WEST & DAVIES - [2020] FamCA 818

FAMILY COURT OF AUSTRALIA

WEST & DAVIES

[2020] FamCA 818

FAMILY LAW – CHILDREN – Interim parenting – Where each parent poses serious risks of harm to the child and have demonstrated shortcomings in their capacity to provide for the child’s needs – Where the Department responsible for child welfare has twice declined to intervene in the proceedings – Where each party proposes competing orders relating to the child’s time with the father on the basis that it is in the child’s best interests to have a meaningful relationship with the father –Where the ICL changed her position in the course of the proceedings contending that it may be the case that a court will ultimately find that there is no benefit to the child in having a meaningful relationship with the father – Where Family Consultant’s opinion that neither parent may be considered a suitable carer for the child in light of the multitude of risks posed by each of them to the child considered weighty – Where, in the absence of an alternative proposal, the only proper order that may be made is an order that the child live with the mother and that she have interim sole parental responsibility for the child – Where, in light of the child’s undeveloped relationship with the father, the significant vulnerabilities in the father’s capacity to provide for the child’s needs and the risks posed by him, as well as the practical difficulty and expense of the child spending time with the father, it is not in the child’s best interest for orders to be made to foster child’s relationship with father at this interim stage.

Family Law Act 1975 (Cth)ss 60CA, 60CC, 65D

Deiter & Deiter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286; (2007) 26 Fam LR 422; [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
Davies & West [2020] FamCA 802

APPLICANT:

Ms West

RESPONDENT:

Mr Davies

INDEPENDENT CHILDREN’S LAWYER:

Ark Lawyers

FILE NUMBER:

PAC

1557

2019

DATE DELIVERED:

28 September 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

10 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

Metta Legal

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Ln Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ark Law Lawyers

Orders

Orders 1-3 made in the Federal Circuit Court on 28 May 2019 are discharged.
Pending further order, the mother has sole parental responsibility for the child X born … 2018 (“the child”).
Pending further order, the child live is to with the mother and spend no time with the father.

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

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

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1557 of 2019

Ms West

Applicant

And

Mr Davies

Respondent

REASONS FOR JUDGMENT

Introduction

The parties (“the mother” and “the father”) are the parents of a little boy aged two (“the child”).
The short-lived relationship between the mother and the father ended in late 2017 a couple of months prior to the child’s birth.
The father commenced proceedings in April 2019 when the child was 14 months old seeking orders that would see the child spend time with him on an increasing basis so that an equal shared care arrangement would be in place when the child turned seven.
In May 2019 orders were made in the Federal Circuit Court with the consent of the parties that the child live with the mother and spend supervised time with the father for two hours every Thursday and each alternate Saturday.
After a few months the mother unilaterally ceased facilitating the child’s time with the father though that time was subsequently reinstated, albeit on a more ad-hoc basis than provided for by the interim orders. By March 2020 this time had ceased due to the COVID-19 pandemic restrictions and the father’s lack of consistency in attending.
In March 2020 the proceedings were transferred to this Court after concerns had been identified by a family consultant in the course of a Child Dispute Conference about family violence, child safety, the child’s welfare and the mother’s parenting capacity arising from the party’s presentation at that conference and information given by each of them.
By an Application in a Case filed on 17 April 2020 the mother seeks a discharge of the previous interim orders in relation to the child’s time with the father and seeks an interim order for sole parental responsibility for the child and orders that would see the child live with her and spend limited supervised time with the father at a contact centre.
The father seeks no order in relation to interim parental responsibility and proposes interim orders that would see the child live with the mother and spend time with him for four hours each Thursday and Saturday and on special occasions (and that this time be unsupervised) as well as other ancillary orders.
The Independent Children’s Lawyer (“ICL”) had taken the position as revealed in her Outline of Case that the child’s time with the father be supervised at a contact centre. However, it became clear in the course of the hearing that she considered that it was not in the child’s best interest to spend time with the father pending final hearing and for this reason opposed the orders proposed by both parents.
In the course of the interim hearing on 10 July 2020 despite the Department of Communities and Justice (“the Department”) declining an earlier invitation to intervene in the proceedings I remained of the view that there is a real possibility that the Court may find that both parents pose an unacceptable risk of harm to the child. For this reason at that court event I made a further invitation to the Department to intervene in the proceedings and subsequently published short Reasons [1] (“the previous judgment”) for making such an order.
[1] [2020] FamCA 802
The question for me to determine is whether it is proper for any order to be made providing for the child to spend time with the father pending final hearing and if so, whether such time should be supervised and as otherwise proposed by the mother or as proposed by the father.

