Wilburn & Quinton
[2024] FedCFamC2F 42
•23 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wilburn & Quinton [2024] FedCFamC2F 42
File number(s): PAC 4812 of 2020 Judgment of: JUDGE MURDOCH Date of judgment: 23 January 2024 Catchwords: FAMILY LAW – CHILDREN - Where the subject child is eight years of age – Where the mother seeks orders for the father to spend only supervised time with the child or in the alternative no time - Where the father has spent supervised time with the child for three years – Where the mother asserts that the father has ongoing drug and alcohol issues – No finding made – Where the mother asserts that the father has perpetrated a sexual assault upon her – No finding made – Where much of the mother’s complaint of the father’s behaviour stems from the period of the breakdown of the parties’ relationship – Where the father has gained insight into his behaviour and the effects of same on the child – Where the child has expressed clear views in wanting to spend regular time with the father – Orders made for the father to spend graduating time with the child. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB, 4AB(1), 60B, 60CC, 117 (1)
Cases cited: Blinko & Blinko [2015] FamCAFC 146
Carter & Wilson [2023] FedCFamC1A 9
Dieter & Dieter [2007] FamCA 608
Gahen & Gahen (No 2) [2013] FamCA 936
In the Marriage of McDonald (1994) FLC 92-508
Isles & Nelissen [2022] FedCFamC1A 97
Mazorski v Albright [2007] FamCA 520
M & M [1988] HCA 68
Napier & Hepburn [2006] FamCA 1316
Ramzi & Moussa [2022] FedCFamC2F 1473
Whisprun Pty Ltd v Dixon [2003] HCA 48
Division: Division 2 Family Law Number of paragraphs: 128 Date of hearing: 13 to 15 November 2023 Place: Sydney Counsel for the Applicant: Ms Okereke-Fisher Solicitor for the Applicant: YFX Lawyers Counsel for the Respondent: Mr Hill Solicitor for the Respondent: Inner West Solicitors Pty Ltd Counsel for the Independent Children’s Lawyer: Ms Stollier Solicitor for the Independent Children’s Lawyer: Brian Samuel & Associates ORDERS
PAC 4812 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WILBURN
Applicant
AND: MS QUINTON
Respondent
INDEPENDENT CHILDRENS LAWYER
Intervener
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
23 JANUARY 2024
THE COURT ORDERS THAT, BY CONSENT:
1.All previous parenting orders between the parties be discharged.
Parental responsibility
2.Subject to Order 3 herein the mother shall have sole parental responsibility in respect to X born in 2015 (“X”).
3.Prior to making any significant decisions in respect to X the following shall apply:
(a)The mother shall provide the father with a minimum of 28 days’ notice in writing of any significant decision which needs to be made; except in accordance with order 12 herein.
(b)The father may provide his views to the mother in writing within such 28-day period;
(c)The mother shall take into account any such views of the father prior to making a significant decision in respect to X; and
(d)In the event that the father does not express any views to the mother in writing within the said 28 days’ notice period the mother may make any such decision in respect to X.
(e)The mother shall notify the father of her decision within 7 days.
Live with
4.X shall live with the mother.
5.The mother shall be permitted to relocate X to reside with her in the Region B district.
6.The mother is restrained from relocating X’s residence outside of New South Wales or the Commonwealth of Australia.
Changeovers and supervisory service
7.Changeovers during the period of time X spends with the father pursuant to Order 17 below shall occur at a supervision centre in the City C area and in the absence of the need for supervision then McDonalds near D Venue, City C in the state of New South Wales.
Communication between the parties
8.The parties communicate with each other in respect to spend time issues by way of email unless they shall otherwise agree in writing.
Injunctive orders
9.The mother is hereby restrained from changing X’s name from X Wilburn.
10.Without admission the mother and the father be restrained from the following: -
(a)exposing X to violence including physical or verbal threats or intimidation, whether such threats or intimidation or violence be directed at X, the mother, the father or any other member of either party’s household;
(b)physically disciplining X;
(c)denigrating the other or members of the other party’s family in the presence or hearing of X and each party shall do all acts and things reasonably necessary to prevent any other person doing so.
(d)conveying messages through X and or using X as a go-between to convey messages to each other;
(e)discussing these proceedings or any issues arising out of these proceedings with X or permitting any third party to do so;
(f)making critical or derogatory remarks on social media, such as Facebook or Twitter in relation to the other parent or referring in any way to the proceedings.
(g)being under the influence of illegal drugs or substances or alcohol in excess in the presence of X or whilst X is in his or her care; and
(h)knowingly bringing X into contact with any person under the influence of illegal drugs or substances or alcohol to excess.
Ancillary orders
11.In the event that X shall suffer any injury, be hospitalised or suffers any significant illness the parent in whose care X is in shall notify the other parent immediately except in the case of an emergency where they shall do so as soon as is reasonably practicable.
12.The mother shall do all things necessary and sign all documents required to ensure that any school which X attends from time to time is authorised to provide to the father directly a copy of all school reports and notices which parents normally receive.
13.The mother and the father shall keep each other advised as to their contact mobile telephone number or email address.
14.The mother shall provide a copy of these orders to any school that X shall attend from time to time.
THE COURT ORDERS THAT:
Time with the Father – Supervised
15.On Saturday 3 February 2024 and each alternate Saturday thereafter until and including 4 May 2024 X shall spend time with the father only (and thus with no paternal family members) from 10:00 am until 2:00 pm with such time to be supervised by Ms E and occur in the community or in the father’s home.
16.The time provided for in order 15 above is conditional upon Ms E providing to the court an undertaking as her acceptance and understanding of her role as supervisor of X’s time with the father.
Time with the father – Graduating and Unsupervised
17.Thereafter X shall spend time with the father as agreed between the parties in writing and failing agreement as follows: -
(a)as and from Saturday 18 May 2024 and each alternate Saturday thereafter from 10:00 am until 2:00 pm;
(b)as and from Saturday 10 August 2024 and each alternate Saturday thereafter from 9:00 am until 5:00 pm;
(c)conditional upon the father’s compliance with order 22, as and from Saturday 23 August 2024 each alternate weekend from 10:00 am Saturday to 10:00 am Sunday;
(d)conditional upon the father’s compliance with order 22, as and from Saturday 23 November 2024 and each alternate weekend thereafter from 10:00 am Saturday to 5:00 pm Sunday or as otherwise agreed to by the parties in writing.
Holiday Time
18.Commencing in Term 4, 2024 the following shall apply:
(a)Order 17 is suspended during all New South Wales school holiday periods;
(b)X shall spend the last week of the school holiday period with the father with such time to commence at 10:00 am on the second last Friday of the school holiday period and conclude at 5:00 pm on the last Friday of such school holiday period.
Special Occasion Time
19.In the event X’s time with the father falls on the Mother’s Day weekend, then X’s time with the father will be suspended on the weekend that Mother’s Day falls and in lieu thereof X will spend time with the father pursuant to the orders on the following weekend.
20.In the event X’s time with the mother falls on the Father’s Day weekend, then X’s time with the mother will be suspended on the weekend that Father’s Day falls and in lieu thereof X will spend time with the father pursuant to the orders on the following weekend.
21.In 2024 and each alternate year thereafter X shall spend time with the father from 5:00 pm Christmas Eve until 10:00 am Boxing Day.
Hair follicle testing
22.Prior to X’s time moving to overnight time pursuant to these orders the father shall undertake hair follicle testing and the following shall apply: -
(a)The father shall provide a hair sample under chain of custody conditions for the purpose of hair analysis drug testing, such testing to be for a period of three (3) months immediately prior.
(b)The father shall ensure that prior to such testing he shall maintain sufficient hair length in order for the testing to be carried out.
(c)The father do all acts and attend all necessary appointments to facilitate this order and that the father be responsible for the cost of the testing required by this order.
(d)The father shall provide a copy of his hair follicles test results to the mother.
23.In the event that the father’s hair follicle test results are positive for any illegal drugs or substances X’s time with the father shall continue to be for daytime periods and supervised in accordance with Order 15 herein until such time that the father produces a negative hair follicles test for a continuous period of three (3) months immediately prior.
