet her emotional needs as well, although he is unproven in terms of day-to-day care of the child. I sometimes wonder how he would have coped with a two year old, a newborn and a seven year old. It would not have been an easy task for the mother when she was in that position.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristic of the child that the court thinks are relevant;
I have had regard to the age of the child and her maturity.
Section 60CC(3)(h) if the child is an Aboriginal child or Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact on any proposed parenting order under this Part will have on that right;
There are no issues in relation to the child being an Aboriginal or Torres Strait Islander. I have dealt with the attitude of the child and responsibility of parenthood indirectly throughout the comments I have already made.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family; and Section 60CC(3)(k) if a family violence order applied, or has applied, to the child or a member of the child’s family any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for the order; and
(v)any other relevant matter;
I have also dealt with the question of family violence and family violence orders and made the findings earlier on.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
I am troubled about what needs to happen into the future. I am troubled that this child may be caught up in further litigation, which would do her no good at all and would mean that her whole of her childhood could be lost in proceedings such as these.
I will first deal with parental responsibility. I can tell the parties I swayed one way and the other throughout the hearing in relation to parental responsibility.
I was significantly impressed by the submissions by counsel for the Independent Children’s Lawyer as to the need for these parties to communicate and how poor the communication was, but at the same time I was concerned that the father needs to know what is going on at school. So if the child is away from school for a week, he can find out why. That balance I considered in terms of the best interests of the child and I have determined in this case that there ought to be an order for equal shared parental responsibility, notwithstanding the difficulties and notwithstanding that this goes contrary to the submissions of the Independent Children’s Lawyer. My task is to do what is best for the child.
In terms of residence, it is not in issue that the child should live with the mother. In terms of time, my concern with the mother’s careful submissions was that it would end up coming back to Court: how do we move from daytime to overnight if that is to happen? And to bring the parties – the parties have exhausted themselves emotionally and perhaps financially over the last few years. There needs to be some finality.
The father’s approach, eloquently argued by his counsel, I do not adopt because I am concerned with the evidence of the single expert that this may be absolutely counterproductive. I think the terms used by counsel for the mother was, “You have to step before you walk.” This is very much true in this case.
I intend to make long-term orders which will apply over the next three years to move to increased time over that period. In doing so, the mother will not be happy, and in doing so, hopefully the father will not be happy, but at least there is a pathway because my focus is on the child.
The child needs space to enable her relationship with the father to develop. As such, I have decided, with some changes, to follow the approach suggested by the Independent Children’s Lawyer. I will try and fit those into functional times. I have also made orders in relation to increasing time during school holidays over 2020 so there can be a build-up to time in that respect.
I will provide that when overnight time comes, it occurs for a period of time in the paternal grandparents’ home, in circumstances where they were strongly supportive of the child and a place where the child has some experience in the past, although it is unlikely she will remember any such experience.
I will put in place orders for Christmas Day, Father’s Day and Mother’s Day.
Obviously I will be making orders that the father not use or be affected by drugs while the child is in his care, and that the father continue to engage with an appropriate therapist. I will provide orders that the father undertake random drug and urine analysis.
I intend to make no orders in respect of the mother in that regard, having accepted the submissions of counsel for the mother.
In terms of the behaviour of the parties, I will make the normal order requiring the parties not to denigrate the other or members of their families.
I will make an order that the Independent Children’s Lawyer inform the child of the outcome of these proceedings, including that the father is now well and that the child will live with the mother, but spend more time with the father, however, in safe circumstances.
One of the issues before me was whether the father should travel to D Town over a period of about five or six months, which would be five or six trips. It was put to me by counsel for the father, that this would place the child in difficult circumstances over the bitterly cold winters of D Town.
I am going to put that order in place. There is no reason there cannot be family occasions for that day, so that the child can show the father the place where she lives. It will only be for a period of six visits over a relatively short period of time. I have put in place arrangements for Christmas, which will start at the end of 2020. I have also put in place orders regarding telephone contact, although I have expanded it to include other electronic contact.
The parties are in agreement that the child needs to have her father’s name on the birth certificate and I will make orders in that respect.
There was an order made in 2012 that the parties register the name of the child using the father’s name, not using the current name. I will be discharging that order. It seems to me that this child has a lot to deal with and the change of name will not be a significant feature in her life if it stays the same, but it may become another hat on which conflict can accrue in the future. If the child wishes at 18 she can change her name to whatever she chooses, but until then she will remain with the same name that she has had at school at the present time.
I do not intend to make any orders in relation to passports or overseas travel, except to warn the parties that under the orders, they have to jointly agree to a passport for the child and any overseas travel has to be with the consent of both parties or the order of a court exercising jurisdiction under the Act. I caution the parties, where issues of overseas travel arise, to be thoughtful about refusing to permit overseas travel. We see a lot of cases in these courts where there are sensible holiday arrangements such as to Bali or Fiji, absent volcanoes and political upheavals, or to other places, particularly with sport etcetera and it needs thoughtful communication.
As to the Independent Children’s Lawyer’s fees, I have listened carefully to the submissions on behalf of the father. However, the Independent Children’s Lawyer has incurred those fees. The father is in employment, owns a home or has an interest in a home and I am satisfied that he should pay half the fees. If I had the power, I would do the same for the mother, but she is legally aided and I am not empowered to do so in that respect. Accordingly, I make the following orders.
What I will do, I will hand to each of the Independent Children’s Lawyer and the counsel a copy of a draft of the orders that I am proposing. I do not intend that these orders will be perfected until Monday lunch time, so that if there are obvious mechanical problems, you cannot come back and say, “Look, your Honour got it wrong, there’s somewhere else you can go with that.” I am neither inviting you nor dissuading you from doing so. There is one for the Independent Children’s Lawyer herself.
As I said, those orders are there. I have picked up two errors so far when I went through them. That is in relation to order 4(a) where I have said order 6 and I need to amend that. And the calculation of hours in order 4(b) I think was wrong. Those orders will be perfected sometime early next week.
I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 14 March 2019
Associate:
Date: 22 August 2019
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