Background

The following background extracted from the previous judgment provides context for this application.
Each of the parents were raised in households characterised by significant dysfunction.
It appears that the father was removed as a child from his family and spent some time in foster care.
In mid 2010 when the father was 15 years old he was charged with aggravated indecent assault against his sister who was then nine. He was later found guilty of this offence and ordered to enter into a good behaviour bond for six months.
The mother who is now aged 27 also appears to have had challenges and disruptions in her own upbringing. She has an intellectual disability and her first child (“the mother’s oldest child”) born in 2016 was removed from her care as an infant. According to Departmental records this occurred because of “household safety concerns; the maternal great uncle’s criminal history; alcohol abuse, unhygienic state of home and emotional state/mental health”.
The mother was in a brief relationship with the father who also has an intellectual disability from a short time after her oldest child was removed (February 2017) which had ended by the end of the same year. The only child of the relationship was born in early 2018 after the parties’ separation. It is recorded in records produced by the Department that prior to the child’s birth there was a “High Risk Birth Alert” for the child as it had been alleged by the mother that the father stated that he was going to “take the child upon birth”.
The child has lived with the mother since birth in the home of the maternal grandmother, though there was apparently an occasion when he also was removed by the Department. It appears, though it is not clear, that the child spent some time with the father after separation on an ad hoc basis.
Shortly after separation the mother attended a local police station with her support worker to make a report about the father’s behaviour following separation. The mother appeared to police to be visibly shaken when recalling various incidents but was unable to provide specific times and dates. The police later received an email from the mother outlining an incident that she says occurred earlier that month in which the father had approached her at her parenting class, attempted to kiss her and tried to prevent her from leaving.
On 22 November 2017 police obtained a provisional Apprehended Domestic Violence Order (“ADVO”) for the mother’s protection from the father restraining him from approaching or contacting her and going within 100 metres of any place where she lives or works. When the application came before a Local Court it appears that an interim order was made in similar terms.
In May 2018 the mother reported to police that she had been on the same bus as the father where he attempted to engage in conversation with her despite the conditions of the ADVO in place at the time preventing him from any contact. The father is reported to have said to her “How’s my son? He’s got my blood in him. Not just yours” and to have yelled to her as she was leaving the bus “You’ve got what you wanted”. The police later attended the father’s home. He agreed that he had spoken to the mother and was charged in relation to this contact. The father subsequently pleaded guilty to contravening the ADVO.
In August 2018 the application for an ADVO for the mother’s protection from the father was withdrawn and dismissed.
At some unknown time the mother re-partnered and in early 2019 gave birth to a son to her current partner.
A further provisional ADVO was made against the father for the mother’s protection in March 2019 which was withdrawn and dismissed by a Local Court the following month.
In April 2019 the father commenced proceedings in the Federal Circuit Court seeking final orders for the child to spend time with him. It was the father’s proposal that his time with the child increase so that an equal shared care arrangement would be in place once the child turned seven. In the interim he proposed that his time with the child be limited and supervised.
On 28 May 2019 orders were made with the consent of the parties that the child live with the mother and spend supervised time with the father for two hours every Thursday and each alternate Saturday. A short time later the father started spending time with the child in accordance with these orders supervised by an independent supervisor. The mother’s National Disability Insurance funding was utilised to pay for this supervision.
In June 2019 neither party attended upon the family consultant for a Child Dispute Conference as had been ordered. The family consultant read the documents filed by each party in the proceedings including each party’s Notice of Risk and their affidavits and recommended that Family and Community Services as the Department were then known be invited to intervene in the proceedings.
The mother asserts that in June 2019 while she was spending time with one of her friends she received a message from the father telling her that she could not hang out with her friends which caused her to feel threatened and intimidated.
The mother asserts that in July 2019 she started to facilitate video calls between the father and child each night. She deposes that this arrangement was short lived as she stopped facilitating these calls after two occasions on which the father turned his phone during video call towards his brother who was viewing pornography at the time.
The Department who had been working with the mother since August 2017 ceased that involvement in August 2019. At the time the case was closed the mother was reported as engaging with a range of support services including the Intellectual Disability Rights Service, Disability Service and Support and Women’s Domestic Violence Advocacy Service.
Since ceasing its involvement with the mother the Department has received twelve child protection reports in relation to the child with four notifications being classified as “risk of significant harm” reports. All notifications were closed without further investigation.
