Woodard and Oddie

FEDERAL CIRCUIT COURT OF AUSTRALIA

WOODARD & ODDIE

[2018] FCCA 572

Catchwords:
FAMILY LAW – Parenting – best interests of child – orders made.

Legislation:

Family Law Act1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA

Applicant:

MR ODDIE

Respondent:

MS WOODARD

File Number:

PAC 3238 of 2014

Judgment of:

Judge Newbrun

Hearing dates:

7, 8, 16 February 2018

Date of Last Submission:

16 February 2018

Delivered at:

Parramatta

Delivered on:

23 March 2018

REPRESENTATION

Counsel for the Applicant:

Mr Sperling

Solicitors for the Applicant:

Thurlows Family Lawyers

The Respondent appeared in person

ORDERS

The parties shall have equal shared parental responsibility for the child X, born (omitted) 2013.
Commencing on the Saturday following the making of these orders, and up until 1 February 2019, the child shall spend time with the father, for one day each week, on each alternating Saturday and Sunday, from 10 AM to 6 PM.
From 1 February 2019, the child shall spend time with the father each alternating week from Saturday 10 AM to Sunday 5 PM.
From 1 February 2020, the child shall spend time with the father each alternating week from Friday 6 PM to Sunday 5 PM.
The child shall spend such further time with the father in accordance with the agreement of the parties, with the parties’ agreement to be communicated through text message communication.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3238 of 2014

MS WOODARD

Applicant

And

MR ODDIE

Respondent

REASONS FOR JUDGMENT

Introduction

This was the final hearing of competing parenting proposals between Ms Woodard (‘the mother’) and Mr Oddie (‘the father’) in relation to the child X born (omitted) 2013 (‘the child’).
Final Orders agreed on 16 February 2017 provided that the child shall live with the mother.
The issues for determination at the final hearing related to, in particular, parental responsibility for the child, and time to be spent by the child with the father.

The parties’ proposals

The mother sought Orders as set out in Exhibit A, being her Minute of Proposed Orders. Inter alia, she sought an Order for sole parental responsibility for the child, and that the child spend time with the father on a graduating day time basis, with the child to only begin to spend overnight time with the father from the commencement of school in 2021 (when the child enters Year 2).
The father initially sought Orders as referred to in Annexure A of his Affidavit filed 24 January 2018, which sought to reflect the recommendations of the Family Report writer in her Family Report of 23 March 2016. Then, during the course of the first day of final hearing, he amended his proposed Orders in relation to spending time with the child by seeking an order that he spend each alternate weekend from Friday 6 PM to Sunday 5 PM with the child, together with such other times as may be agreed between the parties.
During the course of final submissions, the father sought parenting Orders, in the alternate, should his primary parenting proposals not be accepted by the Court, that he spend time with the child on either Saturday or Sunday of each week, from 10 AM to 6 PM, for six months, and then in alternate weeks from Friday 6 PM to Sunday 6 PM.

Final hearing

The final hearing proceeded on 7 and 8 February 2018, with final submissions on 16 February 2018.
The Applicant mother relied on the following documents at the final hearing:
a)Affidavit of Ms Woodard filed 19 January 2018;
b)Affidavit of Mr A filed 2 February 2017.
The Respondent father relied on the following documents:
a)Affidavit of Mr Oddie filed 31 January 2017;
b)Affidavit of Mr Oddie filed 19 July 2017.
c)Affidavit of Mr Oddie filed 24 January 2018;
The following exhibits were relied upon:
a)Mother’s proposed orders (Exhibit A);
b)Affidavit of Father filed 20 April 2017 (Exhibit B);
c)(omitted) Bank Statements and Child Support documents (Exhibit C);
d)Family report of Dr J dated 23 March 2016 (Exhibit D);
e)Child support statements (Exhibit E);
f)Photographs of child care centre (Exhibit F);
g)Written submissions of the mother (Exhibit G).

