WADSLEY & CABASSA

FEDERAL CIRCUIT COURT OF AUSTRALIA

WADSLEY & CABASSA

[2020] FCCA 1089

Catchwords:
FAMILY LAW – Parenting – three year old child – whether the presumption of equal shared parental responsibility is rebutted – mutual allegations of family violence – allegations by the mother that the child has suffered physical harm in the care of the father – no effective co-parenting relationship between the parties – father seeks orders to change the child’s primary care and for the child to live with him – orders in the best interests of the child.

Legislation:

Family Law Act 1975 (Cth), ss.60B(1), 60B(2), 60CC

Applicant:

MR WADSLEY

Respondent:

MS CABASSA

File Number:

ADC 3383 of 2017

Judgment of:

Judge Kari

Hearing dates:

4, 5, 6 March 2020

Date of Last Submission:

6 March 2020

Delivered at:

Adelaide

Delivered on:

7 May 2020

REPRESENTATION

Counsel for the Applicant:

Mr Praolini

Solicitors for the Applicant:

C M Tucker & Associates

Counsel for the Respondent:

Mr Childs

Solicitors for the Respondent:

Matthew Mitchell

ORDERS

That all previous parenting orders in relation to the child X born in 2017, be discharged.
That the mother have sole parental responsibility for the child, save and except that she at all times keep the father informed in writing about any decision she makes in relation to the child’s education and medical treatment.
That the child live with the mother.
That the child spend time with the father as follows:
(a)Until 1 January 2021, from 10 am Saturday until 3 pm Sunday on three out of every four weekends.
(b)As and from 1 January 2021, each alternate weekend from 5 pm Friday until 5 pm Sunday;
(c)From 5 pm on the Saturday before Father’s Day until 5 pm on Father’s Day PROVIDED however that the father’s time pursuant to paragraph 4(a) and 4(b) herein is otherwise suspended on the Mother’s Day weekend;
(d)For Christmas PROVIDED however that the father’s time pursuant to paragraph 4(a) and 4(b) herein is otherwise suspended from Christmas Eve to Boxing Day:
(i)From 4 pm Christmas Eve until 3 pm Christmas Day in the year 2020 and each alternate year thereafter; and
(ii)From 3 pm Christmas Day until 4 pm Boxing Day in the year 2021 and each alternate year thereafter.
(e)That as and from the child commencing school:
(i)For one 5 day block in each of the school holidays at the end of Terms 1, 2 and 3, commencing on the Friday of the father’s time pursuant to paragraph 4(b) herein; and
(ii)For two 5 day blocks in the long school holidays at the end of Term 4, with the first commencing on the first Friday of the father’s time pursuant to paragraph 4(b) herein and the second commencing on the first Friday in January of the father’s time pursuant to paragraph 4(b) herein.
That all handovers of the child be effected at the Suburb A Police Station.
That the parties be restrained and an injunction is granted restraining each of them from:
(a)Discussing these proceedings with the child or in her presence or permitting anyone else to do so.
(b)Denigrating or criticising the other parent to the child or in her presence or permitting anyone else to do so.
(c)Physically disciplining the child or permitting anyone else to do so.
(d)Consuming alcohol or illicit substances for 12 hours prior to or during any time that the child is in their care.
That the mother facilitate and provide whatever authority may be necessary to permit the father to receive all information (at his own cost) that a parent would ordinarily receive directly from the child’s school and/or medical providers.
That the parties each notify the other of them by text message as soon as is reasonably practicable of any medical condition, significant health issue or illness or such other emergency suffered by the child whilst in their care.
That the parties at all times keep each other informed of their mobile telephone number for the purposes of text communication only in relation to the child.
That the proceedings otherwise be dismissed as finalised.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3383 of 2017

MR WADSLEY

Applicant

And

MS CABASSA

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings relate to X, who is only three years of age.
X’s parents conceived her three weeks into their casual relationship and they have never lived together.
While X has lived primarily with her mother since her birth, there is a genuine dispute between the parents as to her long term living arrangements; with the father agitating for a change of primary care such that X live with him.

Background

The short history of the parties and their relationship is as follows:
a)The Father was born in 1965 and he is presently 55 years of age.
b)The Mother was born in 1974 and she is presently 45 years of age.
c)The parties met in 2016 and the Mother fell pregnant approximately three weeks after they met.
d)The parties ended their relationship while they were on a holiday in the Country B, when the Mother was approximately six months’ pregnant.
e)The parties’ child X was born in 2016 and she is now three years of age.
f)Both of the parties have adult children from previous relationships:
i)The Father has two sons, namely Mr C and Mr D, who both live independently.
ii)The Father also had a daughter, namely Ms E, who was tragically killed in a motor vehicle accident involving her and the Father in 2006, when she was 11 years of age.
iii)The Mother has two daughters, namely Ms F and Ms G who both live with her.
g)The Father resides at his rural property at Town H, in the north of South Australia. He is unemployed and is in receipt of a Newstart Allowance.
h)The Mother resides at a rental property in Suburb J. She is employed as a Professional on a casual basis.
With respect to the parenting arrangements for X following her birth, the parties’ generally agree that the mother facilitated the father spending time with X as follows:
a)Following her birth, each alternate weekend alternating between time at the mother’s home one weekend and time at the father’s home each other weekend, with the mother travelling to Town H to facilitate time at the father’s home and the father staying at the mother’s home overnight in Adelaide for time at her home.
b)That arrangement continued for a period of approximately four months, after which time the mother asserts that she no longer felt comfortable travelling to the father’s home to facilitate time there. The father however continued spending time with X each alternate weekend at the mother’s home.
c)On about 5 June 2017, the parties attended mediation and they agreed that the father would spend time with X at his home each alternate weekend, with the mother dropping X to the father on a Friday evening and the father returning her to the mother’s home on a Sunday evening.
d)That arrangement continued for approximately four visits before being terminated by the mother due to an incident which took place at the conclusion of a visit with the father on 23 July 2017.
So far as the incident which took place on 23 July 2017 is concerned, there is no dispute in light of the evidence that I heard during the hearing that it involved physical violence. I shall return to this incident later in these reasons.