In August 2019 the mother reported to the police that the father had rubbed her on the leg while she was at the Family Court. The mother reported that she was with a support person at the time who told the father to stop which he did. It is recorded that the police spoke to the father about his behaviour being inappropriate and unwanted but it appeared clear to the police that the father was “struggling to comprehend” their concern “due to his intellect”.
The father continued to spend time with the child as previously ordered until September 2019 when the mother unilaterally ceased the contact due to concerns for the child’s safety. The mother contends that her partner had been informed by a mutual friend of the parties that the father was planning to kidnap the child.
The mother asserts that after ceasing contact between the father and child the father attended her home. The mother called the police as she was concerned for the child’s safety.
The mother asserts that in mid-October 2019 she ran into the father and his siblings at the local shops. She contends that the father’s sister asked if she was pregnant and the father’s brother showed her “sexualised photos” on his mobile phone. The next day the mother saw the father at the shops again and had a conversation with him during which she asserts the father said he wanted a DNA test to prove that he is the biological father of the child. The mother asserts that following these interactions she wanted to “keep myself and my family safe” so she applied for a further Apprehended Violence Order in October 2019 against the father which was dismissed by a Local Court in December 2019.
In December 2019 the mother met with her “support coordinator” (the person responsible for the implementation of supports funded by the NDIS) who made arrangements for funding under the mother’s NDIS plan to cover supervision by a private supervision service so that the child’s time with the father could recommence.
On a number of occasions in the first few months of 2020 the father cancelled or failed to attend contact events without notifying the mother which is documented in the supervision service records tendered in the proceedings. The mother’s solicitor wrote to the father’s solicitor advising him of the funds being wasted from the mother’s NDIS funding for the scheduled visits that the father was failing to attend.
The parties attended a Child Dispute Conference in February 2020. The family consultant held serious concerns about family violence, child safety, the child’s welfare and the mother’s parenting capacity arising from the parties’ presentation and information given. Each of the family consultant’s concerns will be outlined later in these Reasons together with information from the documents produced on subpoena in the proceedings which is added where relevant.
On 3 March 2020 the proceedings were transferred to this Court after concerns were identified in the Memorandum prepared by the family consultant that neither parent may be suitable to care for the child. In accordance with the recommendation made by the family consultant the Department were invited to intervene in the proceedings. At around this time the father’s time which recommenced ceased once again due to restrictions associated with the COVID-19 pandemic and the father’s irregular attendance at the contact events.
The father asserts that he received a call from his sister’s former partner in April 2020 telling him that the child was being mistreated by the mother’s partner in the presence of the mother including that he had been “throwing [the child] around the room”.
The mother asserts that in April 2020 she was told by a former friend of the paternal family that the father and paternal family were “threatening to bash [her] and kill [her] unborn son”. The mother reported this to police who applied for a further Provisional ADVO for the mother’s protection from the father. Later the same month an interim ADVO was made by a Local Court for the mother’s protection which appears to currently remain in place.
By 14 May 2020 the Court had not received any correspondence from the Department in relation to the earlier invitation to intervene in the proceedings. At a court event at that time the Independent Children’s Lawyer (“ICL”) informed the court that the Department had not apparently been notified of the request from the Federal Circuit Court to intervene. A registrar of this Court made a further request that the Department intervene in the proceedings.
On 25 May 2020 the father filed an affidavit in which he alleged that the mother had sent him a message via a social media platform threatening that she would kill the child before allowing the father to see him. He annexed a copy of the message to his affidavit. The mother denies that she sent the message.
On 18 June 2020 a Registrar of this Court again invited the Department to intervene as there had been no response following the prior request.
At the interim hearing on 10 July 2020 highly concerning material produced by the Department, NSW Police and the contact supervision service on subpoena was tendered. As the court had not received a written response from the Department in relation to the previous invitations to intervene, a further invitation was made. It was also apparent at this court event that the mother is currently expecting another child to her current partner and that the expected delivery was in August 2020.
The mother’s current partner lives with his mother and the mother reported to the family consultant that he “only comes to spend time with his son and help out”. The mother reported that she and the children spend time at the partner’s residence on weekends.
A few days after the interim hearing, on 14 July 2020 an officer of the Department advised the court that the Department had decided not to intervene in the proceedings at this point in time.