Video communications
24.X shall have Video communications with the father via the WhatsApp or similar each Tuesday and alternate Thursday between 6:00pm – 6:30pm or such other times as the parties may agree to in writing, with the father to call the mother’s mobile phone.
Ancillary Orders
25.The father be permitted to attend school for events that parents would normally be invited to attend provided that he gives 7 days’ notice to the mother in writing of his intention to so attend.
26.Where supervision is no longer required the mother may bring with her to changeovers any adult person to assist her with changeovers.
27.The oral application of the Independent Children’s Lawyer as to costs is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH:
INTRODUCTION
This matter relates to the child of the parties’ relationship, X who is currently eight years of age.
The parties commenced a relationship in 2011 and separated on a final basis in 2020. Subsequent to the parties’ separation X remained living with the mother. Pursuant to interim orders made by the court X has been spending supervised time with the father for a period of three years.
The father commenced these proceedings in September 2020 seeking orders as to the time X spends with him. It is not in issue between the parties that X will remain in the primary care of the mother. At the first day of the final hearing the parties were able to resolve most issues, including the allocation of parental responsibility. There remain two discrete issues to be determined by the court arising from this agreement. Further, the court is required to determine the nature and form of the time that X is to spend with the father. The mother asserts that there is an unacceptable risk of harm if X were to spend time with the father other than by way of supervised time at a supervised centre. The father denies that X is at an unacceptable risk of harm in his care and seeks that X spend time with him progressing on a graduating basis. The father and the Independent Children’s Lawyer are ad idem as to the orders they seek.
For the reasons that follow it is found that on balance, it is in X’s best interests for orders to be made that his time with the father progress to unsupervised time and increase in accordance with the graduation sought by the father and the Independent Children’s Lawyer.
BACKGROUND
In these reasons a statement of fact is a finding of fact, unless it is obvious from the context that I am reciting the position of one of the parties. When considering the best interests of the child it is not necessary to make findings of fact on every factual dispute of the parties. The standard of proof with respect to such findings is the balance of probabilities: see s 140 of the Evidence Act 1995 (Cth).
Attached to the Outline of Case filed by the Independent Children’s Lawyer was a chronology of events. Such chronology was adopted by both parties on the final day of the hearing and is as follows:
Date Event 1978 Date of birth of the mother's partner, Mr F. 1981 Date of birth of the father (presently aged 42 years). 1984 Date of birth of the mother (presently aged 39 years). 2012 / 2013 Parties commenced to live together. 2015 Date of birth of X (presently aged 8 years). 2019 The father's father passed away. The father deposes that this was the catalyst for the breakdown in the party's relationship. 2019 Mother deposes that she was sexually assaulted by the father and that the parties separated and subsequently reconciled. Father denies sexual assault. No charges laid. 01.2020 Mother deposes that the parties separated under the same roof. 05.03.20 Father deposes that the mother ended the parties’ relationship. Early 2020 Father acknowledges that he caused a hole in the bathroom wall following X throwing a "tantrum". Early 2020 Incident between the parties. Mother deposes that when she returned home, she found the father passed out and violently ill. The father acknowledges that he had drunk an entire bottle of vodka in 20 minutes. X had been in the father's care. The father subsequently left the home allegedly with a noose in his bag. The father denies this and deposes that he did not have any intention of self-harming and that he was trying to draw attention. He deposes that it was a one off and that he was away from the home for about 4 hours and when he returned, he self-admitted to G Hospital and was released later that night. Mother called the police who attended the home. Police and SES carried out a search for the father after the mother called the police. The police subsequently applied for an AVO on behalf of the mother. Early 2020 Mother made a statement to the police. Early 2020 Father deposes that he was interviewed by the police. Mother granted a provisional AVO against the father. AVO included X initially. Early 2020 Final AVO made against the father for 2 years on a without admission basis. Mid-2020 Mother deposes that she commenced a relationship with Mr F. Expert report states that the mother re-partnered in March 2020 (par 6 of report). Mid-2020 Father completed a parenting after separation programme. Mid-2020 Incident at X's day care centre when the father attended. Father given a warning by the police. Mid-2020 Date of Section 601 certificate. Mediation deemed inappropriate due to family violence allegations and AVO. 14.09.20 Date of filing of Initiating Application on behalf of the father. Late 2020 According to the single court expert the mother and Mr F commenced to live together (par 6 of expert report), 02.11.20 Date of filing of Response to Initiating Application on behalf of the mother. 03.11.20 Orders made for a CDC memorandum. The father deposes that this date that he consumed an illicit substance. Late 2020 Father undertook a hair follicle test. Test results positive for an illicit substance. Late 2020 Father completed Circle of Security "abbreviated course". Late 2020 Father undertook a chain of custody urinalysis test. Test results negative for any illegal substances. 19.01.21 Date of CDC memorandum prepared by Ms H. Father undertook a hair follicle test. Positive for an illicit substance. 11.02.21 Orders made for X to live with the mother and spend time with the father supervised by a contact centre for 2 hours per week and by J Contact Service until the contact centre time commences. Orders for drug testing. Various ancillary orders. ICL appointed. M Law Firm appointed as ICL. 09.03.21 Date of property orders. The father deposes that this was the last date that he consumed alcohol. Early 2021 Father undertook a hair follicle test. Test negative for all illegal substances. 15.04.21 Directions hearing following appointment of former ICL. 05.05.21 Date of filing of Amended Response on behalf of the mother. 03.06.21 Date of filing of Further Amended Response to Initiating Application on behalf of the mother. 13.08.21 The court noted that the proceedings were unsuitable for FDR at that stage. 09.09.21 Orders made appointing Ms K as the single court expert. 10.2021 Father commenced spending time with X for 1.5 hours per fortnight supervised by L Contact Service. 19.11.21 Brian Samuel of Brian Samuel & Associates appointed as ICL. 30.11.21 Father's time with X increased to 2 hours each fortnight at L Contact Service Suburb N. 09.10.22 Father commenced spending community-based visits with X supervised by L Contact Service. 10.11.22 Directions made for a compliance and readiness hearing. Proceedings listed for final hearing for 3 days commencing on 1 August 2023. Section 102NA order made by the court. 2023 Date of birth of O being a child of the mother's relationship with Mr F. 01.05.23 Date of filing of Amended Initiating Application by the father. 23.06.23 Hearing dates of 1 to 3 August 2023 vacated by consent due to non-availability of expert report. Proceedings listed for hearing on 13 to 15 November 2023. 07.08.23 Date of single expert report prepared by Ms K. 16.10.23 Proceedings adjourned to final hearing. Court noted that the parties and the ICL have agreed not to call the single court expert to give evidence.
Both parties were represented at the final hearing by legal representatives funded by the Commonwealth Family Violence and Cross Examination Scheme.
The Date of Separation
The parties are in dispute as to the date of their final separation. The mother alleges that the parties separated under the same roof in January 2020. The father alleges that the parties separated on 5 March 2020 and remained living under the same roof until 29 March 2020.
The mother’s written evidence, which had the benefit of being prepared by her legal representative, is scarce. In its entirety the mother deposes that: -
[Mr Wilburn] and I commenced our relationship in 2011 and we separated on a final basis in January 2020.
[Mr Wilburn] and I had an earlier period of separation after I had been assaulted by [Mr Wilburn] [in] or about [late] 2019.
[Mr Wilburn] and I continued to live separately and apart under one roof from January 2020 until 29 March 2020. [1]
[1] Mother’s Trial Affidavit paragraphs 4 to 6.
The father deposes that his father passed away in 2019 and that was the catalyst for the breakdown of the parties’ relationship. The father travelled interstate for his father’s funeral. He did not feel supported upon his return home and the parties “drifted apart” but continued to work on their relationship. The mother ended the relationship on 5 March 2020.
The decision to end things was [Ms Quinton]’s. I did not want the relationship to end and [Ms Quinton] sent me mixed messages over the next few weeks about our relationship. Leading up to this date, we would interact as if we were still a couple, which is why I was so surprised when she decided to end the relationship. Whilst we were having problems within our relationship, I believe that we had committed to work on the relationship.
