Welling& Bowcott

[2017] FCCA 3425

FEDERAL CIRCUIT COURT OF AUSTRALIA

WELLING& BOWCOTT [2017] FCCA 3425

Catchwords:
FAMILY LAW – Final Parenting Orders.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR WELLING

Respondent: MS BOWCOTT

File Number: NCC 1714 of 2013

Judgment of: Judge Myers

Hearing dates: 10 and 11 July 2017

Date of Last Submission: 11 July 2017

Delivered at: Sydney

Delivered on: 7 December 2017

REPRESENTATION

Counsel for the Applicant: Mr Michael Graham

Solicitors for the Applicant: Mr Fry

Counsel for the Respondent: Ms Haley Blackman

Solicitors Advocate for the Respondent: Ms Kim O’Rourke

ORDERS

1. All previous parenting orders are discharged.

Equal Shared Parental Responsibility

1. The parties have equal shared parental responsibility for the child, [X], born 2009 (“the child”).

Live With/Spend Time

1. The child live with the mother.

2. The child spend time with the father, during school terms, on an alternating basis, as follows:

   (a)In Week One: Thursday from 6:00pm until return to school on Tuesday;

   (b)In Week 2: Wednesday from 6:00pm until return to school on Thursday; and

   (c)Other times as may be agreed between the parties.

School Holiday Time

1. The time at order 4 shall be suspended during school term holidays and the child shall spend half of each school term holiday with each parent at times agreed between the parents, but failing agreement, as follows:

   (a)In years ending in an even number:

   (i)The first half with the father; and

   (ii)The second half with the mother;

(b)In years ending in an odd number:

(i)The first half with the mother; and

(ii)The second half with the father;

(c)That the school term holidays shall commence from 6:00pm on the night that school breaks up and conclude at 6:00pm on the night before school recommences; and

(d)If there are an odd number of nights representing the total of the school holiday nights, then the mother shall have the benefit of an additional night in even-numbered years and the father will have the benefit of an additional night in odd-numbered years.

1. The time at order 4 shall be suspended from the commencement of the Christmas school holidays and the child shall spend time with each of the parents during the Christmas school holidays as agreed between the parties, but failing agreement, for half of the school holiday period with each parent, as follows:

   (a)In years that end in an even number:

   (i)With the mother for the first half of the Christmas school holidays, to commence at 6:00pm on the night that school breaks up and to conclude at 6:00pm on the night that represents the midpoint, save and except for time with the father from 2:00pm Christmas Eve until 2:00pm Christmas Day; and

   (ii)With the father for the second half of the Christmas school holidays from 6:00pm on the night that represents the midpoint until 6:00pm on the day before school resumes;

(b)In years that end in an odd number:

(i)With the father for the first half of the Christmas school holidays, to commence at 6:00pm on the night that school breaks up and to conclude at 6:00pm on the night that represents the midpoint, save and except for time with the mother from 2:00pm Christmas Eve until 2:00pm Christmas Day; and

(ii)With the mother for the second half of the Christmas school holidays from 6:00pm on the night that represents the midpoint until the school term commences, and at such time, time pursuant to order 4 shall resume.

Special Occasions

1. The child spend time with each parent on his birthday as agreed between the parents, but failing agreement, as follows:

(a)If it is a school day, for 2 hours with the parent with whom he is not living with on that day from 6:00pm until 8:00pm and all other non-school hours with the parent with whom he is living; and

(b)If it is a non-school day, from 10:00am until 2:00pm with the parent with whom he is not living with on that day and all other times on that day with the parent with whom he is living.

1. Notwithstanding any other order, the child shall spend time with the mother on Mother’s Day from 9:00am until 7:00pm and time with the father on Father’s Day from 9:00am until 7:00pm.

Changeover

1. Unless provided for or otherwise agreed, all changeovers will occur as follows:

(a)Changeover from the mother to the father – at (omitted service station); and

(b)Changeover from the father to the mother – at (omitted) Supermarket.

Communication

1. The parents are at liberty to telephone the child during times he is spending with the other parent each Tuesday and Thursday between 6:00pm and 6:30pm.

2. Each parent will refrain from making critical or derogatory remarks about the other parent in the presence of hearing of the child and shall, immediately, remove the child from the presence of any third party making critical or derogatory remarks about the other parent.  The parents are specifically prohibited, by injunction, from discussing with the child any aspect of the parents’ experiences in Asia, any negative aspect of their relationship with the other parent or the failure of the other parent to provide adequate care for the child.

1. Each parent shall notify the other, as soon as practicable, in the event that the child becomes hospitalised or receives medical attention and in the case of an emergency, as soon as practicable after the first contact with a medical practitioner, medical centre or hospital.