The law & discussion

The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[2].
[2] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346.
Goode sets out a framework for the conduct of interim proceedings which involves identifying competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts. The Court is also required to assess matters relating to any risk of harm arising from the competing proposals.
In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting.
Pursuant to s 65D(1), subject to certain sections a court may make such parenting order as it thinks proper.
In Deiter & Deiter[3] the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration.
[3] [2011] FamCAFC 82.
Although these proceedings have been on foot since April 2019 very little progress was made in the Federal Circuit Court prior to transfer to this Court. At the interim hearing an order was also made for the preparation of a Family Report. Given the multitude of risk factors in relation to the child (and as at that stage the Department had not intervened in the proceedings, a matter which remains unchanged) it was confirmed by the Senior Family Consultant at Child Dispute Services that the preparation of the Family Report would be prioritised and it is likely to be available by October 2020.

It is possible that a further application for interim orders pending final hearing may be made following the release of the Family Report and as noted the Department has again confirmed that the Secretary of the Department will not be intervening in the proceedings. It is possible in these circumstances that these interim orders may be in place for a short period of time. Alternatively, once the Family Report has been obtained trial directions may be made shortly thereafter and a final hearing expedited, especially given the risk factors in relation to the family. If this were to occur then it is likely that the interim parenting arrangement under consideration may be in place for a number of months.
Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. The best interests of the child are determined by considering the matters set out in s 60CC.

The primary considerations: s 60CC(2)

The primary considerations, which are contained in s 60CC(2), 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.
Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.
Although the meaning of “meaningful relationship” is not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[4]
[4] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].
The authorities have made it clear that this consideration does not create a presumption that it is in the best interests of a child to have a meaningful relationship with both parents.
The Full Court said in McCall & Clark (supra) at [117]:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).
The Court continued at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
Each of the parties have approached the question of the father’s time with the child on the basis that it is in the child’s best interests to have a meaningful relationship with the father and propose orders for spending time with him to foster this relationship. The ICL changed her position in the course of the proceedings contending that it may be the case that a court will ultimately find that there is no benefit to the child in having a meaningful relationship with the father or that the need to protect the child may outweigh the benefit of such a relationship.
In circumstances where the father’s time ceased in March 2020 and he and other family members are soon to be assessed by a Family Consultant for the purposes of a Family Report it may not in the child’s best interest for orders to be made to foster that relationship at this interim stage.
The second of the primary considerations is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
This consideration is particularly weighty in the application under consideration, both with respect to the circumstances for the child in the care of the mother and the father.
Each of the parties identify some risks of harm said to be posed to the child by the other parent. Further, matters relating to risks to the child in the care of both parents have been identified by the Family Consultant and in documents produced on subpoena in the interim proceedings which are relied upon by the ICL in particular.
The following extracts in relation to risks posed by each parent are also taken from the previous judgment. Some of these matters do not strictly give rise to the need to protect the child from the harm contemplated in this consideration but arise from vulnerabilities in each parent which may impact on their respective parenting capacities. Although these latter matters properly arise when considering the additional matters in s 60CC(3)(f) and (g) they have been included here for convenience.