Upon [Ms Quinton] ending our relationship, we stayed in the same house but were sleeping in separate bedrooms. We continued to jointly care for [X] in the same manner described above. [2]
[2] Father’s Trial Affidavit paragraph 22 and 23.
It was put to the father that he has asserted a later date of separation to “serve your best interests”. The father replied:
FATHER: I believe [Ms Quinton] had vacated the relationship emotionally sooner than she had made me aware that she was leaving. I was blindsided.
COUNSEL: So it’s the case that unless [Ms Quinton] tells you something expressly, then you wouldn’t accept it anyway?
FATHER: I’m not a mind reader, sir. I need to be told on how someone is feeling. If a relationship is over, I can’t just guess that.
In cross examination it was clearly put to the mother that the parties’ relationship continued until at least 5 March 2020. She deposed that she clearly indicated halfway through February that she had no intention of continuing the relationship. This is inconsistent with her written evidence that the relationship ended in January 2020. When it was put to the mother that her relationship with the father did not end in January 2020 the mother’s response was: “I felt that it had.”
Material produced by the father’s doctor records that the father was seeing his doctor regularly during this period of time. In early 2020 the father presented to the doctor with a medical condition. There is no indication of any emotional upheaval at this time. In early 2020 the father advised the doctor that his father and a friend passed away the prior year, his wife was threatening to leave him, and he had experienced depression for two years. He requested a referral to see a psychologist. In early 2020 the father advised the doctor that he thought he was heading for a divorce with his wife, that his wife might be cheating on him and was afraid of losing his son. I accept that this is consistent with a person who is not clear that the relationship has ended.
Having regard to the mother’s inconsistent evidence, the lack of any real challenge to the father’s evidence and the consistent nature of the father’s discussions with his treating medical practitioner as set out above I am satisfied that, whilst the mother may have decided that the relationship was over earlier, this was not communicated to the father until 5 March 2020. I accept the parties separated on 5 March 2020.
THE PARTIES’ PROPOSALS AND ISSUES FOR DETERMINATION
The parties and Independent Children’s Lawyer have agreed that orders be made on a final basis in accordance with the Minute of Proposed Consent Orders[3] broadly that: -
[3] Exhibit 1.
·The mother shall have sole parental responsibility subject to provision for the mother to obtain the father’s views prior to the making of any such decision.
·X live with the mother who is permitted to relocate X to reside with her in the Region B district.
·The mother be restrained from relocating X’s residence outside New South Wales.
·That changeovers of X between the parties’ households shall occur at a supervision centre in City C and “in the absence of need for supervision” then at McDonalds near D Venue, City C.
·X have video communication with the father twice a week. The parties are in dispute as to the days that such communication is to occur. The father seeks that the current regime of such time occurring on a Tuesday and Thursday continue. The mother seeks that such time occur on a Wednesday and Sunday.
·The parties communicate via email.
·The mother be restrained from changing X’s surname.
·Both parties be restrained from: -
·exposing X to family violence;
·physically disciplining X;
·denigrating the other party of their family in X’s presence;
·conveying messages through X;
·discussing these proceedings or any issues arising out of these proceedings with X;
·making critical or derogatory remarks on social media in relation to the other party or referring in any way to the proceedings; and
·being under the influence of illegal substances or excessive alcohol in X’s presence or allowing X to come into contact with any person who is so influenced.
·Further ancillary orders be made as to the provision of information including the provision of contact mobile numbers and email addresses.
·The parties agree that the father should be permitted to attend school events for X. The father says that he should provide 7 days’ notice to the mother, the mother says that 14 days’ notice should be provided.
At the conclusion of the evidence in the hearing the father advised the court that he agrees with the orders as sought by the Independent Children’s Lawyer that X spend time with the father in accordance with the following graduating regime: -
·for three months with the father only for a period of four hours each alternate Saturday in the presence of Ms E subject to her providing an undertaking as to her supervisory role;
·for a further period of three months for four hours unsupervised;
·thereafter for a period of three months for up to 8 hours each alternate Saturday;
·conditional on the father’s compliance with his requirement to undertake hair follicle testing and it returning a negative result for a period of three months each alternate weekend from 10 am Saturday to 10 am Sunday; and
·thereafter each alternate weekend from 10 am Saturday to 5 pm on Sunday.
Further orders are sought by both the Independent Children’s Lawyer and the father that X spend time with the father for 7 days in each school holiday period commencing in Term 4 2024, on Father’s Day and Christmas Day. X’s time with the father is to not progress to overnight time until he provides a negative hair follicle drug test result to the mother at his expense.
The mother presses only orders 5-8 and 18(b) and 18(c) of her unfiled further Amending Response that pending the mother’s relocation to the Region B area X continue to spend time with the father at the L Contact Service Supervised Contact Centre at Suburb N for two hours per fortnight. Upon the mother’s relocation to the Region B area X’s time with the father will continue for two hours a fortnight but will take place at the P Contact Centre at City C. The father is to be solely responsible for all costs associated with the supervision. The mother further seeks an order that the father be restrained from attending within 100 metres where the mother works or where the mother and X live.
The determination of the time that X will spend with the father and whether it is in his best interests that such time be supervised until he is of age requires a determination as to: -
·the mother’s allegations that the father has perpetrated family violence;
·the father’s mental health and any potential impact on his parenting capacity;
·the father’s alleged drug use and any potential impact on his parenting capacity; and
·X’s views and the weight to be afforded to those views.
THE EVIDENCE
A direction was made at the commencement of the hearing that no annexures to affidavits or exhibited documents would be read in the matter until they were individually tendered and referred to during the course of submissions.
The father relied on the: -
·Case outline filed 6 November 2023;
·Amended Initiating Application filed 1 May 2023;
·His affidavit filed 29 May 2023;
·The affidavit of Ms E filed 7 June 2023; and
·documents tendered during the course of the hearing.
The mother relied on the: -
·Case Outline filed 7 November 2023;
·Single Expert Report of Ms K dated 7 August 2023;
·Her affidavit filed 15 May 2023;
·Child Dispute Conference Memorandum of Ms H dated 19 January 2021;
·The affidavit of Mr Q filed 16 May 2023;
·The Further Amended Response dated 8 May 2023 and marked as exhibit M1; and
·documents tendered during the course of the hearing.
The Independent Children’s Lawyer relied on the: -
·Case Outline filed on 16 October 2023;
·Child Dispute Conference Memorandum of Ms H dated 19 January 2021;
·Single Expert Report of Ms K dated 7 August 2023; and
·documents tendered during the course of the hearing.
Whilst I have read and considered all of the material relied upon by the parties and the Independent Children’s Lawyer in these proceedings, I do not propose to traverse all of the evidence in these reasons but rather address the evidence that grounds the reasons for my decision: Whisprun Pty Ltd v Dixon [2003] HCA 48.
THE SINGLE EXPERT’S REPORT
A Single Expert Report dated 7 August 2023 was prepared for the purposes of the final hearing by Ms K (‘the single expert report”). Ms K is a national registered psychologist of considerable experience, including for nine years as a Family Consultant in the family law jurisdiction (“the single expert”). There was no challenge to her expertise and I am satisfied the single expert is suitably qualified to provide her opinion to the court.
The single expert conducted interviews and observations and had access to and read a wide range of material including material produced under subpoena including from the New South Wales Police, the New South Wales Department of Communities and Justice and medical records relating to the father.
The single expert clearly pivoted her recommendations to the court on the findings of fact made by the court. She broadly recommended that: -
·X live with the mother.
·If there is evidential support to the mother’s allegations of family violence and her concerns that the father poses an unacceptable level of risk to X’s wellbeing, it would not be appropriate for X to spend large blocks of time unsupervised in the father’s care. Both parties should contribute to the costs of supervision. There would be serious concerns about the appropriateness of the parties sharing parental responsibility.
·In the event the court determines that long term supervision is necessary, consideration could be given to such supervision ceasing when X attains 13 years of age assuming there are no further incidents of family abuse or violence.