The litigation and events following the commencement of proceedings

The father commenced these proceedings on 16 August 2017. In his Initiating Application filed that day he sought orders that provided for:
a)The parties to share parental responsibility;
b)X to live with him; and
c)X to spend time with the mother for three nights each alternate week and four nights each intervening week (effectively a split week shared care regime).
Prior to the first hearing, but after the mother filed her responding documents, the father amended his Initiating Application and sought orders that provided for X to live with the mother and spend time with him initially daytime only on a supervised basis, but building to unsupervised daytime and ultimately overnight time.
Throughout the proceedings the mother has always pursued orders that she have sole parental responsibility and that X live with her and spend time with the father.
When the matter first came before the court on 7 November 2017, the parties agreed and orders were made providing for X to live with the mother and spend time with the father each Sunday with such time to be supervised by the paternal grandmother.
That supervised time regime continued until 1 June 2018, when the court made orders for the father to spend unsupervised time with X each Sunday from 9 am until 5 pm.
There was an incident at handover at the conclusion of the father’s time on 23 September 2018, resulting in the mother being charged with assault. I will refer to this incident later in these reasons, however at this juncture I note that the father’s allegations are that he noticed that the child had mouth ulcers during his time with the child that day, so he made a doctor’s appointment for her later in the day. As a consequence of the doctor’s appointment, he was late in attending handover at the police station that day and when he arrived the mother was angry and aggressive banging his car window and punching him in the head. While the mother has been charged with assault, she is contesting those charges and they are listed for a pre-trial conference sometime in April 2020. The mother’s position in relation to this incident is that she denies hitting the father and that the father has acted opportunistically in having her charged.
On 15 October 2018, the court made orders increasing the father’s time with X such that she began spending three out of every four consecutive weekends with the father from 9.30 am Saturday until 3 pm Sunday.
On 26 April 2019, orders were made by the court pursuant to section 62G for a Family Assessment and Report to be completed.
Across 2019 there were two occasions in which the mother asserts that X returned to her after time with the father with injuries she fears were caused either by the father intentionally or through lack of attention and adequate supervision of X on his part. Again, while I will deal with these allegations later in these reasons, I summarise the allegations as follows:
a)On 21 April 2019, X returned from the father’s care with a large burn on her chest. There is a dispute as to how X suffered this burn, with the father asserting that it occurred when X was eating popcorn chicken purchased from KFC.
b)On 7 July 2019, X returned to the mother after spending time with the father with red marks to her face, which later developed into bruises. The mother asserts that X disclosed to her that “daddy hit me”.
These alleged injuries to X, together with additional concerns the mother has raised about X’s presentation after spending time with the father, culminated in the mother withholding X from the father from approximately 7 July 2019. The mother withholding X in turn resulted in the father filing a Contravention Application on 15 July 2019.
The timing of the mother withholding X from the father was shortly prior to the appointments that had been scheduled with Ms K for the purposes of the Family Assessment. It is the father’s position that the mother intentionally frustrated his relationship with X in the lead up to the assessment process.
The report was prepared by Ms K and is dated 2 September 2019.
Ms K made recommendations in her report as follows:
a)That in the event that the court considers that the X was not at risk in the father’s care, then she live with the mother and spend time with the father each alternate weekend; and
b)That in the event that the court considers that the mother had intentionally mislead the court regarding risk to X in the care of the father, then the court give consideration to shifting primary care of X to the father.
Ultimately and following the release of Ms K’s report, the parties were able to reach agreement at a family dispute resolution conference on 16 October 2019 for there to be a resumption of the father’s time with X, albeit on a reduced basis of 9 am to 5 pm each Sunday. This time spending arrangement has been in place since that time.
The father now seeks final orders that provide for:
a)The parties to share parental responsibility;
b)X to live with the father; and
c)X to spend time with the mother essentially in the reverse to the arrangements that were in place for his time with X, albeit that he proposes that the mother spend time with X for three out of every four consecutive weekends from 5 pm Friday until 5 pm Sunday together with time on special occasions and extended periods of time during the school holidays.
The mother continues to pursue orders that provide for;
a)The mother to have sole parental responsibility for X and X to live with her; and
b)X to spend time with the father from 10 am Saturday to 3 pm Sunday on three out of every four consecutive weekends until the end of 2021, and thereafter for the time to move to alternate weekends from 5 pm Friday until 5 pm Sunday together with times for special occasions.