Risks posed by the mother

Risk of neglect

The mother’s history of having the oldest child removed from her care and recent reports made to the Department raise concern about a risk of neglect for the child in her care.
The mother does not provide any information about a one month period when the child was removed from her care nor is this matter referred to in departmental records available at the interim hearing.
Records of the Department indicate that 12 child protection reports in relation to the child since August 2019 have been received with four being classified as “Risk of Significant Harm” reports. All reports were closed without further investigation.
Other documents produced on subpoena by the Department and admitted into evidence refer to a particular report in April 2019 to the Department that the mother is unable to care for the child as he was “dressed inappropriately on a cold day, not fed and left in wet nappies”. This report is consistent with the father’s reports to the family consultant as to the standard of care provided by the mother. The father reported that he had observed the child to be “pretty dirty” on occasions he spent time with him and wearing the same clothes on two consecutive weeks. He reported that the mother told him that the child only had one set of clothes.
It is documented in departmental records that the mother has a history of mental health issues including a diagnosis of psychosis. Both the mother and maternal grandmother have an intellectual disability. The mother confirmed when interviewed by the family consultant that she had been diagnosed with an intellectual disability but said that it “doesn’t really” have any impact on her. She reported that her mother is her “carer” and that she receives support through the NDIS.
In records produced by the Department it is recorded in an “Intensive Family Based Service Summary Report” that as at January 2019 the caseworker from the Department held:
Current concerns are regarding safety, parental capabilities and whether the family will be able to support the developmental needs of the [child] as he grows.
In light of the allegations of risk of neglect in the mother’s care and lack of evidence about the impact of her intellectual disability and mental condition on her parenting capacity, there are significant questions regarding whether the mother’s parenting capacity is impaired by reason of her intellectual disability. It is also of concern that the maternal grandmother is described as the mother’s carer yet she herself has an intellectual disability (and there is limited information available about this). It is also of concern that the mother had a third child following separation from the father and is pregnant with her fourth child in quite rapid succession following the birth of the child of these proceedings. All these factors call into question the mother’s parental capacity and raise concerns about the harm arising from neglect.

Risk of physical harm

The claims made by the father about the mother’s partner’s alleged mistreatment of the child and the mother’s alleged threat to kill the child also raise concern about potential abuse in the mother’s care.
The allegations about potential physical abuse by the mother’s partner are third hand hearsay and appear to me to be more likely to be related to extended family disputes. The mother denies sending the message containing the serious threat and at this interim stage the dispute is not capable of resolution. While the father’s contentions that the mother did send a message on a social media platform to this effect is concerning she has given an explanation for how the messages may have come about and there is no evidence to suggest she has ever physically abused the child or any other child in her care.

Risks posed by the father

Risk of sexual abuse

As observed earlier in these Reasons the father was found guilty of sexually assaulting his nine year old sister when he was 15. As a result the father has been identified as a person causing harm by the Department.
It also became apparent when the father was interviewed by the family consultant that he had been removed from his family of origin by the Department and had spent time in his childhood in foster care. He told the family consultant that the claim concerning the sexual assault of his sister was nothing more than he had “touched” his sister when he was 12 -13 years old. This is at odds with the facts upon which he was found guilty (that he had “rubbed” his sister’s vagina with his penis).
The family consultant is of the view that the allegations the father perpetrated intra-familial sexual abuse are of significant concern and if valid may pose a risk to the child on this basis both in relation to sexual abuse and the child being exposed to poor role-modelling and inappropriate sexual boundaries. Given the material now before the Court that the father was in fact found guilty of indecent assault against his sister, this is a serious risk factor in this matter.
Also of concern is the report made by the mother to the family consultant that the father had been “making up rumours” that he had raped her.
In a similar vein the mother’s assertions that the father deliberately exposed the child to pornographic material and her complaints that the father’s brother showed her “sexualised photos” are relevant to risk of harm in the father’s care and by the paternal family.