1. Each parent shall ensure that the other parent is kept informed of:

(a)Any major injury or illnesses suffered by the child whilst in their care;

(b)Any medication that has been prescribed for the child;

(c)Any social, school, cultural or religious functions which the child is to attend;

(d)Any change to their residential address; and

(e)Any other matter relevant to the child’s welfare.

1. Each parent will advise the other, in writing, of any change to their contact number details, within 24 hours of such a change.

Other Orders

1. The parents are each at liberty to attend all events involving the child, including sporting, extracurricular activities, school functions, concerts, assemblies, interviews and social functions to which parents are invited.

2. The time that the child lives with the mother and spends time with the father shall be conditional upon that parent visiting their General Practitioner and obtaining a mental health plan, within 14 days of the making these orders.  The parents are to take any medication, follow any treatment and attend any counselling recommended by the said mental health plan and maintain the currency of that plan for so long as that parent’s General Practitioner considers there will be a health benefit to that parent in doing so.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

NCC 1714 of 2013

MR WELLING

Applicant

And

MS BOWCOTT

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is a final parenting decision in the matter of Welling & Bowcott.  The proceedings are in respect of the care and living arrangements of a child of the parties’ relationship, [X] born 2009.  When the proceedings were first commenced by the father filing an application for final orders on 17 February 2013, [X] was four years of age.  [X] is today eight years of age and turns nine in  2018.  These proceedings have been on foot for more than half of [X]’s life.

2. When the father first commenced proceedings, he sought an order for equal shared parental responsibility, that [X] live with him and spend six nights a fortnight with the mother.  The mother filed her initial response on 20 August 2013 in which she sought orders for sole parental responsibility, that [X] live with her and spend supervised time with the father each alternate weekend.

3. When the matter came before Judge Coakes on 27 August 2013, the parties entered into consent orders that, essentially provided [X] live with the mother and spend time with the father each alternate weekend from 9 am Saturday until 5 pm Sunday, and on Christmas 2013 from 2.30 pm Christmas Day until 5 pm Boxing Day. 

4. Under the heading Supervision Order, that the Court notes was made on a without admissions basis, the father’s time with [X] (in accordance with order 2) during overnight periods between 8 pm and 8 am would occur with a member of the paternal family present.

5. Under the heading Courses, (being orders 6 to 10) orders were made on a without prejudice or admissions basis, the father was to enrol and complete an anger management course and a family violence course;  the mother and father both attend upon a drug and alcohol counsellor, and   the parties were to attend upon a parenting after separation course.

6. Order 13 provided for a prohibition upon both parties using illicit or prohibited drugs 12 hours prior to and during any time [X] was in that parent’s care and the parents were to use their best endeavours to ensure [X] was not exposed to any third person using or being under the influence of illicit drugs.  Order 14 provided for a restraint around the use of alcohol, while other orders prohibited the mother exposing [X] to adult literature or computer games.  Orders were made prohibiting the parties interrogating [X] about the other parent, and preventing the parties passing on messages through [X] or denigrating the other parent to [X]. 

7. In addition to the above orders, Judge Coakes ordered the parties attend upon a family consultant for the purposes of the preparation of a section 11F memorandum.  The parties were subsequently interviewed on 27 August 2013 by a family consultant.  The family consultant noted:  [X] was four and a half years of age at the time.  Since separation he had lived with the mother and spent varying periods of time with the father.  Most recent at the time of the interview, [X] was spending time with the father from Friday until Monday morning. 

8. The family consultant noted the father wished to spend additional time with [X] and the mother sought supervised time.  On the basis that supervised time could not occur on an ongoing basis, there might be potential waiting periods.  The mother agreed to [X] spending time with the father from Saturday morning until Sunday.

9. Both parents appeared to the family consultant to be hopeful that [X]’s relationship with the father would prove positive and, accordingly, were happy to meet in November 2013 to discuss progressing an arrangement for some additional overnight time. 

10. Under the heading Family Violence, both parties acknowledged there was family violence in the relationship.  Each alleged that the other was the perpetrator of the violence, although the father conceded the mother had occasioned injuries on two occasions when he pushed her. There was a current ADVO protecting the mother.  The father had pleaded guilty to an intimidation charge against the mother.  Each party alleged that the other had a serious problem with prescription drug misuse and they both conceded to having historically been on antidepressant medication. 