Evidence

The mother was born (omitted) 1987 in (country omitted). The father was born (omitted) 1955 in (country omitted).
The mother migrated to Australia in about 2008 with other members of her family.
The parties met in early 2013 and had a casual relationship for a relatively short period of time. During this period the father would often become aggressive towards the mother after drinking alcohol.
In about May 2013 the parties had an argument and the father began yelling and screaming at the mother and then proceeded to push her against the wall. After this incident the mother decided not to see the father.
The child was born on (omitted) 2013.
On the evening of the child’s birth, the father arrived at the mother’s residence smelling strongly of alcohol and he appeared to the mother to be highly intoxicated.
Immediately after the child’s birth, the father refused to be registered as the father for the child’s birth certificate. He told the mother at this time that he did not want the responsibility of the child. Then in about (omitted) 2015 the father agreed to sign the birth certificate application, on the condition that the child’s surname be listed as “Oddie”. The mother agreed to put it on the application as she wanted the child to know that he had a father.
The mother has been the child’s full-time and primary carer from birth to date.
Initially, the parties established an arrangement whereby the father could visit the child every Tuesday and Sunday at the mother’s residence. However, the father was not consistent in following this arrangement and would often tell the mother that he was busy at work. These visits were only up to about twenty minutes on each occasion. The father provided no financial support to assist in the child’s care at this time. The mother was entirely responsible for providing for the child financially. The father’s contact with the child continued in this manner until early June 2014.
In about (omitted) 2014 the mother decided to go to (country omitted) to look for her parents, there being civil unrest in the region. The mother arranged for her close friend and her daughter to look after the child while she was gone. The mother told the father that she was going to (country omitted) for three weeks and she informed him of the child’s care arrangements.
During the mother’s visit to (country omitted) she married Mr A, born (omitted) 1980 in (country omitted).
The mother returned to Australia in (omitted) 2014. She ascertained that the father had taken the child into his care from the mother’s close friend in her absence. The father refused to return the child to the mother’s care. At about this time the father told the mother that she was never going to get a chance to see the child if she was married to someone. He told her that he did not want a stepfather for the child. During this period when the child was retained by the father, the mother was emotionally distressed.
The mother attended a police station several times with a view to recovering the child, without success. Eventually she commenced proceedings. Initially in about August 2014 the mother agreed to Consent Orders on an interim basis to allow the child to remain in the father’s care and for the mother to spend time with him.
In about mid-August 2014 the mother saw the child. The mother took the child to a doctor. The doctor informed the mother that the child had a respiratory tract infection. The doctor stated that at the consultation the child was active, well hydrated and had no respiratory distress.
In late August 2014 the father attended the mother’s residence with the child in accordance with the Consent Orders. The mother smelt alcohol on the father’s breath. He was behaving aggressively towards the mother. The mother was holding the child and the father attempted to snatch the child out of her arms. The mother refused to give the child to the father as he appeared to be intoxicated. The mother refused to give the child to the father as she was concerned that the father would drive home with the child whilst intoxicated. The father became angry with the mother and pushed her onto the floor whilst the mother was holding the child. The mother telephoned the police.
On 28 August 2014 the police informed the mother that an Apprehended Violence Order had been taken out. The next day in the (omitted) Local Court the father agreed to final Apprehended Domestic Violence Orders for a period of six months, with the protected person being the mother.
In late September 2014 Orders of this Court were made, inter alia, providing for the child to live with the mother and spend time with the father every alternate week from 5 PM Friday to 5 PM Sunday. An Order was made for equal shared parental responsibility.
On 26 September 2014 the father called the mother to inform her that the child was sick and that he would take the child to the hospital at (omitted). Upon returning to Sydney, the mother took the child to her General Practitioner, on whose recommendation the mother took the child to the (omitted) Hospital. The hospital staff examined the child and found that the child was, inter alia, febrile at 38.2 degrees Celsius. The child was comfortable during the admission. He was discharged upon his oral feeding being adequate.
Later that day the mother called the father to inform him about the child’s situation.
On 3 October 2014, the father’s solicitors wrote to the mother’s solicitors stating, inter alia, that they had been advised by the father that the mother was going to refuse to hand over the child that afternoon. They stated:
This is on top of a series of breaches of the Orders so far.
It would appear that she is in total denial of the existence of the Orders.
We were wondering if you could have a word.
It would be a shame if Contravention proceedings should commence immediately.
On 7 October 2014 the mother’s solicitors wrote to the father’s solicitors stating, inter alia, that the mother:
… states adamantly that both parties have behaved politely and in a restrained manner towards each other both at the changeover and by phone in the past few days …
The letter referred to upcoming overnight time to be spent by the child with the father. The father did spend time with the child overnight from 10 October 2014 to 12 October 2014.
On the child’s birthday in (omitted) 2014 the father arrived to spend time with the child. When the father arrived the mother noticed that the father appeared intoxicated.