Risk of family violence

The mother told the family consultant that the father was psychologically abusive during the parties’ relationship and following separation.
The mother also told the family consultant and reported to police in September 2019 that the father had told people that he wanted to kidnap the child. She also reported to the family consultant that the father had attempted to take the child from her when an infant. Relevantly in records produced by the Department prior to the child’s birth there was a “High Risk Birth Alert” for the child as the mother had reported the father having stated that he was going to “take the child upon birth”.
The father told the family consultant that he did not intend to kidnap the child as the mother had alleged. He said that he had told the mother that he would take the child from her if she did not look after him as he had concerns for the child’s welfare at the time.
There is also the concerning allegation made by the mother that she had been informed by a former friend of the paternal family that the father and paternal family had threatened to “bash” and kill the mother and her unborn son and there is currently an ADVO in place for the protection of the mother from the father as a result.
The father takes the position that for the most part the ADVOs issued for the mother’s protection from him were based on false allegations designed to prevent him from seeing or spending time with the child. He also seems to contend that the series of ADVOs which were not followed through indicates that the mother’s claims were unfounded. This is despite the fact that police records produced on subpoena reveal that he has pleaded guilty to a breach of the conditions of one of the ADVOs in the past. It is also concerning that in August 2019 when the father was spoken to by police for having rubbed the mother on her leg while she was at the Family Court it appeared clear to the police that the father struggled to understand that his actions were inappropriate.

Mental health concerns

The records produced by NSW Police contain several entries relating to the father’s mental health.
One police entry from July 2019 records the father having returned home after attending the mother’s home to see the child where the parties discussed their parenting arrangement which caused “some distress” to the father. It is documented that the father said to the paternal grandmother “I just can’t live with these thoughts any longer” and threatened to cause himself harm with some form of razor. On the suggestion of the paternal grandmother, the father called the police and an ambulance subsequently attended the home. The father was voluntarily taken to hospital by ambulance and admitted.
In September 2019 the father contacted the police and called an ambulance as he had started to feel “anxious and as though he wanted to hurt himself” following an argument with a friend. When police attended the father told them that he was feeling suicidal and wanted to speak with someone at the hospital. He was taken to hospital in an ambulance where he was voluntarily admitted.
The father reported to the family consultant that he had spent time in hospital in January 2020 overnight because he was having suicidal thoughts due to the stress of co-parenting with the mother. This is consistent with police records tendered on the day of interim hearing which document an incident in January 2020 as follows:
The [father] has a history of severe depression and anxiety and is currently medicated…for this. The [father] has previously suffered from mental health episodes requiring police intervention. On 22nd of January 2020 at around 6pm the [father] has realised that the next day he has a visitation day with his daughter (sic) but due to the severe heat forecast for the next day it was likely that this visitation would have to be cancelled or rescheduled. This has caused the [father] to become agitated and he began punching his fence which caused an injury to his right hand. During this the [father] has begun to have thoughts a self-harm and has contacted Ambulance NSW…

Disability

It is recorded in departmental records that the father has autism and an intellectual disability. No further evidence as to the impact of his disability on his parental capacity is available at this stage.

Risks posed by the paternal family

Historical material produced by the Department relating to when the father was a young person raises significant concern about a potential risk of harm posed by the paternal family. It is recorded in departmental records that “the paternal grandparents have had sexual assault charges and serious sexual assault allegations made against them [and] the paternal family is well known to FACS [Family and Community Services- as the Department were then known] for this risk”.
Similar concerns are recorded in more recent Departmental documents including a report in April 2019 that the paternal grandmother has been a victim of domestic violence perpetrated by the paternal grandfather.
The mother reported concern that the child was likely to be exposed to violence within the paternal family which seemed to the family consultant to be based on the father’s history of physical altercations with family members. The mother later said that she had concerns about the child having contact with the paternal grandparents because of “what they’re capable of doing” but was unable to clarify what she meant by this. She also reported that the Department had told her that the paternal grandparents are not appropriate supervisors for any time between the child and father.
The father reported to the family consultant that the child had been removed by the Department when he was “going on one” as the mother couldn’t handle the child at the time. The father said that he had been “trying his hardest to get [the child]” but the Department would not place the child in his care as his living arrangement with his mother was not considered to be “stable enough”.
Substance misuse
The father reported to the family consultant that he has used illicit drugs in the past. He also reported that he “smoked pot because of [his] anxiety” and that he had last used cannabis one week prior to the interview.
The family consultant considered that it may be of assistance if the father underwent drug testing.