·If the court is confident that the father is not using or misusing drugs or alcohol and accepts that his behaviour does not pose a risk of harm to X or the mother, then an arrangement working towards the lifting of supervision might be considered as appropriate in an incremental fashion as follows: -
·For a period of three months with the father only (ie no paternal family) supervised by a professional supervision service for up to four hours each alternate Saturday with such time to occur in the community or in the father’s home;
·Thereafter for a period of three months for up to four hours each alternate Saturday unsupervised, with changeover of X between the parties to occur at a professional contact service;
·Thereafter for a period of three months for eight hours each alternate weekend before overnight time is introduced. The first overnight time occur on a Saturday night with X to return to the mother by 9:15 am the following Sunday morning.
·The parties use a professional supervision service to facilitate X moving between the households.
·X communicate by telephone/Facetime each Wednesday and Sunday with the mother to facilitate such communication by contacting the father’s mobile phone and ensuring X is afforded privacy during such calls.
·The father be retrained from consuming alcohol or illicit drugs for 24 hours prior to and during the time X is in his care.
·Each party be restrained from abusing or denigrating the other party.
The single expert was not required for the purposes of cross examination. In those circumstances I give significant weight to her unchallenged report which quite properly pivots her recommendations on the findings of fact to be made by the court.
CURRENT CIRCUMSTANCES
X lives with the mother, her current partner and their son who is one year old in a suburb in Sydney. The parties have agreed that the mother will be permitted to relocate with X to the Region B area. It was the mother’s evidence that she does not anticipate this move will occur in the next six months. The mother is a qualified educator currently on maternity leave with a view to returning to part time work early this year.
The father lives by himself in rental accommodation in the suburbs of Sydney and has not re‑partnered. He is employed as a transport worker for R Company five days a week typically from 6 am to 2pm.
X will commence Year 3 at school this year. Neither party raises any current concerns relating to his overall health, progress or development. The single expert’s opinion that X is a happy, healthy and fairly emotionally resilient child who is doing well was unchallenged and I so find. It is agreed that X is a confident child who has been taught by the mother to speak up about things he feels are not appropriate.
THE LEGAL PRINCIPLES
I am required to make such parenting orders as the court considers proper. In deciding whether to make a particular parenting order I am to regard the best interests of X as the paramount consideration. Those best interests are ascertained by a consideration of the objects and principles in s60B and the primary and additional considerations in s 60CC of the Family Law Act (1975) (“the Act”). I am required to balance the benefit to X of having a meaningful relationship with both his parents and the need to protect him from physical or psychological harm from being subjected or exposed to family violence. In balancing these considerations, I am required to give greater weight to the need to protect X from harm.
In reaching my decision I have considered all the relevant sections of the Act. I am not required as a matter of law to specifically address each such consideration.
MEANINGFUL RELATIONSHIP
A meaningful relationship is not measured simply by the amount of time that a child is spending with a parent but the quality of the relationship between them. I am not to assume that there is a benefit to X in having a meaningful relationship with the father, but rather am required to ascertain whether a meaningful relationship with the father will be of positive benefit to him.[4]
[4] Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520.
The proposal of the father and the Independent Children’s Lawyer will allow a meaningful relationship between X to develop as he graduates to spending weekend and block holiday time with the father.
On the mother’s proposal X will continue to spend two hours a fortnight with the father on a supervised basis until he is of age. It is reasonable to infer that such limited time would not be conducive to the further development of any relationship between X and the father.
The mother acknowledged to the single expert the importance of X having the opportunity to spend time with the father in terms of his sense of identity and so as to prevent X idealising his father. She concedes that the complete absence of the father from X’s life could have potentially detrimental effects on X long-term including a sense of loss/abandonment and trust issues. The mother further does not want to potentially damage her relationship with X by his blaming her for the absence of the father in his life.[5]
[5] Single Expert Report, paragraph 130.
The single expert opines that X is likely to benefit from having the opportunity to maintain a relationship with both of his parents provided that he experiences such relationships in a way which is safe and protects him from harm.
The opportunity for a meaningful relationship with his father can provide [X] a sense of his own identity and origins. Regular and predictable time with his father avoids the risk of idealisation or devaluation of an absent parent. [X]’s developing sense of self, self-confidence and self-esteem, would also be enhanced by having some direct knowledge about, and experience of his father - so long as those experiences are comparatively positive, and [X] continues to feel safe. Having to navigate a relationship with both of his parents and their respective families may also enhance [X]’s coping and problem-solving skills in dealing with differences and differences within various situations and relationships. [6]
[6] Single Expert Report, paragraph 195.
RISK OF HARM
The mother submits that the risk issues arising from the father’s perpetration of family violence, conceded past drug use and alleged mental health issues poses an unacceptable risk to X such that orders allowing only supervised time for two hours a fortnight should be made.
The father and Independent Children’s Lawyer submit that the court could not be satisfied on the evidence that the father poses an unacceptable risk to X and that any risk the court may find is sufficiently ameliorated by the time X is to spend with the father occurring on a graduated basis leading to overnight time upon the father undertaking testing for illicit drugs.
Whilst I have considered all of the parties’ evidence, I focus my reasons on the factual findings as sought by the parties during the course of final submissions.
Family Violence
In these proceedings there are a number of specific contentions about matters relating to X’s best interests that depend in part upon findings as to the mother’s allegations of family violence, including the allocation of parental responsibility.
The Alleged Sexual Assault – in late 2019
The mother alleges that in late 2019 the father had sexual intercourse with her in their bedroom ensuite despite her communicating to him that she did not consent. “[Ms Quinton] stated that she had tried to hold her nightgown down and her underwear up during the assault but that [Mr Wilburn] did not take her resistance ‘seriously’”.[7] The mother reported to the single expert that prior to the assault the father had been sitting outside her room for hours, had behaved in a “very physically aggressive manner” towards her and “had asked her to tell him ‘‘when I would masturbate because he liked to know.”[8]X and the maternal grandmother were at the parties’ home at the time of this alleged incident.
[7] Child Dispute Conference Memorandum, paragraph 17.
[8] Ibid, paragraph 19.
The mother made a statement to the police in early 2020 and the father was interviewed in early 2020. No charges were laid. The father agreed on a “without admissions” basis to an order restricting his behaviour with the mother listed as the person in need of protection in early 2020 for a period of two years. There is no evidence that this Order was breached by the father.
The father denied this allegation to the police, in his affidavit and during the course of his oral evidence. The father told the single expert that only consensual sexual activity occurred and that it was his view of the incident that: “I made love to my wife”. It is the father’s evidence that he was gobsmacked by the mother’s allegations and that he had no idea that the mother felt that way. The father told the single expert that the mother had confronted him with the allegation approximately three weeks after the incident and had sent him a text message so that: “she knows I did not set out to make her feel that way.”[9] The single expert records:
[Mr Wilburn] said that he “do[es] respect the word ‘no’ and that the word “‘no’ was never spoken” but acknowledged that “maybe I misread her body language…..it is “really not my character to be forceful towards women.”..he “never felt I had ownership over [Ms Quinton] and “never felt entitled to [sexual intercourse.] He stated that if [Ms Quinton] was not in the mood for sexual activity, “I wouldn’t push it” and said that he would “be a little cranky” if she declined but “would respect that.” [10]
[9] Single Expert Report, paragraph 18.
[10] Ibid.
In her oral evidence the mother asserted that she did not think the message the father was referring to was associated with this incident. She conceded that she did respond to a message that evening and said that she appreciated the father had acknowledged that he made her feel that way. It was her evidence that she did not believe that the father took her to be consenting to what occurred.
The father’s oral evidence was that he was always respectful: “If I was given a no in my advances I would always respect that.” His oral evidence was that the parties did have sexual relations in the ensuite on this date. He was asked if the mother resisted him and he answered no. The following exchange then took place:
COUNSEL: Did you tell the consultant on 3 December 2020 that you maybe misread her body language?
FATHER: I did. Because there was no indication that my advances weren’t reciprocated.
COUNSEL: Was there any indication they were reciprocated?