From about late November 2014 until about early 2015 the father spent no time with the child. When time resumed the father’s visits with the child were irregular and not in accordance with Court Orders.
In about (omitted) 2016 the mother’s husband arrived in Australia and he now lives with the child and the mother.
In August 2016 the parties attended mediation. After mediation the mother attended the father’s home so that he could spend time with the child. The mother noticed that he was sharing the townhouse with about seven people. This residence of the father was in (omitted).
On 13 September 2016, the father’s solicitors wrote to the mother’s solicitors stating, inter alia:
Notwithstanding our discussions previously, [the mother] has failed to provide the child to our client (the father). Our client [the father] has had no contact with the child since 18 August 2016. Our client (the father) instructs that he has sent a number of requests to spend time with the child to no avail. Our client (the father) proposes to spend time with the child on the October long weekend with pick up on 1 October 2016 at 10 AM to Sunday 4 PM at a chosen location by the mother. This proposal allows for sufficient notice. Further, our client has not been provided with any information regarding the child’s well-being. Please seek instructions. Please contact our office as a matter of urgency for this matter.
Following 11 October 2016, the father had no contact with the child until some time in the first half of 2017 but after the Court’s orders of 16 February 2017 (see below).
On about 13 December 2016 the father sent the mother a text message stating that he was removing himself from the life of the child for the rest of his natural life.
On 6 January 2017 the child was admitted to hospital as he was sick. The mother attempted to contact the father by text message but received no response.
On (omitted) 2017 the father was assaulted by Aboriginal youths and suffered injury. The father ceased (employment omitted) after his injury and only resumed working in the second half of 2017 (by about late October 2017 he was able to work a couple of days per week; exhibit E).
Court orders were made on 16 February 2017, inter alia, providing for the father to see the child each Tuesday from 10 AM to 6 PM, and otherwise as agreed between the parties. The father did not spend regular time with the child pursuant to these orders. The Court finds that the father probably did have at least a few isolated daytime visits with the child after these Orders were made and in the first half of 2017.
In this context, the Court, inter alia, notes the father’s Affidavit filed 17 July 2017 stating, inter alia:
8. My son has started calling me UNCLE now and . The more reason why I need to have regular contact with him. …
9. [The child] has a sister named A who during [the child’s] short stay with us and the few visits were closely bonded.
…
12. I no longer (employment omitted) since my injury and therefore have ample days and time off to see [the child], to start him with his sporting activity and (hobby omitted) and also to help him with his basics and for him to start knowing me as a father.
13. I believe I have a natural right to see my son on regular bases and no time like now. There is absolutely no reasons why [the mother] is avoiding me contact with my son. I believe I have a right to natural justice.
The Affidavit of the father filed 19 July 2017 also stated that on 17 July 2017 he “moved to the family home in (omitted) with my partner of more than 25 years of whom I have a fifteen year old daughter A”.
The father spent time with the child on 13 November 2017, 24 December 2007 and 26 December 2017. On the latter occasion the child spent overnight time with the father and the husband’s daughter A, aged 15 years. The mother allowed the child to spend overnight time as A was with the child and the mother trusted that she would look after the child.
Since 26 December 2017 there has been at least one occasion when the child spent time with the father. For example, there was a brief visit (one to two hours) on about 30 January 2018 when the mother inspected the father’s present rented premises at (omitted).
The mother is currently studying (omitted) at (omitted) Sydney. She usually attends classes two to three times a week. She holds a casual position as a (occupation omitted) at (employer omitted). The mother has made arrangements with Ms H, a family friend and her husband, to care for the child while she is at work or university.
The mother’s husband attests to having witnessed the mother raise and care for the child. He states that the mother is a great mother and she bathes, cleans, feeds and cares for the child. The mother’s husband assists the mother in the care of the child. The mother’s husband has only witnessed the father see the child once since he arrived in Australia in about May 2016, at the time of swearing his Affidavit filed 2 February 2017.
The mother has enrolled the child in a formal preschool at (omitted) and is awaiting a commencement date; the preschool is the (omitted) Pre-School at (omitted). The mother informed the father of this enrolment in about November 2017. The child presently attends a family day care facility at (omitted).
The father presently (employment omitted) on Mondays, Wednesdays and Thursdays. However, in March 2018 he is due to re-commence a course to become a (occupation omitted) (having started this course in (omitted) 2016, and having ceased to attend the course following his injury in (omitted) 2017) and proposes to attend this course, anticipated to finish in December 2018, Monday to Friday from 9 AM to 5 PM.
The father recently moved into rented premises at (omitted). His first cousin, aged 63 years, resides in a granny flat in those rented premises. There are three bedrooms apart from the granny flat. He pays rental of $580. The lease is in his name and he has entered into a lease in early January 2018. It is a six month lease. His daughter A comes to stay with him every second weekend.
The father confirmed the factual assertions contained in paragraph 5 of his Affidavit of 12 September 2014 as correct; namely, that he had stated in that Affidavit, paragraph 5, inter alia, that over the years he had been a person who from time to time enjoyed a social drink, that he had obtained his New South Wales driver’s licence and (omitted) licence in 1985 and had regularly (employment omitted) since that time, and that he had been subjected to random breath testing up to 300 times over the years he (employment omitted).