11. The father conceded to the family consultant an overdose of methadone whilst the parties were in Country B and stated that both he and the mother had engaged in methadone use at that time.  He said the overdose was not deliberate.  Both parties conceded to have historically engaged in deliberate self-harm.  Both described this as having occurred on a limited number of occasions in response to situational stresses in the relationship.  Both parties allege the other engaged in alcohol misuse.  [X] had disclosed at the time the father had hit him.  The Court notes that, ultimately, that complaint proved to be untrue.

12. The Court ordered a further child inclusive memorandum and adjourned the proceedings until 15 November 2013.  On 6 November the parties were interviewed with [X] by a family consultant.  The family consultant’s child inclusive memorandum noted:

    [X] presented as a happy, talkative and social child who had age-appropriate development.  His positive presentation would appear to support there were not current concerns around neglect.  [X] was somewhat quiet on arrival but quickly warmed up to engage with the family consultant.  In plain, [X] clearly knew the purpose of his attendance at the Court. 

    Attempts were made to interview [X].  Whilst his verbal skills would clearly enable this to occur - he was willing to engage in general play - [X] clearly indicated he did not wish to discuss the issues canvassed by the family consultant in relation to his family.  Accordingly, [X] did not express a view in relation to the proposed parenting arrangements, nor were alleged safety issues able to be explored. 

    [X] was happy to see his father and greeted him warmly.  Both he and the father engaged happily in play with [X] interacting with the father and directing him to activities he should do.  At some stage [X] said to the father spontaneously, “I love you, Dad,” and gave his father a hug and kiss.  [X] raised the issue as to why he was at Court and that the father managed this appropriately. 

    The father spoke positively to [X] about the maternal family and the activities in the mother’s home.  At the conclusion of the session, [X] asked his father, “Why can’t you stay?”  The father responded appropriately and reassured him and said he would see him on the weekend, and [X] gave him a kiss and hug and the session ended without any stress for [X].

13. The mother reported to the family consultant that the overnight time with [X] and the father appeared to have been progressing reasonably well.  However, she said that [X] is quiet before he attends and wets the bed for days after the visit.

14. When the matter came before the Court on 15 November 2013, the Court ordered a family report and made the following orders:  that the previous orders in respect of time be discharged and in their place the father spend time with [X] each alternate weekend from 6 pm Friday until 7 pm on Sunday, each Wednesday from 6 pm until 8 pm, from 2.30 pm Christmas Day 2013 until 6 pm, 27 December 2013, for five days of his school holidays at the end of first term in 2014 and at such other times as agreed.  The matter was adjourned until 29 May 2014 for a directions hearing.

15. The mother caused to be filed an Application in a Case on 19 February 2014.  The mother sought orders in the Application in a Case that provided neither party shall allow [X] to share a bedroom with his cousin [C] born in 2008;  that each party shall ensure that any time spent between [X] and [C] be supervised by a suitable adult person.  The mother filed an affidavit in which she alleged [X], then aged eight and [C] then aged five, had been engaged in sexualised behaviours.  The mother reported the matter to what was then known as the Department of Community Services.  [C]’s mother was made aware of the allegations.  The matter came before the court on 31 March 2014.  On that date, Judge Coakes ordered that the Application in a Case filed by the mother on 19 February 2014 be refused.

16. On 30 April 2014 the family report prepared by the family consultant Ms D was released to the parties.  The matter was adjourned until 29 May 2014.  On 22 May 2014 the Court granted the parties an adjournment until 7 August 2014 following a joint request by the parties.

17. The matter came before the Court on 7 August 2014.  On that date, the parties entered into interim consent orders that provided all previous orders be discharged;  the parties have equal shared parental responsibility for [X];  [X] live with the  mother and spend time with the father during school terms in 2014 each alternate Friday from 6 pm until Sunday at 7 pm, commencing 15 August 2014;  each Wednesday from 6 pm until Thursday at 7.30 pm;  at such other times as agreed between the parties;  thereafter, from the commencement of the school term 2015, during school holiday terms each alternate Friday from 6 pm until Monday at 7.30 am, except if there is a public holiday on the Monday, and on such occasions the time shall end on Tuesday at 7.30 am;  and each Wednesday from 6 pm until Thursday at 7.30 am.  Such other times as agreed.

18. The orders further provided that during school holidays [X] spend half of each holiday period with each parent, essentially half of each Christmas Day alternating around dates and times for 2014, 2015 and 2016;  [X] spend time with both parents at specific times on his birthday;  with the mother on Mother’s Day and the father on Father’s Day.  Changeover points were also agreed.

19. Orders were made around communication and orders were made for drug screening.  The orders contained a notation in respect of the mother commencing counselling with a psychologist.  The orders made, in the view of the Court, were complete and comprehensive.  They demonstrated a compromise by both parties who sought to put in place a long-term sensible arrangement.