FATHER: Yes – I don’t want to go into detail but if I have to….
COUNSEL: After the event, wasn’t it the case that the mother made it clear to you that she was not happy with what had occurred?
FATHER: Not straight after the event – some weeks later.
This is an extremely serious allegation. The mother bears the onus of proof. Having regard to the conflicting nature of the evidence I cannot be satisfied that the mother has met her evidentiary burden to ground a finding that the father perpetrated a sexual assault upon her as alleged.
The Damage to the Wall – Early 2020
The father deposes that in early 2020 he was sad about the ending of the parties’ relationship. After collecting X from day care at approximately 4:30 pm he took him home to get ready for his sports lesson at 5.00 pm. They were running late and he asked X to dress himself as he needed to use the bathroom. Upon X throwing a tantrum in the lounge room the father walked away because:
I was stressed out and did not want [X] to see me in such a state. I just needed a few minutes to regroup. I went into the bathroom which is quite small. I was emotional and lashed out and my elbow hit the wall creating a hole. The wall was made of [a thin material]. [X] came in and asked about the bang. He saw I was crying and I picked him up and gave him a hug. I eventually fixed the hole after [Ms Quinton] had moved out.[11]
[11] Single Expert Report, paragraph 25.
The mother did not witness this incident. I do not accept the mother’s assertion that the father “punched” a hole in the wall as alleged by her to the single expert. It is inconsistent with both the mother’s evidence and the grounds relied upon by the Police to support the application for an Apprehended Domestic Violence Order that the father told her that: “I put my elbow through the wall in the bathroom.” [12]
[12] Mother’s Affidavit, paragraph 142.
I accept the father’s unchallenged evidence that X came into the bathroom after hearing a bang but did not appear to be emotional or adversely affected by hearing such a noise.
The mother submits that a finding can be made that this was an act of family violence perpetrated by the father. Whilst damaging property may be an act of family violence, such act must still meet the definition as contained within the Act. I am not satisfied on the evidence that the father’s behaviour on this occasion was violent or threatening. I am satisfied in circumstances where this incident occurred in the absence of the mother and during a period of emotional upheaval that it was an act of frustration. This of course in no way excuses the father’s behaviour – it was inappropriate and a clear example of the father’s inability at this time to self-regulate.
Coercive and Controlling Behaviour
The mother submits that the following two incidents are examples of the father perpetrating coercive and controlling behaviour as “the father did not let the mother spend time with her friends.”
The mother deposes that in early 2020 date she received a phone call from the father at approximately 1:00 am. The father was screaming and shouting at the mother “about a particular medication” and called her a “fucking slut”.[13]
[13] Mother’s Affidavit, paragraph 135.
The father deposes that in early 2020 he was looking for chewing gum in the mother’s handbag and found a letter addressed to the mother dated early 2020, a time when the parties were still together, about the mother having had a chemical abortion when she was in the early stages of pregnancy. It is uncontested that the mother did not advise the father that she was pregnant. The father took a photo of the letter and sent it to the mother.
The mother’s allegations as to the words attributed to him at this time was not put to the father in cross examination. The following exchange did take place during cross examination by the mother:
COUNSEL: Isn’t this another occasion [in early 2020] when you depose you were separated – where the mother had left the house to be away from you, that you were contacting her?
FATHER: She didn’t leave the house to get away from me she was out on a night with friends.
COUNSEL: She was out on a night with friends, and you weren’t respecting her time away from you, were you?
FATHER: I’m sorry, we had a kid together in the same house. We were in contact regardless of where she was. It wasn’t me trying to dominate and control her in any way.
COUNSEL: Well why couldn’t the communication wait until she got home?
FATHER: If I had a question – I asked when I needed to ask a question. She was always free to respond in her own time.
COUNSEL: So it is the case that you just send a message when you want to.
FATHER: Don’t we all?
COUNSEL: The mother was with her friends
FATHER: She hadn’t requested that I leave her alone.
COUNSEL: So if she doesn’t say it out loud –
FATHER: I respect her time away – but a text message, she is free to respond in her own time.
COUNSEL: I put it to you that you don’t respect her time away because you text her.
FATHER: Am I not allowed to text a person I’m in a relationship with in any given moment? I didn’t understand that to be a rule. If she requested time alone then I would respect that but in a relationship, on any given day, at any given time, we would communicate.
The mother deposes that in early 2020 she had gone out in the evening, leaving X in the care of the father. She received a telephone call from the father wherein he told her that he knew she had been cheating and asked her: “Where has the toy gone. I have been through your drawers, and it is missing.”[14] The mother deposes that the father was clearly upset and was “bellowing” down the phone.
[14] Ibid, paragraph 178.
The context of the “toy” is provided by the father who deposes that on this occasion whilst the mother was out with a girlfriend, he discovered that a sex toy the parties had purchased together was missing. He sent her a text asking her where it was. The mother called him and told him that she had it with her. When the father asked why the mother would take it from the house, the mother told the father that it was none of his business. [15]
[15] Father’s affidavit, paragraph 29.
The terms “coerce” and “control” are not defined in the Act. Judge Beckhouse in Ramzi & Moussa [2022] FedCFamC2F 1473 stated at [45] that:
Generally, coercive control is understood as a course of conduct aimed at dominating and controlling another person, including a family member.
In Carter & Wilson [2023] FedCFamC1A 9 Deputy Chief Justice McClelland and Justice Campton sitting as the Appellate Division stated at [10] that:
The assessment of whether conduct that falls within one of the provided examples constitutes family violence as defined in s 4AB(1) of the Act necessarily requires that conduct to be considered in the context in which it occurred.
Both these incidents occurred in the context of the breakdown of the parties’ relationship. They involve the father messaging the mother on one occasion on each of the above dates. There is no evidence to ground a finding that the father would not allow the mother to spend time with her friends. It is simply drawing a long bow to try and assert that this behaviour was conduct of the father aimed at dominating or controlling the mother and such an assertion is rejected.
Alleged Breaches of the Apprehended Domestic Violence Order
It is uncontested that subsequent to the parties’ separation the father sent to the mother by way of Google Photos an image of himself. Whilst it was the mother’s evidence that this was a nude photo, it is uncontested that the photo did not depict the father’s genitalia. The father was spoken to by the police with respect to this incident and his phone inspected. No charges were laid. I am satisfied as to the father’s explanation that he was unaware that the photo would be sent to the mother as they still had the same iCloud account and was a photo by him sent to a third party with whom he was romantically involved at the time in response to a similar photograph sent by them to him.
It is uncontested that on 30 June 2020 the father attended X’s family day care. He deposes that he attended after hours to ensure that the mother was not there and asked if he could leave presents with the day care worker for X’s birthday. The day care worker advised the father that they were not comfortable with the father being there and he left. The father received a telephone call an hour later from the police warning him that this could be seen as a breach of the Apprehended Domestic Violence Order then in place. No charges were laid.
The mother deposes that she called the police with respect to the father’s attendance after the day care worker telephoned her and told her that the father asked her if X was still attending day care there and what the mother had told her about him. After the day care worker told the father she felt uncomfortable with him being there, he “ran away.”[16]
[16] Mother’s Affidavit, paragraph 166.
I am not satisfied that such conduct, whilst perhaps ill advised, in any way constituted a breach of the final Apprehended Domestic Order made for the protection of the mother in early 2022.
Mental Health Issues
The father deposes that one evening in early 2020 he was caring for X and put him down to bed at approximately 8:30 pm. After finding that the “toy” was missing from the home he discovered messages of a sexual nature between the mother and a third party. The father’s brother was in attendance until 11:00 pm. The father deposes that he became quite emotional that night and at approximately 5:00 am the following morning he proceeded to drink an entire bottle of spirits in approximately twenty minutes. He recalls being on the phone to the mother crying during this time and her telling him that she was coming home prior to blacking out. He recalls the mother putting him to bed and he went to sleep.