The Law

Part VII of the Family Law Act 1975 (Cth) (“the Act”) is where the legislative provisions concerning parenting cases can be found. The purpose of the legislation is to provide a pathway for the court when making parenting orders. The central focus underpinning the legislation is to make parenting orders which are at all times in a child’s best interests.
A parenting order can encompass and deal with all aspects of a child’s care, welfare and development, or any aspect relating to the parental responsibility for a child.
In making any parenting order the court must have regard to the aims of the legislation set out in section 60B(1), which provides as follows:
(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.
The principles underpinning the aims of the legislation are contained in section 60B(2) which provides:
(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).
In determining what is in a child’s best interest, the court is to have regard to a long list of considerations set out in section 60CC of the Act. Those considerations are separated into primary considerations and secondary considerations.
The primary considerations to which the court is to give greater weight are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations are:
(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 Act provides a presumption that parents should have equal shared parental responsibility for their children. However, that presumption can be rebutted in certain circumstances, and in particular the presumption does not apply where there are reasonable grounds to believe that a parent has abused the child or engaged in family violence.

The approach

In the current circumstances where the mother has sought sole parental responsibility, it is important that I consider whether the presumption for equal shared parental responsibility has been rebutted.

I accordingly propose to approach consideration of the matter with reference to the relevant legislative provisions and the evidence of the parties, in the following way:
a)Firstly, to determine whether there is a basis to depart from the presumption that the parents are to share parental responsibility of X; and
b)Secondly, to have regard to the section 60CC considerations to determine what orders are in X’s best interests.

The Witnesses

During the trial I heard oral evidence from each the mother and the father and the mother’s adult daughter Ms F. Each of those witnesses relied on an affidavit that they had filed in the proceedings.
I also heard evidence from the family consultant Ms K with respect to her report dated 2 September 2019.
In addition, I received into evidence without challenge an affidavit from the paternal grandmother Ms L, which had been filed on behalf of the father.
So far as the evidence of the mother and the father is concerned, I formed the impression that both gave their evidence in a forthright manner; with each of them making admissions about their own behaviours and conduct to their own detriment. Despite this, there remain many inconsistencies between the parties’ evidence on a range of topics, particularly those related to the allegations surrounding various incidents, which created identifiable flashpoints of conflict and difficulty between the parties. I will attempt to deal with these disputes between them as best I can.
So far as the evidence of the mother’s daughter Ms F is concerned, I formed the impression that she was a candid witness. Her evidence did not strike me as being concocted or embellished. Rather her evidence appeared to have a “ring of truth” to it and was delivered with detail and precision without being infected by high emotions.

Is the presumption of equal shared parental responsibility rebutted?

In order to determine whether the presumption of equal shared parental responsibility is rebutted, I have had regard to the allegations that have been made by the parties. It appears to me that the central allegations are:
a)Allegations of family violence including but not limited to physical violence and also family violence fitting within the broad definition set out in section 4AB of the Act, and in particular whether there has otherwise been physical violence between the parents and members of their household and whether there have been repeated derogatory taunts between the parents.
b)Allegations that the child has suffered physical harm at the hands of the father in two separate incidents in April and July 2019.