20. The matter was adjourned for callover on 20 November 2014 for allocation and a final hearing date.  On 20 November 2014, the matter was adjourned for final hearing, allocating three days on 19 October 2015.  On 14 September 2015, the father filed an amended application in which the father sought equal shared parental responsibility; that [X] live with him and that [X] spend time with the mother four nights per fortnight; that [X] spend half of the school holidays with each parent, as well as specific times and days over Christmas, the time with the mother on Mother’s Day and time with the father on Father’s Day.

21. Additional orders were sought around telephone calls to both parents and injunctions around illicit drug use.  Orders were also sought by the father in respect of [X] attending upon School A.  On that same day, the mother filed her amended response, seeking an order for equal shared parental responsibility and for the father to spend time with [X] for four nights per fortnight, half of the school holidays, and particular dates over the Christmas break.

22. Further ancillary orders were sought, including that [X] spend time with the mother on Mother’s Day and the father on Father’s Day.  The parties’ competing proposals were such that at that time, they were almost a mirror reverse arrangement for the father and for the mother.  On 25 September 2015, the mother caused to be filed her trial affidavit of some 91 pages in length, including annexures.  The affidavit contained many allegations about the father’s past bad behaviour, including very serious claims of family violence and threatened family violence.

23. On 21 September 2015, the father filed his trial affidavit.  On 15 October 2015, the father filed a case outline in which he sought sole parental responsibility and that the mother spend only each Saturday with [X] until the mother had completed therapeutic counselling concerning aligning behaviours and perpetrators of family violence.  The father thereafter proposed the mother spend four nights a fortnight with [X] after counselling.

24. On the first day of the trial, the mother sought an adjournment of the proceedings so that an independent children’s lawyer might be appointed.  That application was dismissed and the hearing commenced.  On 3 May 2016, the mother sought the relisting of the matter to determine an application that I recuse myself from hearing the matter on the basis of apprehended bias.  On 10 June 2016, the mother’s application for recusal was dismissed.

25. On 14 June 2016, the mother lodged an appeal against the Court’s decision of 10 June 2016.  The Court subsequently stayed the hearing of the proceedings, following which the Full Court of the Family Court of Australia expedited the appeal hearing.  On 18 June 2016, the Full Court of the Family Court heard the appeal and thereafter delivered a decision on 9 August 2016, in which the Full Court dismissed the appeal and determined that there be no order as to costs. 

1. By way of background, the father was born 1981 and the mother was born 1979.  The father suggested the parties met one another through the father’s sister in Tasmania.  The father suggests the parties commenced a relationship in 2005.  The mother suggests the parties in fact commenced a relationship in, on or about May 2006.  In about November of 2006, the mother travelled to Asia, and the father followed the mother the following month.

2. The parties engaged, in the view of the Court, in extremely risky behaviours whilst in Asia.  The mother had used drugs whilst in Asia that the Court understood to be some form of amphetamines, a type of speed, and the father both prescription and illicit drugs.  The parties both self-harmed, and the Court accepts the father nearly died following drinking a small bottle of methadone, where he went into cardiac arrest.  The mother gave evidence of the father’s prescription drug abuse continuing after returning to Australia and then when the parties again returned to visit Asia.

3. The mother alleged the father was first violent towards her in June of 2007, where the father slapped her across the face.  It would appear the parties left living in Tasmania moving to Town A upon returning from Asia.  The parties then moved to Town B.  Whilst the parties were living at Town B, the mother fell pregnant with [X].  After [X]’s birth, the parties moved to live in Town C. 

4. The mother alleged the parties attended upon a trip with [X] to Country A in June 2010, where the mother gave evidence of the father picking her up, holding her over an open window some storeys off the ground, and then threatened to throw the mother to her death.  The mother alleged she begged the father to put her down, following which he did.  The mother suggests the father then took her head in his hands and began banging it on a wooden armrest.  Whilst this was happening, the mother alleged [X] was observing the assault, crying.

5. The mother further suggests the father then threw her onto a bed, got on top of her and began to strangle her.  The mother gave evidence the father then stopped and he left the room.  The mother suggests the father hit her across her cheek with the back of his hand in November 2010.  The mother alleged the father continued to perpetrate violence upon her.  The parties separated in 2011.  The mother suggested the parties separated on a final basis on 14 March 2011; the father suggests in October 2011.  It is not material to the proceedings to determine whether father or the mother were correct or whether separation was on some date in between.

6. What is not controversial is that following separation, the mother left [X] with the father so that she could travel to Country B.  Following the mother’s return, the father moved to live with his sister at Town D, where, at the time of swearing the father’s affidavit, he continued to live.  The mother now lives at Town E.  The father subsequently moved to another location (omitted area).

