Changed Circumstances gets Dad Visits after previous Sole Parental Responsibility Order gave no Physical Contact

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Past Changed Man look to Future with Child - DIY Family Law Australia

 

 

Court found following changes in circumstances to vary the previous Order made to now allow the Father Supervised Time

  • Positive conduct by the father, stability and lawfulness in the father during his imprisonment and since his release; and
  • Fresh evidence, being the views of a child assessed as having the maturity to express them. Those views being a strongly held wish to spend time with the father.

The Child was a 10 year old girl and her wishes were taken into account.

Court had previously made Orders for:

  • The Mother having Sole Parental Responsibility;
  • The Child live with the Mother;
  • The Father have communication with the Child, but not to have any face to face time, no physical time at all.




NOTE:  This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties.  

Saldo & Tindall [2016] FamCA 22 (27 January 2016)

Last Updated: 8 February 2016

FAMILY COURT OF AUSTRALIA

SALDO & TINDALL

FAMILY LAW – PRACTICE & PROCEDURE – Where final parenting orders were made in September 2012, which provided for there to be communication but no face-to-face contact between the child and the father following the father pleading guilty to assaults on the mother – Where the father filed an application to re-open the parenting issues – Where the mother is opposed to such application – Where there is fresh evidence sufficient to justify a reconsideration of parenting issues

FAMILY LAW – CHILDREN – Where the current orders in relation to parental responsibility and residence are unchallenged – Where the father’s application is for time and communication only – Best Interests – Where there is a benefit to the child in having a meaningful relationship with the father – Where there is no particular evidence of the mother’s assertion that hers and the child’s health and safety are at risk if there is direct face-to-face contact between the child and the father – Where considerable weight is given to the views of the child that she would like to see the father – Where the effect on the child of an order for her to spend time with the father is likely to be a positive one – Where the father has maintained his commitment to the child – Where the child has not seen the father since August 2010 and she holds some concerns about time with the father – Where in those circumstances, supervised time with the father in short periods for the first six months will allow a slow start to face-to-face time together – Child to spend supervised time with the father at a contact centre for a period of 12 months on a graduating basis, and thereafter on a regular supervised basis outside a contact centre – Where there is a continuing need for supervision until the parties are able to agree or a further application is made

Marsden & Winch[2009] FamCAFC 152(2009) 42 Fam LR 1
Morton & Berry (2014) FLC93-613
Tindall & Saldo[2012] FamCA 1156
Tindall & Saldo[2014] FamCA 1036
Tindall & Saldo [2014] FamCA 1061
Tindall & Saldo [2015] FamCA 1029
APPLICANT:
Ms Saldo
RESPONDENT:
Mr Tindall
FILE NUMBER:
NCC
3176
of
2008
DATE DELIVERED:
27 January 2016
PLACE DELIVERED:
Newcastle
PLACE HEARD:
Newcastle
JUDGMENT OF:
Cleary J
HEARING DATE:
26-27 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:
Mr Boyd
SOLICITOR FOR THE APPLICANT:
Fielden & Associates
COUNSEL FOR THE RESPONDENT:
Mr Kelly
SOLICITOR FOR THE RESPONDENT:
Derham Houston


ORDERS

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(1) That further to the Orders of 6 September 2012, the child shall spend time with the father, supervised [and failing agreement otherwise supervised at G Children’s Contact Service ("the Contact Centre”)] as follows:

    (a) For a period of six months, on one occasion each calendar month for a period of two hours, commencing March 2016;
    (b) Thereafter, for a period of six months, on one day of each alternate weekend, for the maximum period available in the Contact Centre, and in any event, for not less than two hours;
    (c) On Father’s Day 2016; and
    (d) Thereafter:
    1. Each alternate weekend on Sunday, unless otherwise agreed, supervised by a supervisor from a service which facilitates time away from a Contact Centre [a[and failing agreement otherwise, D Service ("the Supervision Service”)]from 9:00 am to 5:00 pm on each occasion;
    2. On Father’s Day each year from 9:00 am to 5:00 pm; and
    3. On Boxing Day commencing in 2017 and each year thereafter, from 9:00 am to 5:00 pm.

(2) That for the purpose of Order 1(d) herein the father may have one or more family member(s) accompany him, subject to the advice of the Supervision Service for each occasion.
(3) That each party shall forthwith do all that is required to access use of the Contact Centre and Supervision Service, including but not limited to, completing intake documents.
(4) That the father shall be responsible for the cost of supervision.
(5) That in addition to letters, cards and gifts, the father may send to the child photographs of himself and members of his extended family, including his partner.
(6) That the mother arrange for the child to attend, within 28 days of the date of these Orders, at a mutually convenient time, on the Senior Family Consultant, in order for the child to have these Orders explained to her.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 3176 of 2008