At approximately 1:30 pm the father was emotional when the mother came into the room. He dressed, collected his bag, cigarettes and a rope and upon going to leave the house he told the mother that: “I am going to talk to my dad” and left. He deposes that he had no intention to commit any act of self-harm and did this to get the mother’s attention, which was unsuccessful. He then went for a walk and fell asleep. After 3-4 hours he commenced walking home when he was advised that people, including the state emergency services and the police had been out looking for him. Upon arriving home he was able to hug X. He voluntarily went to G Hospital via ambulance for a health check and mental assessment and was released that same night after speaking to a psychologist.
From April 2020 until December 2020 the father took prescribed anti-depressants. He attended upon a psychologist on a regular basis from March to June 2020. He further regularly attended upon his general medical practitioner who offered him support. The father ceased the medication in December 2020. I accept and find that there has been no further episodes that could be attributed to mental health issues since this time.
The mother pressed for a finding to be made that the father has a “long standing mental health issue.” Such a submission did not appear to be pressed when asked how such a finding could be made in the absence of any appropriate medical evidence to support it. There is no evidence that the father has ever been diagnosed with a mental illness. At its highest, I find it is possible that the father had a mental health episode on in early 2020 but I reject any assertion that a finding could be made that the father has any long standing mental health issues.
Drug and Alcohol Use
The father concedes that he was a regular user of an illicit substance during his relationship with the mother. He deposes that the last time he used an illicit substance was late 2020. [17] He asserts that he has changed his social circle and no longer socialises with people he used to use an illicit substance with.
[17] Father’s Affidavit, paragraph 11.
The father advised the single expert that he started using illicit substances on an irregular basis when he was seventeen years of age with such consumption slowly increasing until he was using it fairly consistently on a daily basis. By his mid-to-late twenties and during his relationship with the mother he was consuming on average every night. The single expert records that the father was candid in acknowledging that during the relationship he procured illicit substances for his own use and for a third party. He denied to the single expert experiencing any withdrawal symptoms when he ceased using illicit substances in late 2020 “cold turkey” when it became apparent that the mother was raising it as an issue in the proceedings. “He reflected that the ritual of using illicit substances was probably harder than the actual drug to give up.” [18]
[18] Single Expert Report, paragraph 82.
It is not contested as set out in the chronology in paragraph 6 above that the father tested positive for an illicit substance in late 2020 and early 2021 and negative in early 2021 and late 2023. The father concedes that he did not undertake all drug tests as requested due to the financial impost; such a test costing upwards of $500.[19] It was not challenged that during the course of the father’s employment as a transport worker that he is regularly drug tested and a positive result would result in his instant dismissal.
[19] Single Expert Report, paragraph 83.
I am not satisfied there is evidence to ground a finding that the father still uses illicit drugs.
The father deposes that he does not drink alcohol and has not done so since his 40th birthday in 2021.[20] The mother conceded in her interview with the single expert that the father’s consumption of alcohol had almost ceased prior to the early 2020 incident and acknowledged that his behaviour in question on this occasion was unusual for him. [21]
[20] Father’s Affidavit, paragraph 10.
[21] CDC paragraph 25.
I accept and find that there is no evidence to ground a finding that the father drinks alcohol to excess.
Conclusion as to Harm
I accept the unchallenged opinion of the single expert that:
….information that is available seems to establish that, at least in [early] 2020, [X] was exposed to various situations in the former family home which very likely created stress for [X] and for each of his parents. This included [X] likely being exposed to conflict between his parents; parental distress and/or emotional dysregulation; property damage; an episode of binge drinking on behalf of the father which resulted in [X] being left inside his home alone and without a suitable carer; and the involvement of Police and emergency services in searching for the father who went missing after having made comments to the mother that suggested he could be at risk of suicide. Such dysfunctional parenting and behaviour on behalf of the father is of concern, not least because in relation to events [in early] 2020, as noted, [X] was at home and alone with his father, who had been entrusted by the mother to take care of their son.[22]
[22] Single Expert Report, paragraph 200.
I further accept the unchallenged single expert’s summary of the supervised contact reports that:
No concerns have been noted in contact observation reports about child safety concerns, the nature of parent/child interactions, or [X]’s behaviour at the beginning, during or end of visits. The father has not behaved in any manner which the supervisor was concerned about or has required the supervisor to intervene. The father's responses and capabilities to meet [X]’s needs during visits and his behaviour appear to have been considered by supervisors appropriate.[23]
[23] Single Expert Report, paragraph 193.
THE ADDITIONAL CONSIDERATIONS
Having regard to his young age and the single expert’s opinion that X did not present as having an awareness that the parties are litigating as to parenting arrangements, his opinions as to each of the parties’ proposals was not directly sought or expected.
The single expert further stated that X was “extremely clear” that he wants to be able to continue to spend regular time with the father and expressed confidence in his ability to cope with a sleep over at this father’s home as he has successfully managed staying overnight in the care of other family members. He conjectured that he would feel “extremely sad and upset” if he was unable to spend any time with the father and expressed a preference for video calls with the father. [24]
[24] Single Expert Report, paragraph 170.
X identified the mother, his baby brother, Mr F and the father as important members of his family.
Given [X]’s age when his parents separate and the three intervening years in which [Mr F] has been a constant presence in his home and in his life, [X]’s view of his mother’s partner as a father figure is considered (from [X]’s perspective) understandable.[25]
[25] Ibid, paragraph 158.
X also identified to the single expert that his maternal grandparents and uncle are important persons in his life.
The single expert’s opinion that the behaviour and conversations of X with her indicate a child who has developed a predictable and secure affectionate bond with the mother and who loves and has a positive relationship with the father was not successfully challenged and I so find. Such a positive relationship with the father has been established despite X only spending two hours a fortnight on a supervised basis with the father for the past three years.
It is undisputed that subsequent to separation the mother has made all of the significant decisions with respect to X’s care, including his attendance upon a psychologist. The father was not consulted with respect to this decision. The mother expressed to the single expert apprehension at the thought of having to begin to consult directly with the father as to parenting matters in the future.
The father has since separation consistently availed himself of the opportunity to spend time with X including persisting with supervised time for a considerable period of time at a financial cost borne solely by him.
The father is in arrears with respect to his child support obligations. The father earns approximately $65,000 per year and has been paying the entire costs of the supervised time with X for a period of three years.
It is not the subject of dispute that subsequent to the relocation of the mother and X to the Region B area the distance between the homes of the parties will be a driving distance of between 2 and 3 hours.
The mother seeks that X’s time with the father continue to occur at a professional contact centre. There is no evidence that there is a contact centre that is able to provide a supervision service for the parties for the next nine years. Such continuing supervision will be at a cost that the mother seeks be solely borne by the father.
The mother is the uncontested resident parent. There is no evidence that she does not have the capacity to parent X and provide for his daily needs. “There was nothing observed in [X] during this assessment to suggest that he is being exposed to incompetent parenting.”[26] The single expert further opines that the mother arranging support for X from a mental health professional is justified if X was experiencing the emotional distress and changes in his behaviour alleged by her. The mother was not challenged as to her allegations in this regard and I find that arranging this support for X demonstrated a responsible attitude towards X’s care.
[26] Single Expert Report, paragraph 156.
X demonstrated in his interview with the single expert writer that he is aware of the parties’ dispute: -
.. a number of [X]’s responses suggest that he has a level of awareness of his mother’s feelings surrounding, and her and [Mr F]’s vigilance over, his safety when in the care of his father. He also appears to have some sense that accepting gifts from his father could potentially be an issue.
…. He understands that a supervisor is required whenever he spends time with his father in case [Mr Wilburn] "does something" or "something happens" or in case he (i.e. [X]) wants to go home early. [X] spontaneously informed the report writer that he has yet to ever want to leave a visit with his father early.[27]
[27] Single Expert Report, paragraphs 164 and 165.
Further:
[X] speculated that his mother and [Mr F] might feel "a little nervous or something" at the prospect of him spending unsupervised time with his father or time in his father's home. He was less sure how he might feel. In response to the report writer inviting [X] to tell her more about this, [X] spoke about his father being someone who made "naughty choices" such that his mother and [Mr F] continue to worry that his father could potentially do something that results in [X] being hurt. [X] then immediately went on to comment that he knows his father is "trying to stop [using]”.[28]
[28] Ibid, paragraph 167.