Incidents of physical abuse and derogatory taunts between the parents

The mother alleges that there was an incident of family violence when she was pregnant with X. She asserts that the incident arose in circumstances where:
a)It was a hot day and she was driving along M Road (a two carriage highway) with the father a passenger in the car, when she and the father got into an argument.
b)The mother asserts that the father punched her in the face, grabbed the steering wheel and tried to pull the car off the road.
c)The mother says that once the car was off the road, the father left her on the side of road and that her eldest child Ms G had to retrieve her and take her home.
The father asserts that the mother was the aggressor during this incident and that he suffered a blood nose after she punched him.
While the father denies punching the mother in the face or leaving her on the side of the road, he gave oral evidence that:
a)The car was travelling at between 100-110 kilometres per hour.
b)He wanted to go home as he did not want to go to the shop and look at the item that the mother wanted to look at, which resulted in the parties arguing.
c)He asked the mother to pull over, and when she did not he “applied the handbrake slowly”.
d)He could not recall if he grabbed the steering wheel as asserted by the mother, but ultimately acknowledged that after applying the handbrake he “guided” the car off the road.
When challenged about the incident, the father was asked why he did not simply go to the shop as planned or let the mother drive the car to the side of the road herself. The father’s response to those questions was concerning, in so far as he claimed that as the mother was driving his car and had refused to turn the car around and go home, he thought it was appropriate to take control of the car and apply the handbrake.
When challenged about the inherent danger of applying the handbrake to a car driving at speed on a main highway, the father attempted to minimise his actions and downplay the incident by asserting that he was experienced in applying a handbrake in emergency situations. When asked to explain this answer, the father gave evidence which made it clear that he had no specific training of applying a handbrake to a car driving at speed, other than his experience in driving a car and doing handbrakes in his youth on country roads and in paddocks.
The totality of the father’s evidence regarding this incident is concerning, as it became apparent to me that he was seeking to minimise and justify his behaviour in what appears to have been a dangerous set of circumstances.
In light of the father’s evidence, I do not accept that he was not the aggressor that day. Rather, I accept the mother’s assertions that the incident was a serious and frightening incident of family violence perpetrated against her by the father, and to that end:
a)I do not accept that the father applied the handbrake “slowly” and that he carefully “guided” the car to the side of the road. Rather given the speed at which the car was driving on a busy highway and bearing in mind the parties both assert that they were having a heated argument where they each allege they were punched by the other of them, I consider it far more likely that the father did indeed grab the steering wheel and apply the handbrake with some aggression and force.
b)I also consider it likely that the father is the person that became physical with the mother during the altercation, given the mother was driving the car at high speed on a highway.
As for the allegation that the father left the mother on the side of the road, it is difficult for me to determine the veracity of this assertion made by the mother in light of the evidence that I heard from the parties. I also did not have the benefit of any evidence from Ms G.
In any event, I do not consider it necessary to make any findings with respect to this aspect of the incident given my view is that regardless of any such finding being made, the balance of matters to which I am satisfied leave me in no doubt that this was a very serious and dangerous incident of family violence perpetrated by the father against the mother during her pregnancy.
The mother also alleges that prior to X’s birth and following, she has had to endure repeated derogatory taunts from the father.
I am able to make findings about these allegations easily, as the father made significant concessions during his oral evidence as to the range of names which he called the mother prior to X’s birth (which he admitted he often yelled or said in anger), including calling her a “skanky whore”, a “slut”, a “junkie”, a “drug addict” and telling her to “fuck off”.
While the father readily made concessions that this is how he referred to the mother, he was initially unable to give any examples as to when or why he might have directed such taunts and verbal abuse at the mother.
The father did however give evidence that he would often yell the taunts at the mother when she was “annoying” him or “getting under his skin” or to “get back at her”.
When pushed to recall an argument when he might have used those terms towards the mother, he ultimately recalled occasions when he taunted the mother in this fashion when she was interrupting his television viewing by wanting a conversation with him, or by doing the dishes too loudly, or by asking him to turn the television down as she wanted to go to bed.
These day to day examples that the father provided as occasions of when he would likely have verbally taunted the mother are concerning. That the father considered it appropriate to speak to the mother in derogatory ways during these routine daily exchanges, leads me to find that it was the father’s common and routine behaviour to refer to the mother using inflammatory and derogatory terms.
Importantly, the father did not give any evidence that at this stage the mother in any way behaved aggressively or inappropriately or that she directed derogatory taunts towards him.
When I couple the father’s evidence in this regard with the incident which took place during the mother’s pregnancy on M Road, in my view the father’s behaviour can be described as controlling, manipulative and belittling, and certainly fitting within the definition of family violence.
Given the casual nature of the parties’ relationship up to that point, it appears to me that these events have set the scene for the difficult co-parenting dynamic that has existed between the parents since after the birth of X.
I am mindful that during the trial I heard extensive evidence during cross examination of the mother about a series of text messages passing between the parties on or about 26 December 2018, as a result of confusion that arose regarding handover arrangements that day. Those messages from the mother are nothing short of appalling and stand in stark contrast to the entirely proper tone of messages from the father during the exchange. In those messages the mother among other things refers to the father as a “cunt face”, “paedophile”, “drunk”, “loser” and “kid killer” (presumably in reference to the father’s child who had died in a car accident). In addition, and even more appallingly, the mother made inflammatory remarks that the father should read “the paper work resting on your mums back while you fuck her” (in reference to the paternal grandmother and court orders), and told the father he should “shoot” himself.
During the trial the mother readily and immediately without any prompting acknowledged from the outset that the messages were wholly inappropriate and she did not resile from that position when the entirety of the text exchange was put to her in all its lurid detail. The mother even went so far as to apologise to the paternal grandmother (who was in court supporting the father) for the comments that she had made about her in the messages; albeit that in doing so she uncharitably gave evidence that left the impression that she considered that the paternal grandmother was providing too much support to the father, whom she considered to be incapable of dealing with his own life issues.
The mother in addition gave evidence that historically the father had behaved equally badly in text messages, but said that she had not kept copies of those records.
In light of the mother’s admissions I am in a position to make findings that the mother in more recent times has sent inflammatory and degrading texts to the father, and that she generally has a very poor attitude towards the father and the paternal grandmother.
I am not in a position to make findings about the mother’s allegations about the nature of the father’s historic text messages to her.
Whether or not the father sent messages of this nature to the mother is a separate issue. At the very least I am satisfied that the text messages sent by the mother are emblematic of the very poor co-parenting dynamic that exists between these parents.
From my perspective, neither of the parents have behaved optimally when it comes to the way that they have each spoken to each other or communicated with each other generally or by text message. There can be no excuse or justification for the appalling manner with which they have each seen fit to address each other from time to time, and they would be well advised to reflect and recalibrate their behaviour in that regard.