Ms Saldo

Applicant

And

Mr Tindall

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

  1. This application, filed on 4 April 2014, is for time and communication between the applicant father and the only child of the parties, a girl aged almost 10 years.
  2. The father is aged 38; the respondent mother is aged 34.
  3. Their relationship began in 1998, and was turbulent and at times violent.
  4. The child was born in 2006.
  5. The relationship of the parties broke down on a final basis in November 2008.
  6. Soon after, in December 2008, the mother commenced proceedings with an application for a Recovery Order. A complex history in this Court (including the Full Court of the Family Court) and in State courts has since unfolded.
  7. Post-separation the child lived with the mother and spent time with the father by arrangement and then pursuant to interim orders made by consent.
  8. During 2009 the father was charged with various criminal offences said to have occurred during the course of the parties’ 10 year relationship. The mother was the victim of the offences and on one occasion the child was said to have been involved.
  9. On 4 August 2010 a criminal trial began in the District Court. The mother was cross-examined. The father changed his plea to Not Guilty in respect of certain charges. Other charges, including an alleged sexual assault on the mother, were not then pursued by the Crown.
  10. Subsequently, the mother became unwilling to comply to any extent with parenting orders previously made and ceased doing so. Contravention applications and related appeals followed. Penalties for contravention were ultimately set aside by the Full Court of this Court in January 2015.[1]
  11. The child has not seen the father since August 2010; she was then aged four years and four months.
  12. For reasons relating to the father’s health, the criminal proceedings went over for sentencing to 19 July 2011. The father was sentenced to five years, with a non-parole period of two years and six months. Also at that time, an apprehended violence order was made for the protection of the mother for a period of five years (expiring July 2016).[2]
  13. The father served the sentence.
  14. In July 2012 when the parenting proceedings were heard on a final basis by me, the father attended the hearing each day whilst incarcerated. His stated position before this Court was that he had not committed any of the offences but had pleaded guilty under pressure. The father was not permitted by this Court to depart from the Agreed Facts on the basis of which he had pleaded guilty.[3]
  15. Final parenting Orders were made on 6 September 2012 (“the September 2012 Orders”). The Orders provide for the mother to have sole parental responsibility and for the child to live with her. There is no provision for the child to spend face-to-face time with the father, nor for any telephone contact. There is however an Order for communication by letter, card and gifts, three times per year.

The Applications

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  1. The orders sought by the father are:
    1. A discharge of certain orders, to be replaced by orders for face-to-face time, graduating from a period of four hours on a Saturday to a full alternate weekend: 8.00 am Saturday to 5.00 pm Sunday;
    2. Telephone communication each Wednesday afternoon;
    1. Mutual non-denigration orders;
    1. A specific order for restraint on corporal punishment; and
    2. A specific issues order for restraint on either party making application for the issue of a passport for the child.
  2. As previously stated, the mother opposes the application and seeks its dismissal.
  3. There are two bases for opposition:
    1. That there is insufficient change of circumstance/lack of fresh evidence to justify a re-opening of parenting issues; and
    2. That in any event, it is not in the best interests of the child for the September 2012 Orders to be varied.

EVIDENCE

  1. The documents relied on in respect of the application were as follows:

The Father

  1. Father’s Initiating Application filed 04/04/2014;
  2. Affidavit of the father filed 23/09/2015;
  1. Affidavit of the father’s partner filed 08/09/2014;

The Mother

  1. Mother’s Response filed 13/05/2014;
  2. Affidavit of the mother filed 29/10/2014; and

Reports

  1. Family Report dated 01/12/2014.

HISTORY OF EVENTS SINCE THE SEPTEMBER 2012 ORDERS

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  1. On 18 January 2014 the father was released from prison.
  2. On 4 April 2014 the father filed the current application for time with the child.
  3. On 13 May 2014 the mother filed a Response seeking dismissal of the application but failing dismissal, that the issue of change of circumstance be dealt with as a discrete matter. The latter course was taken.
  4. On 26 May 2014 the matter was given a hearing date for one day (18 July 2014) in relation to whether or not there had been a sufficient change of circumstances to justify reconsidering the parenting orders.
  5. In June 2014 the father, representing himself, filed a document setting out his position.[4]
  6. On 16 July 2014 the hearing, due to commence two days later, was adjourned on the application of the father, over the objection of the mother, to 20 August 2014. The father advised the Court of difficulties with his application for Legal Aid.[5]
  7. On 20 August 2014, the Legal Aid issue having been clarified favourably to the father, the one day hearing was relisted; initially for 3 October 2014 and subsequently for 7 November 2014.
  8. On 7 November 2014 I heard submissions on change of circumstance.[6]
    Ex tempore reasons were given, and the matter stood over for any further submissions on a course raised by the Court.
  9. The difficulty in determining the preliminary question of change of circumstance was the absence of any evidence, current or historical, about the views of the child. I came to a preliminary conclusion that the opportunity should be afforded to the child to be spoken to and to state, if she wished, her views, before coming to a final conclusion about revisiting the September 2012 Orders. Such a course had not been raised with the parties and the matter was re-listed for any further submissions.
  10. On 19 November 2014 I heard and read further submissions.[7] The father was generally favourable to the child being interviewed; the mother entirely opposed.
  11. On that day Orders were made, and ex tempore reasons given, for the child to attend on the Senior Family Consultant (the “Family Consultant”) for interview and for a short Family Report to be prepared on the following matters:

1.1 An observation of the maturity for age and intelligence of the child;

1.2 The views of the child, if any, as to whether she:

    • 1.2.1 has enjoyed receiving letters, card and gifts from the father on occasions over the past two years;
      1.2.2 presently holds a memory of her father and/or [his[his partner]i style="list-style-type: none;"> 1.2.3 has an interest in meeting with her father [and[and his partner]e to face;
  1. 1.2.4 wishes to communicate with her father in any way; irrespective of whether she would like to meet with him.
  2. I noted that depending on the content of the Family Report, the mother “may continue to press for dismissal [of [of the father’s application]may take a different view”.[8]
  3. The matter was stood over to 10 December 2014 pending preparation of the Family Report.
  4. On 25 November 2014 the child attended upon the Family Consultant.
  5. On 2 December 2014 the Family Report was released.

The Family Report

  1. The Family Report was illuminating. The child was described as “chatty and engaging”.[9] Her school reports were reported to reflect a “polite, thoughtful child, attentive to her studies”.[10][10]
  2. The child volunteered to the Family Consultant that she knew why the father had gone to gaol, “he really hurt my Mum”.[11][11] She was able to explain that a friend had told her that the father was in gaol and she had raised the matter with the mother, who then explained what had happened. The child described herself as “crying” when the mother told her about the assaults.
  3. The child communicated positive memories of the father and reported no bad memories of him.[12][12] She had seen his photo in the past and identified similarities with herself.
  4. The child was reported to be of at least average intelligence and ability, “she appeared to be used to communicating with adults … very good verbal skills”.[13][13] She was assessed as having a reasonable level of maturity, consistent with her developmental stage. She was at the time of interview eight years and seven months old.
  5. The child described herself as “very happy to receive gifts and cards from the father”, was not interested in spending time with the father’s partner, but was very much interested in seeing the father.[14][14]
  6. When asked how she would feel if the Judge said she could see the father, the child responded in these words, “I would be upset if I didn’t get to see him cause it’s been a few years”.[15][15] When asked how she would feel if the Judge said she was not going to see the father, she said, “unhappy if I don’t see Dad and a bit mad (angry). If I get to see him I’d be very very very happy”.[16][16]
  7. Importantly, the child was able to distinguish between her feelings and the mother’s feelings, not only with clarity, but with understanding. The child said the mother would feel “[a] [a] worried”[17][17] about time between the child herself and the father. When asked what she thought of the mother’s opinion of the father the child said, “she doesn’t like him a single bit but I do”.[18][18]
  8. The child was also able to express a view on safety and supervision. That is, she thought it would be a good idea “in the first place” if someone else was there when she saw the father so that if he “tried to take her”, that person could call the police.[19][19]
  9. I regard the following expressed views of the child:
    1. Positive about the father;
    2. Hopeful of a meeting; and
    1. Confident of the mother’s support despite their differing views

as significant fresh evidence.

  1. Unfortunately there was further delay before the matter could be determined.
  2. On 3 December 2014, the day after the Family Report was released, the father’s Visa was cancelled by the Department of Immigration.
  3. The father was born in Country E and has lived in Australia since 1990, in which year he emigrated, aged 13, with his family.
  4. The father was detained and sent to H Immigration Centre.
  5. On 10 December 2014 the father’s partner appeared in this Court on his behalf. An application for adjournment of proceedings was made on the basis that the father was appealing the cancellation of his Visa, and, given the timing of the next appeal session, required an adjournment of at least three months. The mother was represented by her solicitor. The application for adjournment was opposed, but granted over opposition. The matter was adjourned to
    1 April 2015.
  6. On 19 March 2015 the Court was asked by the solicitor for the father to administratively vacate the date of 1 April 2015. The Court was advised that there had been a hearing in the Federal Court of the father’s appeal, with judgment reserved. The mother quite properly raised no objection to the further adjournment. The matter was adjourned administratively to 18 May 2015, pending delivery of that decision.
  7. On 10 April 2015 the father was released from H.
  8. On 13 April 2015 the father’s Residence Visa was restored, the decision to cancel it having been overturned.
  9. On 18 May 2015 the matter came before me for trial directions. Both parties were legally represented. On that day, the matter was set down for final hearing for two days in November 2015. Directions were made for the filing of any amended application and/or response and affidavits.
  10. Neither party filed any amended application or response. The father filed an affidavit. The mother did not. She had previously filed a relevant affidavit on 29 October 2014.
  11. On 13 November 2015 the mother filed an Application in a Case to vacate the hearing dates, supported by an affidavit of her solicitor. The substance of the application to vacate was that the solicitor had:[20][20]

… not received any orders indicating that the threshold issue [cha[change of circumstance] been determined nor any reasons given for such determination.