I accept the single expert’s unchallenged opinion that the ongoing development of [X]’s relationship with the father will require the approval of both the mother and Mr F that the father is both a safe and worthwhile person to have in his life. If the mother is unable to do so, it might compromise [X]’s relationship with both the father and the mother. [29]
[29] Ibid, paragraph 220.
It is uncontested that X has been told by the mother that he is to keep where he lives and attends school a secret from the father. By requiring this of X, it is unchallenged that the mother has:
…unintentionally placed the burden of protecting [X] and their family on [X]’s young shoulders. It also forces [X] to choose one parent over the other, communicates to him that it is okay to lie or hide information and means that he potentially spends considerable emotional energy censoring his conversation with his father and thinking about what he can and cannot say. This could all be additional sources of stress and confusion for [X]. It also risks him becoming embroiled in his parents' conflict or carrying unnecessary guilt if he lets something slip, all of which is obviously not in [X]’s best interests.[30]
[30] Single Expert Report, paragraph 258.
I accept the single expert’s unchallenged opinion that during the interview the father sought to explain and justify many of his behaviours and decisions in relation to events that occurred both during the relationship and subsequent to separation to external factors outside of his control rather than his own behaviours, personality or mental health.
Of concern for the court is the father’s apparent limited insight into the risk of harm for X arising from his conceded drug use. The father did not undertake all drug tests required of him citing the financial burden yet purchased a pet for the sum of $3,000. I accept the single expert’s unchallenged opinion that the father did not demonstrate any insight as to how his past drug use could have potentially compromised his ability to be in tune with and reflect his son’s needs, nor the impact his use had on the confidence of the mother in the father’s parenting capacity. I accept the single expert’s unchallenged opinion that whilst drug use does not inevitably affect parenting capacity;
….the social, legal and financial pressures associated with substance misuse can make it more difficult to parent adequately. It is also worth commenting that cognitive impairment in [illicit substance] use include users tending to make riskier decisions than others and to have more problems with planning. There is also information that suggests [illicit substances] can lead to, or exacerbate existing, mental health problems. If a parent was routinely affected by [an illicit substance] (or alcohol) there could be risks to [X] associated with that parent’s ability to consistently provide a stable and safe environment for [X], maintain household tasks and routines, and sensitively and appropriately respond to [X]’s physical and emotional needs. It could also give rise to safety concerns and risk in relation to driving, inappropriate matters of discipline and/or injury from supervisory neglect. [31]
[31] Single Expert Report, paragraph 240.
The mother raises concerns as to the father’s capacity to provide for X’s needs.
Overall [Ms Quinton] worries that the more time the father spends with [X], the greater risk that the father could implode or self-destruct and the consequences for [X] of witnessing such an event, would be both damaging and frightening. Compounding her concerns is that she harbours doubts that the father has any insight into how his behaviour has adversely impacted her and [X].[32]
[32] Ibid, paragraph 123.
The mother reported to the single expert that some of her concerns may be eased were there to be an independent person undertake a home visit to inspect the father’s home, the father complying with requests for drug tests, his not allowing X to eat junk food or sugary products early in the morning and complying with her requests around gift giving, noting that X “..seems to now expects gifts and presents whenever he sees his father.” [33]
[33] Ibid, paragraph 126.
The father conceded to the single expert that upon X asking the father why he was yelling at the mother he responded, “because she broke my heart.” In cross-examination the father further readily conceded using the word “kidnapping” in a phone call with X and then stated, “I had him taken…It was wrong to express that to him at the time.” In my observations of the father he demonstrated a capacity to deeply reflect on the comments made by him to X, “I was injecting my feelings [onto him]… that is not his burden to bear.” The father explained in cross-examination that since attending the Circle of Security course he has learnt the importance of removing himself from situations when he is emotionally heightened. I am satisfied that the father has in the past made such comments to X and that such comments would be confusing and create an emotional burden for X. I am also satisfied that at the time of making such comments the father was highly emotional, “These are extenuating [circumstances]… I have never been so emotional in my life.” I am confident that the father has had the opportunity to reflect on his wrongdoings in the past and that he is able to readily recognise the impact such comments would have had on X. I am satisfied that the father now has the insight to refrain from making such comments in the future.
The father acknowledged that during the relationship he kept weapons in the house. These items were found by the mother in early 2020 in the garage of the home. The Police were contacted, and they attended the property and removed the items. Whilst the father asserted that these items were safely stored it causes concern that he could not see any risk in storing such items.
Whilst the single expert opines that the father’s capacity to meet X’s needs is less tested as X has not lived with the father for some time and his time subsequent to separation has been restricted and supervised, I accept her unchallenged opinion that: -
·the father has by all accounts provided age-appropriate activities for X during his times with him;
·the father has offered food and affection within the limits of their contact;
·the father has completed a post separation parenting program and the Circle of Security education program;
·all supervised contact reports raise no concerns regarding the father’s presentation with X; and
all of this suggests that, provided that [Mr Wilburn] is not using drugs or alcohol and remains open and willing to seek appropriate support for any stress or mental health or relationship issues he may experience, he is likely capable of providing for X’s needs to a good enough level. [34]
[34] Single Expert Report, paragraph 225.
Through the courses he has undertaken I accept the father’s unchallenged oral evidence that he has learnt: -
·that communication is key;
·a child’s best interests is above all;
·that he must be responsive to X’s emotions;
·to be patient; and
·that children don’t always communicate the way they feel, and so he has learnt to pick up on emotions from body language. Children convey more in the way they behave toward you than what they actually say.
I further accept that subsequent to the release of the single expert report the father has gained some insight in the effect of his behaviours upon X and the mother as demonstrated by his oral evidence that:
·His actions on the day of separation were very selfish and he “dropped the ball” as a father and he feels regret about this.
·This litigation has been part of the consequences of his actions.
·He needs to ensure that he keeps himself emotionally “together” for the sake of X.
·That he needs to take responsibility for his wrongdoing.
·That he has relied on X at times to emotionally support him and if he became emotional in the future, he would get someone to assist him in the care of X and reach out for support.
·That if X was not comfortable in staying overnight with him, he would try and ascertain why and would allow X to call the mother. “I would try and source what was making him uncomfortable and see if we could resolve it” but he would not force X to stay overnight if the issue could not be resolved at that time.
There are no current apprehended domestic violence orders between the parties.
I accept the single expert’s unchallenged opinion that care needs to be taken by the parties and the court that X’s development and progress is not disturbed by: -
·exposure to conflict, family violence or risky parenting;
·or the introduction of unsupervised time, overnight time or block time before X and each of the parties are ready.
When the mother moves it is an agreed position that the parties will live an approximate 2 – 3 hours drive apart.[35]
[35] Single Expert Report, paragraph 252 to 253.
The mother seeks orders that X’s time with the father occur at a contact centre and that the father be responsible for the costs of such service. There is no evidence that the Contact Centres as proposed by the mother (or indeed any contact centre) will provide supervision until X reaches adulthood.
I accept the single expert’s unchallenged opinion that the mother’s heightened sensitivity to issues of risk relating to the father means that anything X reveals about time spent with his father unsupervised could lead to further mistrust and conflict between the parties. This could potentially lead to further legal proceedings and/or the involvement of protection agencies which would be stressful for both X and the parties and would therefore not be in X’s best interests. The mother has to date complied with orders regarding the time X is to spend with the father.
The mother does not seek any findings but simply that it be “noted” as depicting the father’s attitude to the mother that he: -
·kept animals at the property during their relationship despite the mother being allergic; and
·subsequent to separation he retained the motor vehicle registered in the mother’s name.
DISCUSSION AND DISPOSITION
The Proposed Orders to be made by Consent
I am satisfied having regard to the evidence and findings made above that the proposed consent order that the mother have sole parental responsibility for X subject to her advising the father of decisions made is the appropriate order and will be made.
I am satisfied having regard to my findings made above that the orders as proposed by the parties including the Independent Children’s Lawer to be made by consent are in X’s best interests and will be made.