The incident at handover on 23 July 2017

I heard significant evidence during the trial from each of the parents and the mother’s adult child Ms F, about the altercation that occurred at handover at the conclusion of the father’s time at approximately 6 pm on 23 July 2017, which precipitated the commencement of these proceedings.
From the evidence that I heard from each of the witness’, there can be no doubt that the incident was certainly one that quickly escalated out of control.
From the oral evidence of the parties it appears:
a)There had been a dispute as to handover arrangements that day as the mother had refused to effect handover at the commencement and conclusion of the father’s time in the fashion that the parties had previously agreed.
b)Prior to handover at the conclusion of the father’s time with X, the father contacted the mother and asked for certain items to be made available for his collection when he returned X to her home. Those items included what the parties described as an “orange vibrating exercise platform” and weights.
c)The father arrived for handover and instead of bringing X to the front door to effect handover, he left her in the car and went to the mother’s front door in order to retrieve his items.
d)The father acknowledged that he was frustrated when he arrived at the mother’s home as he was worried that the mother was attempting to intentionally rile him up.
e)When the mother came to the front door, she told the father that his items were in the shed/carport and could be collected by him as they were too heavy for her to lift.
f)The father gave evidence that he did not want to go into the mother’s home as he was worried that “something would happen”, and he acknowledged that he likely said words to the effect that he did not want to “step foot in your fucking house”.
g)The father acknowledged that he then ran to his car (where X was) and told the mother that he would not be effecting handover at the mother’s home and that it would now be taking place at the police station. During his oral evidence the father reflected and sought to justify this decision by saying that he still had 15 minutes of time left before he was due to hand over X.
h)The mother says that by that stage she became distressed and angry and ran after the father jumping on his back “like a koala” and called for her children’s assistance together with that of her friend Ms N who was visiting her at that time. While this allegation was not put to the father, I consider this to be an admission against the mother’s interest and I accept that this occurred.
i)The mother says that she was then thrown to the ground by the father. I also accept that it is likely that this occurred, particularly in light of the oral evidence that the father gave in relation to the totality of his conduct during the incident which I will discuss shortly.
j)By this stage Ms G and Ms F had come out of the home, and the parents and the adult children made their way to the car, where the mother and Ms F attempted to get X out of the car, but the father prevented that from occurring.
k)The mother and Ms F alleged that during this scuffle and as they were each leaning into the car, the father punched Ms F in the face. The mother gave evidence that she believes that the father did not intend to hit Ms F, but that he “snapped” and Ms F was punched.
Significantly, the father gave evidence in which he ultimately acknowledged:
a)That as he was making his way to the car he had pushed the mother’s daughter Ms G with sufficient force to cause her to fall to the ground.
b)That when Ms F leaned into the car to retrieve X there was “a lot going on and tensions were high”.
c)That when Ms F leaned into the car, he was trying to push her away and was punching in her general direction and that he thinks he “only hit her once” but that he did not know where he hit her during the scuffle.
d)That it was quite possible that he hit Ms F in the face but he did not see any injuries.
In light of the admissions ultimately made by the father, it is apparent that the scuffle did indeed result in Ms F being punched and I accept her evidence that she was punched in the face.
This incident is concerning however not just as a result of the physical violence which Ms G and Ms F endured, but also as a result of what appears to be the father’s unreasonable attitude that day which resulted in what should have been a simple handover escalating entirely out of control.
The father ultimately acknowledged in his evidence in response to a question from the bench that he should have handed X to the mother rather than insisting that the handover occur at a Police Station. It appears that in hindsight and when challenged about his behaviour that day, the father was able to see the error of his actions. It is however concerning that it took the process of cross examination for the father to acknowledge the inappropriateness of his behaviour; particularly as nowhere in the father’s trial affidavit filed 18 February 2020 does he make any concessions about the physical aggression he directed towards Ms G or Ms F that day. Indeed when reading the father’s trial affidavit and attempting to reconcile his description of events in that document as against the oral evidence that he gave during the trial, it is clear that the father was downplaying the seriousness of the incident and shirking entirely from the seriousness of his actions and their impact that day.
As a result of this incident, and bearing in mind that at this stage the mother had endured a serious incident of family violence during her pregnancy, and that she had been exposed to repeated derogatory taunts from the father, it is no surprise that the mother took the view that she was not prepared to facilitate the father’s relationship with X unless she could be satisfied that X would be safe.

The incident at handover on 23 September 2018

During the trial I heard evidence from each of the parties about this incident resulting in the mother now facing charges of assaulting the father.
There is a dispute between the parents about whether or not X actually had mouth ulcers that day. The mother asserts that X did not have any mouth ulcers that day, and that the father was attempting to manufacture an issue over her care of X. I am unable to determine the dispute over whether or not X was suffering from mouth ulcers that day because I do not have the benefit of any independent medical evidence. While it is open to me to draw an inference against the father for his failure to provide any evidence of the medical appointment and/or the opinion of the doctor that consulted X, it is not necessary for me to determine this dispute.
In light of the evidence given by the father during the hearing, there are however more serious concerns that flow from this incident which are worthy of closer attention.
The father gave evidence during cross examination which made it clear that:
a)He noticed that X had ulcers just before lunch during his regular Sunday visit, so he promptly made what he described as an “urgent” medical appointment for X for 4.45 pm that day.
b)He did not attempt to contact the mother to raise his concerns or to see if she had them in hand or if she wanted to take X to the doctor herself.
c)He sent the mother a text message while he was at the doctor’s surgery just prior to handover, advising the mother he was at the doctors with X and that he would be running late.
d)He considered it his “parental right” to deal with any medical issues that arose regarding X during his time.
The mother gave evidence, which I accept, that upon receiving the father’s text message advising that he would be late as he was at the doctor with X, she repeatedly attempted to call and text the father without success.