Family consultant

The Family Report writer was Dr J, and her Family Report is dated 23 March 2016. She interviewed the parties on 10 March 2016.
In the Family Report, the Family Report writer noted that the current arrangements for the child were that the child live with the mother and spend time with the father every second weekend from Friday until Sunday.
The mother told the Family Report writer that she and the father could communicate about the child. However, she stated that joint decision-making could be difficult because the father often wanted to check the facts that the mother gave him.
The father told the Family Report writer that he had difficulty in communication with the mother.
The father told the Family Report writer that the mother appeared to be a good mother.
The father told the Family Report writer that child support came out of his wages, and in addition he paid for the child’s day care and any equipment the child needed.
The Family Report writer observed the child to interact positively with both parents in the observation sessions.
The Family Report writer provided an Evaluation.
She noted the positive attachment of the child with both parents. The father impressed the Family Report writer as child focused, empathic with the child, mature minded and a responsible parent strongly committed to the child’s welfare.
The Family Report writer commented that there appeared to be little conflict or hostility between the parents. She noted that the mother’s main concern was the father’s tendency to change his mind about arrangements. She stated that this was probably to fit in with the father’s (occupation omitted) shifts. She observed that the father would like to be able to make flexible arrangements at short notice. However, she observed that both the child and the mother also needed predictability in the parenting arrangements.
The Family Report writer stated that there appeared to be nothing in the relationship or parenting history that would disqualify the father from sharing parental responsibility of the child with the mother.
Under the heading “Recommendations”, the Family Report writer recommended that:
a)There be equal shared parental responsibility;
b)X live with his mother;
c)Until he starts school, X spend one day a week with his father;
d)X spend other times with his father by agreement between the parents;
e)The days that X spends with his father not be his scheduled days at the child care centre (currently Monday, Tuesday and Wednesday);
f)Until X is three and a half years of age, his half-sister, A, be present when X stays overnight with his father;
g)When X attains three and a half years of age, he may stay overnight with his father in his father’s sole care;
h)When X starts school, he spend every second weekend from Friday after school until Sunday evening with the father, as well as some consecutive overnights during the school holidays;
i)The mother do all things to enable the father to receive copies of X’s preschool and school reports and notices, including information about special preschool and school events;
j)X’s passport may be held by his mother, but overseas travel require the permission of both parents.