  1. On 23 November 2015 the mother’s Application in a Case was listed. The father opposed the application, having prepared for final hearing. I heard submissions on behalf of both parties.
  2. I considered the following matters:
    1. During the mention on 10 December 2014 the solicitor for the mother had submitted, in the context of opposing a further adjournment, that the matter should be listed for further submissions following the recent release of the Family Report.
    2. On the day when the matter was set down for hearing (18 May 2015), no uncertainty about the nature of the hearing was raised to any extent.
    1. The matter was set down for two days. Submissions on the preliminary point had been made on two occasions, with the only outstanding matter for argument being the implications of the Family Report. It could not reasonably have been inferred that two days of hearing time would be allocated to those submissions.
    1. In my view it was implicit that I considered that sufficient change of circumstances had been established by the setting down of the matter on 18 May 2015 for final hearing.[21][21]
  3. Further I concluded that the balance of fairness and justice in the case fell in favour of the matter proceeding to final hearing, especially as the application to vacate by the mother had come two weeks prior to a final hearing which had been pending for six months.
  4. Nevertheless, I allowed Counsel for the mother to make further submissions in relation to the change of circumstance on the first day of hearing.
  5. The issues for determination accordingly became:
    1. Is there a proper basis for reconsidering the September 2012 Orders; and
    2. If there is, is it in the best interests of the child to change those Orders.

SHOULD THERE BE A RECONSIDERATION OF THE SEPTEMBER 2012 PARENTING ORDERS?

  1. It was submitted on behalf of the mother that there has been no change of circumstance to justify reconsideration of the September 2012 Orders.
  2. In support of that submission, the following matters are raised.

A. Compliance with the September 2012 Orders

  1. The mother has complied with the September 2012 Orders; in fact both parties have complied with those Orders.
  2. The new information is that the child was “very happy to receive gifts and cards from the father” and described a number of them.[22][22] She was looking forward to the next present for Christmas.
  3. I note that the mother was strongly opposed to any order for communication by letter, card and gift during the course of the 2012 final hearing and such order was made over that opposition. The mother put arrangements in place for third parties to assist her in the process of the child accessing those items. The child clearly enjoys the connection that they represent.
  4. On behalf of the mother it was submitted that there is no evidence before the Court that the child’s well-being is adversely affected by the level of contact with the father which she has enjoyed since September 2012.[23][23] That is clearly the case. But the fact that the child has actively benefited from, and enjoyed that contact, is fresh evidence.

B. The father’s release from prison

  1. It is submitted that at the time when the September 2012 Orders were made it was known to the Court that the father would be out of gaol in due course and that accordingly, the fact that he is out of gaol does not represent a change of circumstances.
  2. It is true that the Court knew that the father was in gaol and would be released. However, he was sentenced to a term of four years and nine months, commencing 19 October 2011, and expiring 18 July 2016. The evidence is that the father was released after the non-parole period of two years and three months, on 18 January 2014; the earliest day he could be released.
  3. There is no evidence before me of any breach of his parole conditions, which were annexed to his affidavit.[24][24]
  4. There is no evidence of breach of the AVO.
  5. The father studied in gaol and his certificates of qualification in proficiency were annexed to his affidavit.[25][25] Further, on release from gaol, the father reunited with his partner, who has remained loyal to him and to his relationship with the child. He has maintained his own commitment to the child and to the possibility of including her in events which involve his extended family, who live in Sydney.

C. Views of the Child[26][26]

  1. Most significantly, the child has expressed a strongly held, even passionate view, that she wishes to meet with the father and to spend time with him, despite the fact that she understands two things:
    1. That the father hurt the mother and went to gaol as a consequence; and
    2. That the mother dislikes everything about the father, but the child herself does not.
  2. On 10 December 2014, when the Family Report had just been released, I commented that in my impression, the mother must have been very careful and protective of the child for her to be so freely expressing a positive reaction about the father. I endorse that comment in these Reasons and note that the child is confident that the mother understands her wishes in the matter, despite their very different opinions about the father.
  3. It is a reflection of a very high level of parenting capacity for the mother to have shielded the child to the extent that she has from her feelings and allowed the child to freely express her own views.
  4. A submission was made that because the Single Expert, in his Expert Report for the proceedings in 2012, identified a strength and warmth in the bond between the child and the father, that nothing has changed because the child continues to feel that way.[27][27] I reject that submission. It is a matter of great significance that the child, who has not actually seen the father since she was four years old, has maintained a bond with him, in her own thinking, and has a very strongly held wish to see him and spend time with him.
  5. Further, I reject the submission that “whatever the child’s views are they should be over-ruled”. In this context, a preliminary consideration of revisiting parenting orders, it would be contra to authority to ignore fresh evidence of this kind.[28][28]

Conclusion

  1. The change of circumstances I identify and take into account are:
    1. Positive conduct by the father, stability and lawfulness in the father during his imprisonment and since his release; and
    2. Fresh evidence, namely the views of a child assessed as having the maturity to express them.[29][29] Those views being a strongly held wish to spend time with the father.
  2. For these reasons, and those expressed in two prior ex tempore reasons delivered in November 2014, I consider that there is evidence sufficient to justify a reconsideration of parenting issues.