7. On 8 February 2012, the mother made complaint to the police after which the police took out an AVO against the father for the mother’s protection.  A final order was made on 5 April 2012 against the father for a period of two years.  A copy of that order forms annexure E to the mother’s affidavit.  During the family report interviews, the father alleged that there was family violence during the relationship and following the separation.  The father alleged the mother was the perpetrator of that violence and claimed to the family consultant he would physically restrain the mother or push her away to defend himself.

8. The father alleged the mother had scratched him, slapped him, pinched him, punched him, once caused his nose to bleed, thrown things at him, including knives, smashed a glass on his back, hit him with a broomstick, attempted to hit him with a baseball bat and threatened to stab him and threatened to kill him.  The family consultant noted the father agreed the mother once hit her head on a shelf, but the father claimed it took place when he pushed her away hard as she had punched him in the nose, causing it to bleed, and that she was continuing to attack him.

9. During the mother’s interview with the family consultant, the mother denied ever perpetrating a family violence against the father, other than striking out at him when the father was attempting to strangle her.  The family consultant noted in the report:

   It remains unclear whether the mother only perpetrated family violence or the father only perpetrated family violence, or whether both parties perpetrated mutual partner violence. 

10. The Court is able to find that the father threatened to kill the mother in February 2012, following which the father pleaded guilty to an intimidation charge and further, the Local Court made an order for a final ADVO for a period of two years. 

11. Beyond that, the evidence is so conflicting the Court finds itself in a similar position to that of the family consultant.  It cannot make any further findings in respect of either party perpetrating family violence.  The father raised concerns within his affidavit in respect of the mother’s behaviour, including allowing [X] to be called by the surname Bowcott instead of Welling at martial arts.  The mother talked to [X] about negative aspects of the father’s care for [X] when [X] was only an infant, the mother telling [X] that his parents were not friends and that the father nearly died whilst in Country B. 

12. The father raised further concerns with respect to the mother seeking to prevent [X] spending time with him.  Both parties gave evidence of the positive nature of the relationship they had with [X].  The Court has read and considered the family report prepared by family consultant Ms D.  The date of the report was 27 April 2014.  During the course of the interviews, the family consultant noted that [X] was five years and two months of age.  He presented as an active, cheerful and confident child and appeared to present developmentally within normal parameters.

13. [X] reported his name was Welling except at martial arts, his name was Bowcott.  [X] attended School B and is in kindergarten.  [X] reported that he enjoys school and that he is a good boy and does not get into trouble at school.  [X] reported his parents do not live together anymore and they were not friends.  [X] stated he would like his parents to be friends with each other and asked him whether he had ever seen his parents hurting each other, [X] said he had not.  However, [X] was only two years of age at separation and it would be unlikely there would be retrievable memories from that point, the family consultant noted.

14. [X] reported his parents separated because once when he was a baby, his dad said to his mum he did not like her anymore.  When asked who told him this, [X] said no one.  He just heard it.  Again, it is unlikely that [X] would remember something that was said when he was under two years of age.  [X] reported that in his view, both parents love him the same and he denies either parent telling him otherwise.

15. [X] reported to the family consultant he lives with his mum and his dad and that it is fun living in both households.  [X] reported to the family consultant, there is nothing he does not like in either household and reported positively about other members and/or frequent visitors within both households.  [X] denied any other person denigrates the other or members of their extended family.

16. [X] reported to missing the father sometimes when he is in his mother’s care, but not enough to cry.  [X] reported not usually missing the mother when he was in the father’s care, but thinks he misses her a bit this time as he is spending his first overnight time with the father.  When [X] saw the mother at the interview, he asked how many sleeps until he returned to her care, but he did not appear unhappy or distressed when told four more nights.

17. [X] reported he enjoyed sharing a bedroom and playing with his like aged cousin, [C].  [X] was asked if [C] ever suggested that [X] and he do anything rude together.  [X] said he had not.  When [X] was told that his mother was worried that [X] had told her this has occurred, [X] looked a little guilty and smiled and when asked whether he told the mother the truth or a fib, [X] smiled and said it was a fib.  “I’m a good joker”, [X] said.

18. [X] was asked if he had ever engaged in sexualised behaviours with anybody and he said he had not.  When asked how he knew of such sexualised behaviours, [X] said his friend, [D], had told him about people engaging in oral sex.  Both parties and the maternal aunt were advised that [X] reported he had not engaged in such sexualised behaviours and that it was [D], not [C], that told [X] of such behaviours.