This tranche of evidence from the parties raises concerns, because it evidences among other things the state of the dysfunctional co-parenting dynamic that exists between these parents together with the father’s lack of insight as to the impact of his behaviour that day on the mother; particularly as the father in all of the circumstances should have been able to anticipate that the mother would have been distressed by the late handover, coupled with being told that the father was at the doctor with X without being given any information as to why and then further compounded by the father not answering the mother’s calls and text messages.
In addition, in my view the father did not provide an adequate explanation as to why he did not inform the mother about the appointment as soon as he had made it. Had he done so, he might have been able to avoid all that is alleged to have ensued thereafter.
While not excusing the altercation that is alleged to have occurred between the parties when handover was effected, given the chronology of how events unfolded that day (and against the backdrop of the parties relationship and the incidences of family violence already referred to), it is not surprising that the mother was in a heightened emotional state when the father finally arrived at handover with X.
So far as the altercation that resulted in the mother being charged with assault is concerned:
a)I accept that both parties were agitated and emotional by the time that handover was effected.
b)The mother candidly admitted, and I accept, that when the father arrived at handover she was not only distressed and angry, but that she “bashed” the father’s car window and called him a “prick” before getting X and leaving.
c)I accept and I prefer the mother’s evidence that she did not hit the father that day and that she was surprised to learn some time later that she had been charged with assault.
What is of additional concern about this incident is the lengths the father appears to be willing to go to, to have the mother dealt with by authorities.
I have formed this concern not only as a result of this incident, but also because during the trial the father additionally volunteered without compunction and for no apparent reason that he has engaged in communications with both the police and a reporter from the Advertiser newspaper about the mother’s alleged knowledge of events relating to the disappearance of a prominent member of an outlaw motorcycle gang.
While the father’s evidence about this was somewhat muddled, it appeared that he was not suggesting that the mother had engaged in any criminal conduct herself, but that she had witnessed certain events which may be of interest. The father identified that he had initiated the communications with the police and the reporter as he was “trying to get my daughter back”, and that it was his belief that the “community had a right to know” about these matters and he was concerned that these events would eventually “catch up with” the mother.
I found the father’s explanation about these matters entirely confusing. In particular, it was impossible to reconcile how the father thought speaking with a reporter to have him publish an article in the mainstream media about the mother and her knowledge, could have possibly been acting in X’s best interest, particularly as it had the potential to put the safety of X and the mother at risk.
Moreover, the father’s repeated justification that he had initiated these communications to “get my daughter back”, makes me concerned that the father appeared to be prepared to go to significant lengths in an attempt to secure the primary care of X, without regard for the significance of the mother’s role in X’s life, nor the potential safety risk he was exposing the mother and X too if I accept the father’s evidence that the mother’s knowledge would one day catch up with her and was placing X at risk in the mother’s care.

The incident on 21 April 2019 when X returned to the mother with a burn to her chest

There is no dispute between the parties that X was returned to the mother after her time with the father on 21 April 2019 with a burn to her chest.
There is however a dispute as to how that burn occurred and the seriousness of the burn, and in that regard:
a)The father asserts that the burn occurred at around 3pm on a Saturday when a hot piece of popcorn chicken fell down X’s top; the father having given X a cup of popcorn chicken while in the car after driving through the KFC drive-through.
b)The father additionally asserts that the mother doctored the photographs of the injury to X to make it “look worse” by applying “filters” and blurring the colour and edging.
c)The mother does not accept that the burn was a result of a wayward piece of hot popcorn chicken and she denied having photo-shopped the images of the burn.
During the trial the father was cross examined at some length about this incident, and he acknowledged:
a)The burn was a significant size.
b)He had made a bad judgment decision in giving X the hot cup of popcorn chicken while he was driving.
c)He administered “manuka honey” to the wound and otherwise telephoned his sister who is a nurse and asked her what he should do, but she told him everything was “ok”.
The father was challenged about why he took X to the doctor for alleged mouth ulcers he considered the mother was not properly treating, but had not taken X to the doctor for what by all accounts was a significantly sized burn. It was put to the father that he did not take X to get medical treatment as he was more concerned that the mother might use this incident as a basis to reduce the father’s time with X. In response to that challenge the father asserted that as he considered the burn was only superficial and that as he had applied Manuka honey and spoken to his sister, he did not think he needed to do anything else.
I do not accept the father’s allegation that the mother has doctored the images of the burn. This appears to me to be nothing more than a bold assertion by the father to deflect attention and is not supported by any evidence.
In looking at the photographs of the injury suffered by X, it is obvious to me that the burn was indeed far more significant than a superficial burn as asserted by the father. While I am not a medical professional I do have some serious doubts that the burn was caused by a piece of hot popcorn chicken falling down X’s top. Unfortunately, I do not have the benefit of any medical evidence that would assist me in determining the cause of the burn, or to assist me to exclude that the burn was caused by a hot piece of popcorn chicken. While I am not satisfied with the father’s explanation as to the cause of the burn, I accept that it occurred accidentally and not as a result of the father intentionally setting out to harm or injure X.
I am however concerned at the way the father handled this incident, particularly when I consider it alongside his behaviour on 23 September 2018. The only logical conclusion that explains the disparity in the father’s decision to get medical treatment on 23 September 2018 and not on 21 April 2019 is in my view that asserted on behalf of the mother, namely:
a)That the father was attempting to bolster his case for primary care during the incident on 23 September 2018; and
b)That the father was attempting to limit the amount of criticism that might be levelled at him, which might impact upon his chances of securing orders that X live primarily with him during the incident on 21 April 2019.
I am prepared to accept this proposition not only in light of what occurred in relation to those two incidents, but also because it is my view that the father generally throughout his evidence attempted to downplay and minimise all occasions when he has acted poorly (and in particular with respect to the incident when the mother was pregnant and the incident at handover on 23 July 2017).

The incident on 7 July 2019 when the mother asserts that X returned to her with injuries to her face

This allegation is based upon the mother’s concerns that X returned to her after time with the father unkempt, distressed and with bruising to her face which developed and worsened over the following days.
The mother asserts that X told her “daddy hit me”.
The father denies that he caused any injury to X. Rather he asserts that the mother caused the injuries to X.
It is difficult for me to make any findings in relation to these allegations based on the evidence that I heard from the parties, and in the absence of any medical evidence.