WHAT ORDERS SHOULD BE MADE IN THE BEST INTERESTS OF THE CHILD?

Oral Evidence

The Father

  1. The evidence of the father, both in his affidavit and during his cross-examination, was focussed on the child and not the mother.
  2. The current circumstances of the father, at the date of hearing, were that he was living with his mother, to care for her after surgery and ill-health. He was otherwise regularly spending time with his partner of now six years and focussing his attention on an application to quash his criminal convictions.
  3. The father has scrupulously complied with the September 2012 Orders for communication with the child, even during the period when he was in detention at H, when he arranged for a friend to post Christmas gifts to the child.
  4. Those parcels were not collected by the mother and the father pursued inquiries with the solicitor for the mother. After five months the father received a response from an organisation known as “VOCAL” (Victims of Crime Assistance League). There is evidence of lack of communication between that organisation, the mother and the post office. In any event, on 2 September 2015, the father was advised of a new postal address, care of VOCAL.[30][30]
  5. The father was extensively cross-examined on many topics.
  6. One proposition that was put to him was that his application for time with the child was to “ensure his migration status in Australia”. I accept the evidence of the father, which he gave as follows:

No … I’ve been fighting for access to my daughter since 2008 way before the [Dep[Department of Immigration]e mother told me then ‘leave or face the consequences’.

  1. I consider there is no substance in the proposition that was put to the father.
  2. The parties separated in November 2008. All of the assaults with which the father was charged, and to which he pleaded guilty, took place prior to that date. The father spent time with the child by arrangement with the mother, and by consent order, up until the time of the father’s criminal trial. Certainly the mother was non-compliant with the orders at times during that 18-month period, but in the early days after separation, the child spent time with the father. Further, and equally significant, the parties lived together until November 2008.
  3. Accordingly from her birth in April 2006, until the parties’ separation in November 2008, the child spent daily time with the father, which includes the July 2007 incident for which the father was charged with an assault.
  4. The mother has asserted, and the father has denied, that he held a Samurai sword to the chest of the child:[31][31]

The [fat[father]bbed [the[the child] carried her to the door of the bathroom and holding the Samurai sword to her chest, told the [mot[mother]would kill her as punishment for betraying him …

  1. I am of course not in a position to come to a definite conclusion about the exact events of that day. The significant matters are that the father pleaded guilty to, and was convicted of and served a term of imprisonment for, the known charges. The transcript from the District Court of 19 July 2011 appears to confirm that although the incident was included as stated in the Agreed Facts, the father was not convicted of that offence.[32][32]
  2. This is not to raise any inference that because the mother chose to continue living with the father, such an incident is reduced in significance. Rather it is that the child spent daily time with the father throughout that period and, clearly on the evidence of the Family Report, does not have a memory that has adversely affected her feelings about the father. Further the mother must have had sufficient belief that there was a value in the child spending time with the father for that to have continued, at times by consent, for three years after the July 2007 incident.
  3. Overall the father was composed in his approach to giving evidence and contained. Whilst not conceding the proposition put to him that ongoing litigation was being conducted to control the mother, he accepted that it was stressful for her.
  4. Overall my impression was that the father, together with his partner, is focused on two things:
    1. Restoring the relationship between himself and the child; and
    2. Restoring his reputation and record with the application to quash his conviction.
  5. I conclude that the father will be patient, whatever the outcome, and will maintain his commitment to the child.

The Father’s Partner

  1. The father’s partner is aged 33.
  2. She readily conceded that she did not believe that the father had committed any of the offences for which he has been punished and also that she had no first-hand knowledge of the events.
  3. The father’s partner impressed as committed. She visited the father in gaol on a weekly basis[33][33] and acted as his advocate at times in this Court and with the Department of Immigration.
  4. She had some contact with the child in late 2009 for about 12 months before all contact ceased and I have no hesitation in accepting that she would assist the father in any she could to restore the relationship between himself and the child.