19. The father appropriately advised the family consultant he would alert the school in regard to [D] having inappropriate sexual knowledge.  [X] was asked by the family consultant whether he had even been hit, kicked or punched by any adult.  He said he had not.  Asked whether he told the mother or anybody else, [X] looked uneasy and said he had not.  Subpoenaed records indicated [X] had told a case worker, the father had hurt him.  There was no sign of [X] being anxious or fearful of the father on the day of the interviews.

20. [X] reported he knew what alcohol was and identified beer as alcohol.  When asked if he knew anybody who drank alcohol, [X] said all the grownups in his family drink beer sometime, then [X] reported he had not seen anybody being wobbly or silly after drinking too many beers.  [X] was asked if he would like more sleepovers with the father, not as many sleepovers with the father or just the same number of sleepovers he has.  [X] said it would be good to have some more sleepovers with the father.  When asked how he would feel if he lived in the father’s house most of the time, rather than at the mother’s house, [X] looked unsure and said, “I don't know.”

21. [X] was observed to enjoy a close relationship with the father, the maternal aunt, the mother and the maternal grandmother on the day of the interviews and observations the family consultant made were that [X] transferred easily between his parents.  The family consultant opined that it was evident that [X] has love and affection for both parents and did not identify concerns in either parent’s household.  There was clearly no reason if he continued with the mother.  The family consultant further opined there appears no reason if he continues to live with the mother that he should have such a limited relationship with the father.

22. The family consultant opined that if either party or member of their extended family were exposing [X] to denigration, then this must stop immediately.  The family consultant reminded the parties in the family report, that the person who suffers most from hearing such denigration is [X].  The family consultant went on to say it was clear that [X] has love and affection for both parties and [X] identified no risk in either parties’ care. 

23. The family consultant suggests that there was certainly signs of historically aligned behaviour on the part of the mother, such as placing restrictions around the father and his family having contact with [X] at preschool and decreasing the father’s time with [X] and now offering limited time for [X] with his father.  The family consultant suggested the mother’s likely objection to [X] being known as Bowcott rather than Welling could be considered aligned behaviour.  The family consultant pointed out that the mother must in future realise that [X]’s relationship with the father is one of the most important relationships as a male he will have and unless [X] is at real risk in the father’s care, the mother must ensure she supports and encourages and facilitates [X]’s relationship with the father.

24. The family consultant suggests that the impacts of the father’s proposal on [X] will be that he lives with the father with which he has had no prior experience and would no longer live with his primary psychological attachment figure.  The family consultant opined that this would benefit [X] only if he is at risk of psychological harm in the mother’s care.  The family consultant suggested that the impact of the mother’s proposal on [X] will be that he continues to live with the mother, his primary psychological attachment figure, as he has done since separation.  The family consultant set out that if the father’s allegations have merit, [X] will be at risk of psychological abuse and may feel pressured over time to reject the father and family in order to relieve the psychological stress placed on him. 

25. The family consultant went on to set out:

    An analysis of [X]’s needs were that he needs to live in an environment free of alcohol abuse, illicit drug use, abuse over the counter prescription medications and family violence.  He needs not to be exposed to any denigration of people that he lives.  [X] needs to be free to love and have affection for all significant others in his life.  If he is not at risk of harm, [X] needs to spend substantial and significant time with the party he does not live within the main.  [X] has expressed views, the family consultant suggests, are that he would like to spend more time with his father as he loves him and misses him when he is not in the father’s care.

    [X] is not able to imagine living with the father as he has not done so since separation, some two and a half years ago, so he cannot imagine what this would be like.  [X]’s wish to spend more time with his father appears to be genuine.  [X]’s genuine view is not a view influenced by any other person as such.  [X]’s view should be given significant weight unless the Court finds he is at risk in the father’s care.

26. The family consultant was of the clear view that equal shared parental responsibility should occur.  The family consultant’s view of [X] spending substantial and significant time and communicating with the party he does not live within the main is that this should occur only if [X] is not at risk of harm.  The family consultant set out a number of recommendations, including that if the Court finds [X] at risk of psychological harm in the mother’s care, that if the mother does not support and encourage [X]’s relationship with the father and his family and that if the mother is engaging aligned behaviours recommended [X] live with the father.

27. The family consultant further recommended that the mother immediately enter into therapeutic counselling with a therapist registered with Medicare to address the concerns raised in the family report.  It was recommended that a copy of the family report be made available to the mother’s treating therapist.  The family consultant further recommended that if the Court finds [X] is at risk of psychological harm in the mother’s care as the mother has perpetrated family violence that [X] spend day time only each week with the mother until she completed individual therapy program for perpetrators of family violence.