Discussion – risks of harm

In summary, although the father attaches some weight to some of the risks of harm to the child posed by the mother he does not contend that the risk posed by her (as the person with whom the child lives) is unacceptable. Similarly, although the mother identifies many risks associated with the father’s care she continues to maintain that any risk posed by him may be appropriately reduced or ameliorated by supervision.
The ICL appears to consider that the risks of harm posed by both parents may be so great as to be assessed as unacceptable if orders are made as proposed by each of them. The ICL reiterated this concern at the interim hearing by requesting that the Department be once again invited to intervene in the proceedings on this basis. However, as previously discussed the Department were not a party to the proceedings at the interim hearing and subsequently declined a further invitation to intervene.
The Department has twice declined to intervene in the proceedings and the mother is the only party seeking an order that the child live with her. Further, the Department are well aware of the mother’s vulnerabilities but have declined taking robust action in relation to the child. The mother is also likely to continue to have available to her a range of support services (as outlined in paragraph 30 of these Reasons). In the foregoing circumstances it appears that the only proper order that may be made is an order that the child live with the mother.
Although the Court cannot make findings at an interim hearing the nature and magnitude of the risks posed by the father must be assessed at this interim stage. As previously discussed in making such an assessment I consider the risks of harm of the type envisaged in s60CC (2)(b) as well as some of the additional matters in s60CC (3)(f)(g) and (j).
There are many domains of harm including harm arising from sexual abuse, exposure to family violence, neglect and significant impairments in the father’s parenting capacity which are relevant to the competing applications concerning the child’s time with the father. Although it may not be possible to assess the level of risk in relation to any particular type of harmful event as unacceptably high in my view the constellation of vulnerabilities and risks associated with the father’s care are such that the child would be exposed to an unacceptable risk of harm if he were to spend time with the father that is unsupervised as he proposes.
Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case, and I will refer to those which are relevant in this case.

The additional consideration: s 60CC(3)

Views expressed by the child

The child’s relationships

To date the child has not been assessed or expressed any view in relation to his parenting arrangements. Further, even if he were capable of expressing a view given his age and the significant issues relating to risk no weight would be attached to those views.
No expert assessment of the relationship between the child and each of his parents has been undertaken.
It is likely in my view given the pattern of care throughout his life that the child has a close bond with the mother.
When interviewed by the family consultant for the purposes of a Child Dispute Conference in February 2020 the father said that he wanted to spend time with the child to “get that bond with him” and “spoil him”. The father also informed the family consultant that on recent occasions the child had spent time with him that the child “didn’t want me at all” and “doesn’t go anywhere near me” which indicated to the family consultant that the child does not have an established relationship with the father.

The family consultant concluded that given that the child does not appear to have an established relationship with the father based on both parties’ accounts it is unlikely to have a detrimental impact on the child’s wellbeing if he were not to spend time with the father on an interim basis. The family consultant also recommended that if the Court were to make orders for the child to spend time with the father that a contact centre may provide the father with opportunities to build his parenting skills so that he may engage with the child in a more appropriate and child-focused manner which may increase the likelihood that the child will be able to build a meaningful relationship with his father.

Extent to which each parent has taken, or failed to take, the opportunity to participate in decision making, spend time with or communicate with the child

Extent to which each parent has fulfilled or failed to fulfil their obligations to maintain the child

Attitude to the child and responsibilities to parenthood demonstrated by each parent

The mother has been responsible for all decision making in relation to the child to date though it appears that she has received significant assistance from a range of agencies. The child has been in her full time care except for one short period when he was removed by the Department. The mother appears to have consistently supported opportunities for the father to spend time with the child even to the extent of allowing her NDIS funding to be utilised by the father for the purposes of paying for his supervision or supervising that time herself. She appears to be doing the best she can to be a responsible parent.
The father has been inconsistent in taking the opportunity to spend time with the child as he has cancelled numerous contact events or terminated the contact visits early prior to contact being ceased in March 2020.
The father also informed the family consultant on numerous occasions when interviewed in February 2020 that he would not spend time with the child if it were determined that such time should occur at a contact centre. Although the father appears to be keen to demonstrate a responsible attitude to parenthood and build a relationship with the child he has little insight into his own vulnerabilities.