The Family Report writer gave oral evidence, by telephone, on two separate consecutive days. By the second occasion, she had had an opportunity to peruse the father’s Affidavit filed 31 January 2017; she had not read this Affidavit on the first occasion that she gave oral evidence.
The Family Report writer confirmed having read updating Affidavits since the preparation of her Family Report.
The Family Report writer was cross-examined by the parties.
The Family Report writer stated that if the Court accepted that the child had spent minimal time with the father over the last twelve months, then her recommendations contained in her Family Report, relating to the child spending time with the father, would change.
The Family Report writer stated that, assuming the child had spent such minimal time with the father over the preceding twelve months, then the child would not have secured the father as a secure attachment figure. There would need to be a period of re-acquaintance between the child and the father to establish the father as a secure base for the child. There would need to be a graduated reintroduction of the child to the father.
In this context, the Family Report writer supported the child presently spending regular day time time with the father, to the extent of at least once per week, but not yet overnight time.
As to when the child should begin to spend overnight time with the father, the Family Report writer noted that the child had spent overnight time with the father in the past. Overnight time should start after the child had experienced a graduated and consistent time with the father, such that the mother felt confident that the child could cope with overnight time. She opined that the proposed commencement of overnight time from the commencement of school in 2021 (when the child enters Year 2) was too far off.
She was sure that the child could cope with overnight time from the commencement of school in 2020 (when the child enters Year 1), but such overnight time could possibly occur earlier, during the child’s kindergarten schooling.In this latter respect, she would want to see, inter alia, a regular pattern of the child spending time with the father and a lack of conflict between the parents.
As to the extent of overnight time, once it commenced, she would recommend initially one overnight occasion. Then at some stage, if such overnight time was going well, such time could proceed to two consecutive overnight periods. By the commencement of schooling in Year 2, she would anticipate that the child would be spending two consecutive overnights with the father.
At the resumed hearing on 8 February 2018, the Family Report writer stated that the child, having commenced kindergarten in 2019, could spend overnight time with the father on one occasion each fortnight (at least initially), provided there had been a consistent pattern in 2018 of the child spending weekly daytime time with the father. In this latter context, the Family Report writer stated that she would like to see a regular pattern of time spent by the father with the child presently, such that the child could rely on the father being there and the father could become a secure attachment for the child, so that the child could spend overnight time with the father in 2019.
The Family Report writer stated that she did not hold a strong view as to when the child could begin to spend two consecutive overnights with the father, noting that a conservative approach would be to commence such time at the beginning of 2020. She stated that the commencement of such two consecutive overnights with the father would depend on how the one overnight occasion was going, including the regularity and consistency of the child’s time with the father and stability of the father’s residence.
The Family Report writer stated that she understood that if the child spent time with the father each Saturday during the daytime in 2018, the child would not be spending such time on Saturday with the mother. However, it would be less confusing for the child if one weekend day was spent with the father.
As to parental responsibility, the Family Report writer was not prepared to make a recommendation, being of the view that she needed more information relating to the parties’ present relationship.
The Family Report writer, when cross-examined by the father, stated that the father’s concerns as to the child still not being toilet trained and unable to speak properly could be addressed by the child beginning to spend each Tuesday and Friday with the father, as proposed by the mother (in Exhibit A), and the father helping the child in this context.
The Family Report writer stated that it would be helpful for the child’s development to attend preschool for six months this year before beginning kindergarten at the start of 2019. Should the child attend preschool in 2018 for three days each week, and spend two separate days each week with the father, that would make a significant difference to the child’s development, according to the Family Report writer.
The Family Report writer stated that she did not doubt that the child was attached to the father and that the child loved him. However, she emphasised that the father had to be regular and reliable for the child. The child had to know that the father would come and spend time with him.
The Court accepts the evidence of the Family Report writer, including her recommendations.

Relevant legal principles

Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
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: section 60CA of the Act.
To determine what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3) of section 60CC. Firstly, the Court must consider the primary considerations, being:
a)(2)(a) The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)(2)(b) The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
In applying these considerations, as per section 60CC(2A), greater weight must be given to the “need to protect” the child than to the benefit to the child of a meaningful relationship with the parents.
When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an Order that the child spends substantial and significant time (as defined in section 65DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such Orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a) - the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration

The child has a meaningful relationship with the mother and would benefit from a continuance of that relationship.
The child had a meaningful relationship with the father at the time of the Family Report interviews in March 2016. However, from about October 2016 and during 2017, the father did not spend regular time with the child. It is likely that, as a result of this absence of regular time spent between the child and the father, the child’s former secure attachment to the father was compromised to some not insignificant extent. In particular the Court notes the tender age of the child during this period.
The child spent one overnight occasion with the father in late December 2017 (the Court interpolates here that the father’s daughter A was present on this overnight visit). The father saw the child for a brief visit in late January 2018 at his residence at (omitted), with the mother being present.
It was clear to the Family Report writer at the time of her observations of the child with the father in March 2016 that the child enjoyed a positive attachment to the father.
The child would benefit from the re-establishment of his former meaningful relationship with the father, subject to the child not being exposed to an unacceptable risk of physical or psychological harm when spending time with the father.
The child’s former meaningful relationship with the father should be able to be re-established in a timely fashion if he spends time with the father, on a graduating basis, each week on an alternating Saturday or Sunday, from 10 AM to 6 PM; and then, commencing at the beginning of school in 2019, the child spends time with the father each alternating week from Saturday 10AM to Sunday 5 PM; and from 1 February 2020, the child spends time with the father each alternate week from Friday 6 PM to Sunday 5 PM. In these circumstances, the child’s meaningful relationship with the mother should not be detrimentally affected.
The Court is of the view that the mother’s proposed Orders in Exhibit A, relating to the commencement of overnight time at the beginning of school in 2021, are overly cautious, and would not promote the enhancement of the child’s relationship with the father in a timely fashion.
The Court gives significant weight to this meaningful relationship primary consideration.

Subsection (2b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

The Court is satisfied that the father has refrained from drinking alcohol excessively for about the last three years.
The Court observes that the Family Report writer, in her evaluation of the parties, opined that there were no safety concerns for the child in the father’s care. The Court is satisfied that the father’s present living arrangements at (omitted) are satisfactory.
As to the historical instances of the child being unwell in the father’s care in August and September 2014, the Court notes that the child was aged about ten months at this time. In relation to the August 2014 instance, the child was diagnosed by the General Practitioner with a respiratory tract infection. In relation to the September 2014 instance, the Court observes that prior to the mother admitting the child to the (omitted) Hospital, the father had on the previous evening taken the child to (omitted) Hospital due to fever, and the child was discharged. The Court is satisfied, on the whole of the evidence before the Court, that there is no significant risk of the child suffering physical neglect in spending unsupervised time with the father.
The Court refers to the instances of family violence in May 2013 and August 2014 involving the father pushing the mother, the latter instance involving the child. Whilst this conduct was reprehensible on the part of the father, the Court is satisfied that there is not a significant risk that such conduct will be repeated by him, in particular noting the father’s abstinence from excessive alcohol consumption for a considerable time.
There is no need to protect the child from the risk of neglect, abuse or family violence in spending unsupervised time with the father.

Section 60CC(3) - additional considerations

(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

The child is too young to express a relevant view.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

The Court refers to the meaningful relationship primary consideration above. The child retains a positive relationship with the father’s daughter A. He appears to have a positive relationship with the mother’s new partner.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

The mother has taken such opportunities.
The father has also taken such opportunities, subject to his failure, in particular, to spend regular time with the child from about 11 October 2016 and in 2017 (noting that the interim Orders of 16 February 2017 provided, inter alia, that the child spend time with the father each Tuesday from 10 AM to 6 PM, with the father to collect the child from his child care facility at (omitted)).
In this latter context, however, the Court takes into account the fact that in about mid-September 2016 the father’s then solicitors were communicating by letter with the mother’s solicitors, inter alia, requesting that the child spend time with the father. It also takes into account the injuries suffered by the father as a result of the serious assault upon him in (omitted) 2017 (see Annexure A to Exhibit B) and his inability to drive a motor vehicle for a significant period (noting that at the time of the interim Orders of 16 February 2017, the father was residing in (omitted), with the child’s child care facility being at (omitted)).

(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

The mother has fulfilled such obligations.
The father has paid child support (both formally to the Child Support Agency and informally to the mother) albeit, it would appear inconsistently, post separation to date. Following the father’s injuries suffered in (omitted) 2017 he paid less child support. He has purchased items for the child intermittently, including furniture items.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

The Court refers to its discussion above under the meaningful relationship primary consideration.

(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

The mother presently resides with the child and her new partner at (omitted). The father is currently residing at (omitted).