28. The family consultant went on to suggest that upon the mother having given the father evidence that she has completed such therapy, it is recommended that [X] commence spending each alternate weekend from Friday to Monday, each Wednesday from school to school Thursday and half of the school holidays.  The family consultant further recommended that if the Court finds [X] is not at risk in the mother’s care, that [X] live with the father and spends five nights a fortnight with the father, being each alternate weekend from school Friday to school Monday, each Wednesday from school to school Thursday, and half the school holidays and on special occasions.

29. The family consultant also recommended that the mother enter into therapy to address her long history of self-harming behaviours, and that both parties provide to the Court evidence of their completion of drug and alcohol relapse prevention programs.  The family consultant recommended that if the Court finds [X] is at risk in the father’s care in regards to denigration of the mother and her family the father should enter into therapy.  The Court notes at the time the recommendations were made, it was near on some four years ago.  It will be four years ago in April 2018.  [X] has increased significantly in age since that time. 

30. The cross-examination of the family consultant left the Court with the view that [X]’s relationship with both parents remains extremely strong.  [X] is happy and has not aligned against either party.  The Court considers those mattes set out at section 60CC.  The Court considers there is a benefit that [X] has a meaningful relationship with both of his parents.  The Court notes the parties’ history of prescription drug misuse and mental illness around depression and anxiety and history of self-harming. 

31. The Court will make an order the orders that provide for [X] to live with and spend time with the parents are conditional upon the parties visiting upon their GP within 14 days to obtain a mental health plan and thereafter, maintain the currency of that plan for as long as the GP determines the parties will benefit from the same.  The Court notes the parties’ dangerous and foolish behaviour whilst in Asia.  Those behaviours placed both parties at risk and near-on killed the father.  As far as [X] is concerned, what the parents did in Country B should stay in Country B. 

32. The Court will make an order that prohibits the parties discussing with [X] any negative aspects of their relationship with him, the failure of the other parent to provide appropriate care for [X] or any allegations of family violence perpetrated by the other on that parent with [X].  The Court does not accept any suggestion [X] will become aligned with the mother against the father, noting [X] has not done so since the commencement of these proceedings.  The Court will also make an order preventing the parties discussing with [X] what took place with them and their drug use and otherwise their behaviours in Asia. 

33. The Court otherwise considers there is no further need to make any orders that would protect [X] from being subjected to or exposed to abuse, neglect or family violence whilst [X] lives with or spends time with that parent.  The Court has considered the views expressed by [X].  He loves both his parents.  He wants to spend more time with the father.  [X] has a sufficient level of maturity and understanding to be able to express such a view.  And in those circumstances, the Court gives those views significant weight.  The Court notes and accepts [X] has a good relationship with both of his parents.  He is not scared of either parent.  The relationship with both parents is a loving one.

34. The Court accepts [X] has a good relationship with his one year old sibling, [Y], and a good relationship with the mother’s partner and both of the parties’ extended family and the paternal grandparents. The Court accepts that both parents have taken the opportunity to participate in making major long-term decisions in relation to [X] to spend time with [X] and to communicate with [X].  The Court accepts that both parties have fulfilled well their obligations to maintain [X]. 

35. The Court considers the likely effect of any change in [X]’s circumstances including the likely effect of separation from either of [X]’s parents or any other child, a person with whom [X] has been living.  If the Court made the orders sought by the father, this would see a significant change in [X]’s circumstances.  He would no longer live with the mother and his younger sibling.  The family consultant noted the mother has been [X]’s primary attachment figure at paragraph 122 of the family report.  [X] would on a practical basis move from his current school and friendship group.  The Court determines a change of the type which the father suggests would likely be detrimental to [X].

36. However, an increase in the amount of time [X] spends with the father by one or two nights per fortnight would not be so significant as to cause any detriment to [X] in respect of his separation from his mother or the separation from his younger sibling.  The Court does not consider that there is any practical difficulty or expense in [X] spending time with or communicating with the father.  The Court considers the capacity of the parents to provide for the needs of [X], including his intellectual and emotional needs.

1. While the Court notes the parties’ history with respect to mental health, self-harm and illicit and prescription drug use, the Court is satisfied as to the evidence of both parties, having increased and built upon their capacity that beyond that which existed at the very commencement of these proceedings.  The Court accepts the parties have sought out and by virtue of the orders, the Court proposes, will continue to seek out appropriate medical assistance that will maintain their capacity to provide for [X]’s needs, including his intellectual and emotional needs.

2. The Court is satisfied that the parties have modified their behaviours around [X], particularly with respect to the father ceasing to record conversations with [X] so as to provide for [X]’s emotional needs in circumstances where the father agreed that he would do so during the course of cross-examination.  There is nothing in the parties’ evidence that would cause the Court to give consideration to section 60CC(3)(g) any weight.  The Court is not aware that [X] is an Aboriginal Torres Strait Islander child. 