Likely effect of any change in the child’s circumstances

Capacity of each parent and others to provide for the child’s needs

Maturity, sex lifestyle, background, including lifestyle, culture and traditions of the child and of either parent

Practical difficulty and expense of a child spending time with and communicating with a parent

As discussed earlier in these Reasons, both parents have significant demonstrated shortcomings in their capacity to provide for the child’s needs. There are other concerning risk factors associated with each parent’s background and lifestyle and in the case of the father additional vulnerabilities associated with his mental health difficulties and substance use.
The Family Consultant opined in her Memorandum to Court that:
[The matter] appears to be a complex matter involving a number of parental vulnerabilities and risk issues particularly in relation to [the father].
…[It] is possible that neither parent is a suitable carer for [the child] and/or that [the mother] has significantly limited understanding of any risks posed by [the father] (particularly those reportedly identified by [the Department] and therefore a significantly limited ability to protect [the child].
The Family Consultant identifies a greater number of parental vulnerabilities and risk issues associated with the care of the father and is of the view that given the absence of an established relationship between he and the child it is unlikely to have a detrimental impact on the child’s emotional wellbeing if the child does not spend time with the father on an interim basis.
The Family Consultant recommends that if the Court is minded to order time between the child and the father that this occur a contact centre. Such an arrangement is likely to provide some protection for the child from any of the father’s parenting deficits and may provide the father with an opportunity to build his parenting skills so that he may engage with the child in a more appropriate and child focused manner.
However, the father has been either unwilling or unable to fund any supervision of his time with the child to date and the mother’s NDIS funding which previously was used for this purpose is no longer available. Further, the father seeks unsupervised time with the child and informed the Family Consultant that he will not spend time with the child at a contact centre if that were ordered.

If a child is Aboriginal the child’s right to enjoy his culture, including to share it with other people of that culture, and the likely impact of any proposed parenting order on such right[5]

[5] Section 60CC(6) states that for the purposes of 60CC(3)(h), an Aboriginal child's or a Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right to maintain a connection with that culture and to have the support, opportunity and encouragement necessary to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views, and to develop a positive appreciation of that culture.

Both parties appear to accept assertions made by the father that the child is Aboriginal.
The father informed the Family Consultant that he identifies as Aboriginal but also said that he “wouldn’t have a clue” about which aboriginal Nation his family is from. There is no evidence to indicate that the father has any knowledge of the culture of the aboriginal community to which the child belongs such as any lifestyle and traditions of that community or any means to support and encourage the child’s understanding of that culture.

Family Violence

It appears that there is currently an ADVO in place for the protection of the mother against the father.
I am unable to make any finding as contended on behalf of the father that the mother has made spurious claims against the father (through applications for AVOs) for the purposes of disrupting his relationship with the child. Taken as a whole, including her application in these proceedings and making her NDIS funding available to fund the father’s supervision, the mother appears to be supportive of the child having a relationship with the father.

Conclusion

In coming to a decision about orders that are in the child’s best interests, I attach particular weight to the need to protect the child from harm, the absence of any established relationship between the child and the father, the significant vulnerabilities in the father’s capacity to provide for the child’s needs and risks posed by him as well as the practical difficulty and expense of the child spending time with the father.
In attaching weight to these matters for the purposes of determining a proper order with respect to the child’s time with the father, I do not diminish the significance of risk factors and vulnerabilities associated with the mother’s care and remain of the view that it is appropriate for the Department to intervene in the proceedings.
As the Department has declined to intervene in the proceedings and as each of the parenting arrangements under consideration include the child continuing to live with the mother, there is no alternative to an order to this effect.
Attaching weight to each of the foregoing considerations as discussed I am of the view that it is proper for there to be an order that the child no spend time with the father.
In the circumstances, it is in the child’s best interest for there to be an order that the mother exercise sole parental responsibility for the child in the interim. The parents currently have no capacity for joint decision making in the child’s best interests and if no order is made the parents will each retain parental responsibility for the child. In my view such an arrangement would be untenable for the child who is to live with the mother and spend no time with the father.
Accordingly, the orders that I make are set out at the forefront of this Judgment.

I certify that the preceding one hundred and twenty six (126) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 28 September 2020.

Associate:

Date: 28 September 2020