The Mother

  1. The mother gave evidence as she did in the 2012 proceedings, with the father absent from the court room, participating by video link in another room. At all other times, the mother herself was in the other room.
  2. The mother was tearful during her evidence and softly spoken; as she had been in the 2012 final hearing.
  3. The mother was clear to say that she believes the father will “kill me if he gets the chance”.[34][34]
  4. Counsel for the father had taken the step of conducting a Google search on the name of the mother, which brought up a document tendered into evidence. It is an ‘Agent Profile’ with a photograph of the mother, apparently from the mother’s employer.[35][35] Counsel was making the point that it would have been easy enough for anyone to find information about the mother on the internet.
  5. Counsel also raised with the mother the likelihood of the child herself learning to use the Internet, if she had not already done so, with particular reference to the child herself Googling the father’s name. The mother agreed that the child might pursue that course. The evidence of the mother was that she did not have a problem with the child undertaking a similar search, “he is her father and she is entitled to know who he is”.
  6. The mother readily conceded that the child was interested in seeing the father, “that’s what she said”. However, her clear position was that the current Orders should continue with no face-to-face time between the child and the father.
  7. The evidence is that the father had proposed to pay child support from the time he started working whilst he was in gaol. However, he was contacted by the Child Support Agency to advise that the mother had “cancelled the child support assessment”.[36][36] The mother’s explanation for why she had taken that step was “I don’t want to have anything to do with him”.
  8. In a similar way, on two occasions, the father sent vouchers or gift-cards to the child to purchase things for herself at particular shops. They were not redeemed; the mother taking the view that it would be possible for the father to trace her through the ‘cashing in’ of the cards. One example was a Smiggle gift-card for stationery.
  9. The mother did not obtain a post office box in her own name. She called on the assistance of VOCAL to provide a post office box number, which that organisation clears, referring any items on to her. Unfortunately when VOCAL changed its post office box address, items sent by the father for the child for Christmas 2014 were delayed by months. The mother agreed that she was the one with the obligation (pursuant to orders[37][37]) to tell the father of her change of address. My impression is that she felt she was doing all that could be expected in having arranged for VOCAL to set up a post office box for her.
  10. The mother freely conceded that she was unhappy when the father was not deported.
  11. In relation to the child’s feelings, the mother stated that “she’s entitled to her own feelings and independent views”. However she was unable to say very much at all about what the child has said to her in that regard.
  12. My impression is that the mother’s ongoing wish is for there never to be face-to-face time at all between the child and the father. A big part of that wish is to ensure that there is no way for the father to learn the mother’s address, or the child’s school, or any other details of their shared life.
  13. The mother refused to contemplate the possibility of telephone contact between the child and the father, and I am confident she would not facilitate it. However if I am wrong about that, the child would be unlikely to benefit from receiving calls in circumstances where the mother has such antipathy to that prospect.
  14. The mother agreed that she found cards from the father for the child emotionally disturbing for herself, “yes, it’s very upsetting”. The mother again freely conceded that the child welcomed the gifts and cards and that the child’s needs and wishes were very different to her own. The mother’s preference clearly is to wait until the child is an adult and can make her own decisions.
  15. I asked the mother if she agreed with the proposition that if the father were to have his convictions quashed, that her own understanding of events regarding the assaults on her would be unaffected by that outcome. She agreed with the proposition.
  16. Importantly, the mother was asked about any evidence of current counselling. She said she saw a psychologist. There was provision in the September 2012 Orders for the mother to give a copy of those Orders, Reasons for judgment and the three Expert Reports to any clinical psychologist or psychiatrist she consulted about the implementation of the September 2012 Orders. If the mother has been working with her psychologist to be able to meet the independent needs of the child for a relationship with the father, there was no evidence of that before me.
  17. In her affidavit, the mother set out with particularity that in her view the child’s safety and health was at risk if she spent time with the father, even in a professionally supervised setting and that her own safety and health was likewise at risk if the child spent time with the father, again, even in a professionally supervised setting.[38][38] There was no evidence to support the mother having ventilated those fears with an appropriately qualified expert, nor sought assistance in how to meet the child’s needs independently of her own.
  18. The mother had not told the child that the father was out of gaol. Her explanation was she tried to talk about him as little as possible. This was a reflection more of her need to keep the father out of her thoughts than the child’s need to know that there was progress for the father and the possibility of seeing him again.
  19. The evidence suggests that the child was careful not to mention the father to the mother, knowing that it would upset her. When asked whether the child had told her that she wanted to see the father, the mother’s answer was “not for a very long time” and yet in December 2014, the child was able to, without difficulty, tell the Family Consultant that that is what she wanted. It is likely that the child is protecting the mother by not talking about her own feelings and wishes.

The Family Consultant

  1. On behalf of the mother, the Family Consultant was extensively cross-examined.
  2. An attack was made by Counsel on the approach taken to the task; an attack which was in my view was entirely unjustified.
  3. In particular, the Family Consultant was criticised for telling the child that the purpose of the interview was that the:[39][39]

… mother and father [wer[were]ing to see the Judge to sort out arrangements for her and that the family consultant’s job was to talk to her as the judge wanted to know what she thought …

  1. Quite reasonably the Family Consultant said the child was old enough to know where she was, in a Courthouse, so and that she was contextualising the reason for the child’s visit.
  2. I am satisfied that the Family Consultant held a conversation with the child, which allowed her to elicit the child’s views, and responded exactly in terms of the task that was given in the Orders of 19 November 2014.