Time with Orders
I must now undertake an assessment of the potential risk of harm to X in the father’s care. This assessment of risk requires the consideration of two elements; the consideration of whether it is likely that some harmful event will occur and then a consideration of the severity of the impact caused by such harmful event: Dieter & Dieter [2007] FamCA 608. I must assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable: M & M (1988) FLC 91-979; [1988] HCA 68. The assessment of unacceptable risk is thus a predictive exercise, postulated from known facts and present circumstances. It is not required to be proven on the balance of probabilities: Isles & Nelissen [2022] FedCFamC1A 97.
If the court identifies that there is an unacceptable risk, it is then necessary to assess whether that risk is able to be sufficiently ameliorated or managed with safeguards: Blinko & Blinko [2015] FamCAFC 146. It is not however for the court to find a solution which will eliminate any chance of serious harm, it is to balance the harm that will follow if the risk is not minimised or removed against a healthy relationship between a parent and a child not being permitted to prosper: Napier & Hepburn (2006) FLC 93-303.
I accept the submissions of the Independent Children’s Lawyer that the specific incidents as set out above all occurred at the time of the breakdown of the parties’ relationship when the parties were clearly going through an emotional and difficult period. The father made admissions adverse to his interests as to his past habits and acknowledged that his behaviours were inappropriate. The father had the foresight to attend upon his doctor and obtain appropriate medical and therapeutic assistance when he felt it was necessary. There is no evidence that the father lives with any mental health issues. I am not satisfied that there are ongoing risks of harm to X in the care of the father arising from mental health issues.
In light of my findings as to the mother’s allegations of family violence I am satisfied that there is a low risk of X being subject to harm in this regard. I am satisfied that there is a risk to X arising from the father’s ability to self-regulate. Such a risk is low as a consequence of the father undertaking the parenting courses.
In light of the father’s non testing for illicit drugs over a continuous period of time there remains some risk that X is at risk of harm in this regard. However, I am satisfied that in the circumstances that such risk is not unacceptable and can be sufficiently ameliorated as:-
·The mother had been aware of the father’s drug use prior to their final separation and left X in his sole care on various occasions. I am satisfied that in those circumstances, where the mother was aware of the father’s drug use, she was confident in the father’s ability to care for X.
·The father’s last drug test result was negative.
·X will be over 9 years of age by the time he moves to spending unsupervised time with the father and is a confident child.
·The single expert clearly opines that some of the risks associated with the father’s use of illicit drugs could be sufficiently ameliorated with orders being made restraining the father from consuming illicit drugs for a period of time prior to and during spending time with X and/or by the presence of another adult who is not affected by drugs or alcohol.
Thus in line with the single expert’s unchallenged opinion, I am satisfied that such risk can be sufficiently ameliorated by X’s time with the father not proceeding to overnight time until the father produces a clean drug test result.
I am therefore not satisfied having regard to my findings made above that permanent supervision of X is required to protect him from harm as sought by the mother. In any event, There is no evidence as to the practical long-term effects on X of such an order, nor is there any evidence as set out above that there is a contact centre available to provide such a service. I cannot make determinations as to X’s best interests in an evidentiary vacuum.
The father proposes Ms E as an appropriate supervisor for his initial time with X. Ms E is currently employed as an educator and I found her to be truthful, and a witness of credit and common sense. She has children of her own and is known to both parties and X. Ms E’s oral evidence is that if any risks were to arise in her supervision of the father’s time with X she would contact the mother and take the appropriate steps to intervene. To her credit Ms E respectfully commented that she would only communicate with the mother if the mother accepted such communication. To their credit, the father and Ms E have maintained a civil relationship despite she and the father’s brother separating some time ago. It is uncontested that during the parties’ relationship Ms E had a good relationship with both parties. There were no submissions made by the mother that Ms E was not an appropriate supervisor. In her oral evidence Ms E gave evidence that she is prepared to supervise time each alternate Saturday even if it is for 5 or 6 hours at a time whilst appreciating that this is a big commitment. Ms E is considered by the court to be an excellent supervisor of the father’s time with X. She is a supervisor that the court could rely on and someone the mother could have confidence in that she would prioritize X’s best interests and protect him from harm.
The orders sought as to the time X is to spend with the father by the Independent Children’s Lawyer and the father accord with the single expert’s recommendations pivoted on the factual findings made by the court. Having regard to my findings I am satisfied that such orders promote X’s best interests and will be made as sought.
It is in X’s best interests that in addition to regular time weekend time occurring with the father on an increasing graduated basis that the be afforded the opportunity to spend time with the father on or around special occasions.
The father only has four weeks annual leave a year and thus does not seek that X spend time with him for half of all school holiday periods, but rather one week each school holiday period.
ANCILLARY ORDERS
The father seeks orders that X have video communication with him via WhatsApp each Tuesday and alternate Thursday between 6:00pm and 6:30pm. The mother sought orders in the same terms in her Amended Response tendered into evidence however oral submissions were made by the mother that such time should occur on Wednesdays and alternate Sundays. There is no evidence to ground the position of either party. No submissions were made at the conclusion of the matter. The father made submissions at the commencement of the hearing that the video communication between the father and X currently occurs on a Tuesday and alternate Thursday and that this regime should remain for the purposes of continuity. The mother submitted that her proposal is in line with the recommendations of the single expert notwithstanding that there is no reasoning provided by the single expert as to the selection of Wednesday and Sunday as opposed to Tuesday and Thursday. The mother herself in cross-examination conceded that “those phone calls are in our routine” and “He’s [X] is used to those times. He knows that is when he talks with dad.” I am satisfied that it is in X’s best interest that he has continuity in his routine of speaking with the father via video call on Tuesday and alternate Thursdays from 6:00pm to 6:30pm and orders will be made accordingly.
The father seeks orders that he provide 7 days’ notice to the mother of his intention to attend X’s school events. The mother seeks that there should be a notice period of 14 days. Again, these is no evidence before me to ground the position of either parties. No submissions were made by either party in the course of their final submissions. The mother submitted at the commencement of the hearing that her position of requiring 14 days’ notice arises from the mother’s stress in dealing with the father and that she requires more time to implement strategies to cope with such stress. The father submitted that there may be situations in which he is not notified about a school event prior to 14 days and thus he may not be in a position to provide the mother with a full 14 days’ notice. I accept the father’s submission that this is a possibility. I do not accept the mother’s submission that she would require 14 days to make arrangements in the event the father was to attend a school event. I am satisfied that 7 days notice is an appropriate period of notice to be provided to the mother.
The mother seeks an order restraining the father from attending within 100 metres of where the mother works and lives. There is no evidence that the father breached an Apprehended Domestic Violence Order made for her protection for a period of two years. I am not satisfied that there is evidence to ground a further injunctive order being made.
THE COSTS OF THE INDEPENDENT CHILDREN’S LAWYER
At the conclusion of the final hearing the Independent Children’s Lawyer made an application for costs as she is obliged to do so. The father currently earns an annual income of $65,000. The mothers earns an annual income of $105,000 however she is currently on maternity leave and her evidence was that she is not being paid her full income.
The general rule in s 117(1) of the Family Law Act 1975 (Cth) (“the Act”) that each party bear their own costs does not apply to cost applications involving other persons or the Independent Children’s Lawyer, even though an Independent Children’s Lawyer is somewhat analogous to a party: see In the Marriage of McDonald (1994) FLC 92-508 and Gahen & Gahen (No 2) [2013] FamCA 936.
The court must not make an order as to costs in favour of an Independent Children’s Lawyer if the party has received legal aid in the proceedings, or if the court considers the party “would suffer financial hardship” as a result of an order to bear a proportion of the Independent Children’s Lawyer’s costs.
I am satisfied having regard to the parties’ income and current circumstances that an order for the costs of the Independent Children’s Lawyer would cause financial hardship to both parties and I will not make such an order.
CONCLUSION
Having regard to all of the above I am satisfied that the orders as sought by the Independent Children’s Lawyer and consented to by the father are in X’s best interests and will be made accordingly.
I certify that the preceding one hundred and twenty-eight (128) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 23 January 2024
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