Comment in relation to the mother’s decision to cease the father’s time in July 2019

In light of the findings that I have made in relation to all of the events that have occurred in X’s short life (and when the mother was pregnant), it is my view that the mother did not act unreasonably when she determined to suspend the father’s time on 7 July 2019.
I do not accept the father’s assertion that the mother was acting maliciously or that she was trying to alienate him from X.

The Evidence of the Report Writer

Ms K (a Family Consultant who is a qualified Social Worker) prepared a Family Assessment Report on 2 September 2019, following a series of interviews with the parents and X on 9 August 2019.
Ms K gave oral evidence at trial and was cross examined by each of the parties.
Her professional opinion has been of assistance in this matter.
In her report, Ms K commented that “the parties share no effective co-parenting relationship. Conflict remained high and seemed entrenched”[1]. Based on the evidence that I heard from the parties during the trial, this aptly sums up the dismal state of the relationship between the parents.
[1] Family Report dated 2 September 2019, paragraph 31.
During observed interactions between X and the father, Ms K formed the view that those interactions were a “delight to observe”[2], and in particular:
a)X appeared happy and settled in the father’s care, despite not having seen him for 6 weeks; and
b)The father engaged X in age appropriate play and spoke to her appropriately and was attuned to her developmental needs and ability and emotional needs.[3]
[2] Ibid paragraph 56.
[3] Ibid.
During a brief observed interaction between the mother and X, Ms K commented on the “natural and familiar” engagement between the pair, and formed the view that the mother and father had a similar gentle and calm style of engaging X.[4]
[4] Ibid paragraph 58.
Ms K however noted that the allegations of family violence, parental alienation and possible neglect were central aspects of the matter.[5]
[5] Ibid paragraph 60.
Given the allegations made by each of the parents, Ms K opined as to various potential appropriate outcomes for X dependant on the findings ultimately made by the court.
Significantly, Ms K recommended that if the court accepted the father’s allegations that the mother was intentionally misleading the court on the question of any risk to X in the father’s care, and that she was intentionally alienating X from the father, then she formed the view that there was some merit in supporting the father’s proposal for primary care of X.[6]
[6] Ibid paragraph 65.
As already discussed, these are not findings that I have made in light of all of the evidence that I have had the benefit of assessing.
Ms K additionally recommended that in the event that the court did not consider that X was at any risk in the care of the father, then the father’s time should be increased “after a period of 6 months such that X’s time with her father be each alternate weekend Friday to Sunday”.[7]
[7] Ibid paragraph 68.
Ms K also formed the view that in light of the level of dysfunction in the co-parenting relationship between the parents, parental responsibility should be held solely by whomever the court determined X should primarily live with.[8] This is an opinion she did not shift from during her oral evidence as she considered that there were likely to be significant impracticalities of these two parents being able to effectively co-parent as X gets older. Ms K did however consider that “at the very least” the parent with sole parental responsibility should keep the other parent informed of any decisions that they make in relation to X.
[8] Ibid paragraph 66.
During her oral evidence, Ms K was asked by the father’s counsel about the impact of a poor co-parenting relationship upon a child, and in particular, she was asked to reflect how a child might be impacted if they lived with a parent who did not engage with them in any discussion about the other parent. Ms K was asked these questions as the mother had given oral evidence of this nature during the trial. In response, Ms K proffered that this type of parenting would not assist a child who was struggling living between two homes as it sends the child a “clear message not to connect with the other parent”. In addition Ms K commented that if the child was aware of there being conflict between her parents, then the child would not be confident to express any feelings of joy or happiness about the other parent for fear of upsetting or hurting the primary carer.
Ms K was later asked by the mother’s counsel about X’s presentation and the mother’s parenting of her. Ms K reflected on the ease with which X transitioned between both of her parents for the observed interactions, and the general positive interactions between X and each of her parents. Ms K considered that X did not presently appear to be effected by the poor co-parenting relationship between the parents. Ms K considered that it was very likely that X’s young age at this stage was protecting her from the more harmful aspects of the poor co-parenting relationship between the parents.

Conclusion as to Parental Responsibility

Given all of the findings that I have made and the matters I have considered and discussed in these reasons, I consider that circumstances exist which rebut the presumption of equal shared parental responsibility both because of the incidences of family violence which have occurred and also because it is abundantly clear to me that in all of the circumstances the co-parenting relationship between the parties is fractured beyond repair making it impossible for them to share parental responsibility.

Best Interest Considerations

I have already considered several of the considerations set out in section 60CC of the Act when discussing the various allegations that have been made by the parties.
I now intend to only discuss those relevant factors that I have not already considered.

The Primary considerations

It is apparent to me that both parents acknowledge the benefit to X in being able to have a meaningful relationship with the other of them.
Each of the parents have however raised concerns about whether or not X is at risk of harm in the care of the other of them.
I am not satisfied that X has suffered any harm or is presently at risk of any harm of any nature in the care of the mother.
While I have some concerns about the father’s conduct (particularly arising as a result of the evidence I heard in relation to the burn that X suffered), it is my view that X is not ultimately at risk of harm in the father’s care.
I have formed this view because I consider that the father to date has limited the information he has conveyed to the mother about X, as he has wanted to divert any negative attention away from himself as it may have impacted his application from primary care.
While this in and of itself is concerning as it represents an inability by the father to prioritise X’s needs ahead of his own, I am satisfied that the resolution of these proceedings will remove that motivation for the father, such that he is able to act appropriately in parenting X such that she is not at risk of harm in the future. I have come to this view taking into account the very positive interactions between the father and X during interactions that Ms K observed, and in particular the child focused and appropriate manner that the father interacted with X.