THE LAW

  1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
    1. Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
    2. Children are protected from physical and psychological harm;
    1. Children receive adequate and proper parenting to help them achieve their full potential; and
    1. Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
  2. This is an application for parenting orders pursuant to s 64B(2) of the Act. The application is in relation to time and communication only. Current Orders in relation to parental responsibility and residence are unchallenged.
  3. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
  4. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

  1. The child has a meaningful relationship with the mother. The mother has provided for her care exclusively since November 2008. The child is well-developed, doing well at school, articulate and thoughtful.
  2. There is a benefit to the child in also having a meaningful relationship with the father. This is an issue of identity and knowledge, as well as the positive benefit of engaging with the father.
  3. The evidence suggests that the child has kept the father’s memory alive in a positive way and wonders about him. She wants to see him and has suppressed that wish as much as possible knowing that the mother has an entirely negative view of the father.
  4. It would help the child to know what she means to the father, what she means to the extended paternal family, and what positive benefit she could draw from a connection with that family, including the father’s partner, who she presently has no interest in seeing.

The need to protect the child from physical or psychological harm from being subjected or exposed to abuse or family violence

  1. This is a relevant matter.
  2. The mother’s express concern is that the child and herself will be at immediate risk of harm if there is face-to-face time between the child and the father.
  3. The matter proceeds on the basis that the father pleaded guilty to certain charges which involved assaults on the mother. The father denied in the 2012 proceedings, and continues to deny, that he did in fact assault the mother. He is now pursuing an application to quash those convictions.
  4. I have no reason to doubt that the mother is genuinely fearful of the father, that is consistent both with the assaults having taken place and not having taken place.
  5. However, there is no evidence or assertion of exposure to family violence since July 2007, when the child was 15 months of age.

Additional Considerations

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

  1. The child is now almost 10 years of age.
  2. The child has expressed a strong, positive view about spending time with the father. She wants to do it, she will be disappointed if she is not permitted to do it, and she understands that the mother does not want her to see the father and does not like him. The child is confident that the mother understands her independent wishes in the matter.
  3. I gave considerable weight to the views of this child. It must be the case that she enjoyed a warm and engaging relationship with the father up until August 2010 when all contact ceased, for her to be able to draw on her memories in such a positive way.
  4. The child is assessed to be mature for her age, articulate and thoughtful.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

  1. As stated, the child has her most important relationship with the mother.
  2. There is no evidence before me, and there need not be any, of the other people who are important to the child at this time; perhaps members of the mother’s family and other friends.
  3. The relationship between the child and the father is presently being kept alive by the receipt of gifts, cards and letters directed by the father to the child.
  4. There has been provision in the September 2012 Orders for the child to send letters and cards to the father, if she wishes.[40][40] Given the preference of the mother not to speak of the father, it is unlikely that the child was told she could do so. Whatever the reason, there has been no communication from the child to the father.
  5. There are members of the father’s family who are interested in meeting and spending time with the child. It is important for her to understand that she is a welcomed member of the extended paternal family. Photographs will assist in that regard.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

  1. The mother has to date made all the major long-term decisions about the child.
  2. The father has communicated with the child to the extent that he is permitted to do so by the September 2012 Orders.

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

  1. The father applied to pay child support from the time he commenced working in gaol. The mother rejected his application and has therefore been entirely financially responsible for all of the child’s needs.
  2. When asked about her decision, the mother said that she would be honest with the child if the child asked and say that the father had offered money for her upbringing but that the mother had refused. The mother is entitled to make that choice for herself but there are material benefits including education and health for the child if the father contributes.
  3. It is reasonable for the father to meet all the costs for time and communication with the child in circumstances where he pays no Child Support; however willing he is to do so.

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

  1. The effect on the child of an order for her to spend time with the father is likely to be a positive one. Her responses to the Family Consultant were resilient ones, in the sense that she knew the mother did not like the father “one bit” and that the mother knew that the child herself did like him and wanted to see him.
  2. The child has not seen the father since she was four years and four months old. The father will have changed, perhaps being marked by his time in gaol, and by tumultuous events which have affected his life, both in gaol and since release.
  3. The child does hold some fears. She expressed to the Family Consultant that it would be better for someone to be present in case the father tried to take her. Those fears may have arisen from her own imagination or may have been discussed with her by the mother or persons known to the mother.
  4. In any event, she holds those fears and it is appropriate that they be addressed by supervision as the child herself suggested:[41][41]

[The[The child]ught having someone else there, in the first place, was a good idea so if the father tried to take her they could call the police. [The[The child]n commented that the mother said the father tried to take her away but ‘he didn’t’.

  1. The child is likely to not want to upset the mother too much and may also be a little bit nervous about contact initially, no matter how much she has hoped for it.
  2. Supervised time in short periods for the first six months will allow a slow start to face-to-face time.