3. The Court considers the parties’ attitudes towards [X] and the responsibilities of parenthood demonstrated by each parent.  Whilst some of the past behaviours of the parents have exposed [X] to the conflict and left a considerable amount to be desired, the Court is satisfied that as of now, at this moment, the parties are and will continue to be child-focused, acting as responsible parents.  The Court finds the father perpetrated violence in the form of a threat to kill the mother in February 2012, now some six years ago.  The Court notes there is no suggestion the father breached the AVO taken out for the protection of the mother.  The AVO has now expired.

4. As previously set out, the state of the other evidence around family violence is such that the Court is left in a position unable to make a finding against the father or any finding against the mother.  The Court notes the family violence order annexed to the mother’s affidavit.  Beyond understanding the nature of the order, there was no evidence available to the Court in respect of the circumstances in which the order was made, any evidence submitted in the proceedings for the order, any findings that were made by the local Court at the time the order was made.

5. The Court determines it would be preferable to make a final order that includes some requirements around the parties engaging with their GP to obtain a mental health plan, and that such orders would be least likely to lead to the institution of further proceedings than if those orders were not made.  The Court considers the presumption in favour of equal shared parental responsibility found at section 61DA, and that the presumption should not be rebutted by reasons of family violence perpetrated by the father in February 2012 in the form of threats.

6. The evidence suggests that neither [X] nor any other child who was a member of [X]’s household was abused, and the presumption is therefore not rebutted by reasons of abuse.  The Court determines that it is in the best interests of [X] the parties have equal shared parental responsibility.  The Court considers section 65DAA.  The Court has determined to make an order for equal shared parental responsibility.  Section 65DAA provides the Court firstly consider whether it would be in the best interests for [X] to spend equal time with his parents, and whether it would be reasonably practicable to do so, having regard to those matters set out at section 65DAA, subparagraph (5). 

7. Having regards to section 60CC, the Court determines it would not be in [X]’s best interest that he spend equal time with both parents as to do so would bring about a significant change and be detrimental upon [X], particularly when considering the effect of his separation from the mother.  The Court further considers section 65DAA, subparagraph (5), setting out those matters the Court must have regard to when determining whether equal time is reasonable practicable. 

8. The Court determines the parties do not live too far apart to make equal time reasonably practicable.  The parties have the current and future capacity to implement such an arrangement.  The parties’ current and future capacity to communicate has improved, having heard evidence most recently from the mother on the topic, but not to such an extent that the current and future capacity to communicate sufficient to overcome issues that might arise in implementing an arrangement for equal time would be reasonably practicable.

9. The Court otherwise considers that given [X]’s attachment to his mother, the separation from her of an arrangement of equal time would cause him detriment.  The Court considers whether substantial and significant time would be in [X]’s best interest and reasonably practicable.  The Court turns to the definition of substantial and significant times found at subparagraph (3) of section 65DAA that provides:

   For the purposes of subsection (2), the child will be taken to spend substantial and significant time with a parent only if (a) the time the child spends with the parent includes both days that fall on weekends and holidays, days that do not fall on weekends and holidays, and the time the child spends with the parent allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child, and the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

10. Having regard to the definition, the Court suggests an arrangement that increases the time [X] spends with the father by two nights a fortnight, where [X] would live with the mother for eight nights per fortnight and spend time with the father for six nights per fortnight, would see [X] spending substantial and significant time.  The Court considers those matters set out at section 60CC and finds that an arrangement of substantial and significant time where [X] lives with the mother for eight nights per fortnight and spends time with the father for six nights per fortnight would be in [X]’s best interests, such that an arrangement would not have a detrimental effect with regard to [X]’s separation from his mother or from his sibling.

11. The arrangement would see [X] living two extra nights a fortnight with the mother than the time he would spend with his father.  The Court considers the provisions of section 65DAA, subparagraph (5).  The parties live close enough to one another (omitted region) to make substantial and significant time reasonably practicable in the view of the Court.  The parties have the current and future capacity to implement an arrangement with [X] to spend substantial and significant time with the father.

12. The parties have the current and future capacity to communicate with one another and resolve difficulties that might arise where [X] lives with the mother for eight nights in a fortnight and spends time with the father for six.  Such an arrangement would not be detrimental to [X]’s best interests.

13. The Court having considered the proposals of each parent, having considered the matters that are agreed and not agreed, having applied the provision found at Part VII of the Family Law Act makes the following parenting orders.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Myers

Date: 10 September 2018