The Additional considerations

Given her age, X is too young to express any views.
I am mindful that Ms K did not raise any concerns about the interactions that she observed between X and each of her parents. In particular, it is encouraging that Ms K observed that each of the parents appeared to interact and parent X in a similar style. This is heartening, as it appears to me that the parties, despite their many differences and their poor co-parenting dynamic, have much in common when it comes to parenting X.
I am also mindful that the evidence of Ms K was clear that X appears to be a child that is thriving despite the very poor co-parenting dynamic that exists between her parents. While not specifically put to Ms K, I can only hope that the similarity in parenting styles will continue to shield X from the worst effects of the poor co-parenting dynamic that exists between her parents as she gets older. I am also of the view that the conclusion of these proceedings and the removal of that stressor from the lives of the parents will assist them to each better focus on X’s needs and limiting the level of conflict between them.
I have also had regard to the fact that X appears from the evidence of each of the parties to have a close and loving relationship with her sisters who she lives with in the mother’s home and at this stage at least the paternal grandmother who supervised a significant proportion of the early time spending arrangements between X and the father.
During the trial I heard oral evidence from Ms K about the impact on X if there were to be a change in primary care.
Ms K acknowledged that any such change would be significant for X for a range of reasons including but not limited to her age, the disruption of her primary living arrangement with the mother which is all she has known and the separation from her sisters. Ms K however considered that such impact was tempered by the long term gain of changing primary care in the event that the court was satisfied that the mother was alienating X from the father and intentionally misleading the court about risk in the father’s care. As already identified, I have not made any finding with respect to the mother in this regard. I accordingly do not see any benefit to X in drastically changing her primary living arrangements. Rather, I am concerned in light of Ms K’s evidence that the same would be very detrimental to X.
Ms K was not otherwise challenged by the father’s counsel about her recommendations that there should be no change to X’s primary living arrangements if I did not consider that the mother had acted inappropriately.
I acknowledge that I am not bound by the parties’ proposals for final orders. To that end, Ms K was asked questions by the mother’s counsel during the trial as to her views about whether a shared care arrangement might be appropriate for X. Ms K gave considered evidence declining to support such an arrangement in light of the poor co-parenting dynamic and the practical impossibilities given the parties live a significant distance apart, particularly as X is about to embark on her learning and schooling journey. Ms K also considered that the distance between the parties’ homes would make mid-week time difficult to manage. In all of the circumstances, I accept and agree with Ms K’s views in this regard.
I am conscious that the father has suggested that he may move from Town H at some point in the future to live with one of his adult sons in or near Town O. However, as the father has no immediate or definite plans to do so, it would be foolish of me to speculate beyond the circumstances that I know exist with certainty at this juncture. Having said that, I do not see that a move to Town O or the Region P area would in any way ease the practical difficulties caused by the tyranny of distance that presently exists between the parties.

In light of all of the evidence that I have discussed in these reasons, I have formed the view that these parents appear to be incapable of having a sensible conversation about anything that might arise in the future in relation to X. While this supports my conclusion that the parties should not share parental responsibility, it is also a factor I have considered when turning my mind to making orders that would be less likely to lead to the further institution of proceedings.
In my view, if the parties were to share parental responsibility there is a very real risk that they would be embroiled in litigation for many years to come because they are incapable of communicating appropriately with each other. In addition, it has led me to form the view that the parties need orders which clearly define X’s time with each of them so as to avoid the potential for litigation in the future.
I am mindful that the mother has proposed arrangements that would see X’s current weekend time continue until she commences school and that her time then move to an alternate week regime. While I am not bound to adopt the mother’s proposal, in my view this proposal is appropriate as it will enable X to enjoy weekend down time with each of her parents. I also consider this arrangement is appropriate given the distance between the parent’s homes and the added burden to X that school brings.
I have considered the appropriateness of what, if any orders I should make for X to spend time with the father during school holiday periods as and when she commences school. I acknowledge that the mother has not proposed any orders at this stage for school holidays and that she has suggested that the parents engage in dispute resolution when X commences school to attempt to resolve that issue. This is not an option that I am prepared to entertain, as I am not optimistic that the co-parenting dynamic between these parents will improve to the point that they will be able to have amicable discussions about any increase to X’s time spending with the father.
The father on the other hand has not put forward a proposal for school holidays other than the equal sharing of the same if I was to take up his position that he have the primary care of X. I can only assume that a sharing of school holidays is the father’s preferred position regardless of where X primarily lives. This is not an option that I am prepared to entertain at this juncture, as I consider that X is too young to manage significant blocks of time away from the mother.
I do however consider it appropriate to make orders for X to spend time with the father for extended blocks of time during each of the school holiday periods once she has commenced school.
I have considered the various injunctions that the parties have asked the court to make on a final basis and I have had regard to those injunctions that have been in place throughout these proceedings. I consider it appropriate to continue those injunctions, albeit on a mutual basis.
I have considered handover arrangements, and while I did not specifically hear evidence from the parties about this, given I am not changing the primary living arrangements for X, I do not consider it necessary to alter the handover arrangements that have been in place throughout these proceedings.
For all of those reasons I now make those orders that appear at the commencement of these reasons.

I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of Judge Kari

Associate:

Date: 7 May 2020

[2020] FCCA 1089

7 May 2020

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Natural Justice

Procedural Fairness

Remedies