(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

The mother has such capacities.
In relation to the father, the Court refers to its discussion above under the meaningful relationship and need to protect primary considerations. It is apparent that the child’s exposure to the father’s past family violence has not afforded the child emotional wellbeing and safety. Further, the father’s failure to spend regular time with the child has, inter alia, not afforded the child emotional security in terms of his positive attachment to the father. Otherwise, it would appear the father has such capacities.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

The Court refers to its discussion above under the need to protect primary consideration in relation to the father.

(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right

Not applicable.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

The mother’s attitude to the child and to the responsibilities of parenthood has been appropriate. As to the father, the Court refers to its discussion above under the primary considerations and family violence additional consideration. Further, the father’s actions in relation to the mother’s request to have the child returned to her following her return from (country omitted) in (omitted) 2014, were not child focused.

(j) Any family violence involving the child or a member of the child's family

The Court refers to its discussion above under the need to protect primary consideration.

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter.

The Court refers to the father having previously been the subject of an Apprehended Domestic Violence Order (final order made on 29 August 2014) for the mother’s protection.

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

Should the Court make parenting Orders, as discussed above under the meaningful relationship primary consideration, such Orders would be least likely to lead to the institution of further proceedings in relation to the child, as compared to the mother’s proposed Orders.

(m) Any other fact or circumstance that the court thinks is relevant

Not applicable.

Parental responsibility

The father perpetrated family violence against the mother during the relationship, so the presumption of equal shared parental responsibility does not apply.
Nevertheless, the Court is of the view that it will be in the best interests of the child for the parties to retain, and have, equal shared parental responsibility for him.
In the Family Report writer’s evaluation, in her Family Report, she stated that the father impressed as a mature minded and responsible parent who is strongly committed to the child’s welfare. The father also impressed this Court as a parent still strongly committed to the child’s welfare; for example, he has concerns in relation to the child’s speech, integration within Australian society and attendance at preschool, and wishes for the child to participate in sport. He also impressed the Court as genuinely willing to communicate cooperatively with the mother in relation to the child.
The Court is of the view that the parties should be able to sufficiently communicate with each other, without significant conflict, so as to be able to reach agreement in a timely fashion in relation to major long-term issues affecting the child.

It is not without relevance in this context that at the time of the Family Report writer’s interview with the parties in March 2016, the mother told the Family Report writer that she and the father could communicate about the child. Although the father told the Family Report writer that he had some difficulty in communicating with the mother in relation to the child, the father did proceed to state to the Family Report writer, in this context, that the mother appeared to be a good mother, that he had no wish to be in a hostile relationship with her, and that he was prepared to compromise for the child’s welfare.
In this context, the Court has not overlooked the fact that since March 2016, the parties have, inter alia, experienced difficulties in their co-parenting relationship, including their involvement in these contested proceedings, particularly in the context of the child spending time with the father.
In about November 2017 the parties discussed the child’s enrolment at a preschool in (omitted). In January 2018 they discussed the child attending a private or (omitted) school in 2019.
To the mother’s credit, and also of relevance in the context of the parties’ ability to communicate with each other relating to the child, she has permitted (as recently as 26 December 2017) the child to spend an overnight visit with the father, albeit in the presence of the father’s daughter A. The mother had stated that the father had returned the child to her care the next day.

Summary

The Court is of the view that it will be in the best interests of the child to make final parenting Orders as follows:
(1)The parties shall have equal shared parental responsibility for the child X, born (omitted) 2013.
(2)Commencing on the Saturday following the making of these orders, and up until 1 February 2019, the child shall spend time with the father, for one day each week, on each alternating Saturday and Sunday, from 10 AM to 6 PM.
(3)From 1 February 2019, the child shall spend time with the father each alternating week from Saturday 10AM to Sunday 5 PM.
(4)From 1 February 2020, the child shall spend time with the father each alternating week from Friday 6 PM to Sunday 5 PM.
(5)The child shall spend such further time with the father in accordance with the agreement of the parties, with the parties’ agreement to be communicated through text message communication.

I certify that the preceding one hundred and twenty nine (129) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 23 March 2018

[2018] FCCA 572

23 March 2018

Key Legal Topics

Areas of Law

Family Law