The practical difficulty and expense of a child spending time with and communicating with a parent

  1. There are contact and supervision services in the community readily available.
  2. I have no doubt the father will meet the costs of supervision and it is only a matter for each of the parents to sign the documents and take the steps necessary to facilitate the use of the contact centre and later the supervision service.
  3. The child, as a pre-schooler, attended the nominated contact centre on the Central Coast.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

  1. The mother clearly has the capacity to meet most of the needs of the child.
  2. However, in this important matter, her capacity is somewhat impaired. She acknowledged that at 18 years, the child will be free to spend as much or as little time with the father as she wishes. There are eight years in which she will no doubt continue to wish to see the father and will be increasingly able, especially through technology, to make arrangements without reference to the mother.
  3. The mother wants to have nothing to do with the father and further wants not to think about him. That is unlikely to change, whatever the outcome of the father’s application for quashing of convictions is.
  4. The mother is not addressing the fact that the child has independent needs. The child is entitled to come to her own judgment about the father, based on her experience of him. She has been told about the assault on the mother and the father’s imprisonment. The most the mother has been able to do is not speak about the father. The child has her own memories and feelings about the father and the mother knows it. The child wants to see the father and the mother knows that too.
  5. The evidence is that there has been not a hint of misconduct by the father in gaol, or since his release. There has been complete compliance with the current parenting orders. He has made no attempt to contact the mother. There is no particular evidence of the mother’s assertion that hers and the child’s health and safety are at risk if there is direct face-to-face contact. I consider that the mother is avoiding time between the child and the father for her own reasons, which do not relate entirely to the child.
  6. There is no evidence that the mother took up the provision to have an appropriately qualified psychiatrist or psychologist examine the history of this matter, through previous single Expert Reports and Reasons for judgment, in order to find a way to meet the child’s needs whilst protecting herself emotionally.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

  1. The child is a girl, aged almost 10 years. She lives with the mother but beyond that, the Court is unaware of her circumstances.
  2. She knows that the father is African, that she herself has brown skin, and that this is something she has likely inherited from the father; the mother having fair skin and blonde hair. She is interested in her African heritage.
  3. She is a bright, inquisitive, thoughtful child, with her own ideas.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

  1. The father maintained his commitment to the child from the time she was born.
  2. He has been convicted for assaults on the mother in 2002 and 2007, through his own plea of guilty in 2010. The child was present and exposed to violent conflict, with the possibility that a sword was put to her chest as a 15 month old infant, as the father threatened the mother.
  3. The mother, on her own evidence, maintained a relationship with a violent man until November 2008. At the 2012 final hearing, the mother’s evidence was that she had been overborne by the father and was unable to leave him despite the violence. There is no evidence that she has achieved some insight into the need to identify and avoid violent partners. She may have done so.
  4. In other ways, both are loving, affectionate and committed parents.

Any family violence involving the child or a member of the child’s family, and 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

  1. The family violence in this matter has been discussed throughout these reasons.
  2. There is a current family violence order in place, made in the District Court in July 2011. It is due to expire in July 2016. The matters which gave rise to the making of that order were the pleas of guilty by the father to certain charges; other even more serious charges were not then pursued.
  3. In the two years since the father was released from gaol, there has been no breach of that order.
  4. The father continues to be on parole until August 2016. There is no evidence of any breach of parole conditions.
  5. The evidence of the father’s partner is that there has not been any family violence in their six year relationship.

Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

  1. To simply dismiss the father’s application would be to give no weight to the child’s wishes and no weight to a pre-existing positive father/daughter relationship, which the child has been able to sustain from memory for the last five-and-a-half years.
  2. It is appropriate that the child now start to spend some time with the father.
  3. It is essential that the child not be exposed to her parents coming into contact with each other under any circumstances, even after the family violence order has expired. It is probable, almost certain, that the mother would react with fear and revulsion in those circumstances and that the child would be frightened, at the least.
  4. Supervised time in a contact centre for the first 12 months will provide for a graduation of time, which enables the child to get to know the father and does not create instability in the mother’s household.
  5. Accordingly, for a period of six months, there should be monthly contact.
  6. Thereafter for a further period of six months, the child could move to fortnightly time with the father, supervised in the contact centre, for periods longer than two hours whenever the centre can so facilitate.
  7. There are three bases for these orders:
    1. To allow the child to re-engage with the father at a slow pace, giving her time to absorb the experience and reflect on it between visits; and
    2. To cautiously cover the final months of the family violence order and the parole period for the father.
    1. To enable the child to have exclusive time with the father and his undivided attention.
  8. At the conclusion of twelve months, time can progress to day time contact in the community, professionally supervised. Members of the paternal family can then become involved.
  9. The child is almost 10 years old. It is likely that supervision will become harder for her to tolerate, no matter how professionally conducted. By the time she starts her secondary education, if not before, it will be a matter for either the parents to agree on progression to unsupervised time or for there to be a further application.
  10. The fact that the father is working towards the commencement of an application to have his convictions quashed is a matter which I take into account in not progressing to unsupervised time in these orders.
  11. The father expressed contrition and remorse in the District Court for the conduct for which he pleaded guilty. He subsequently, in these proceedings which gave rise to the September 2012 Orders, denied the conduct, and he has sustained that denial. His partner supports him with her belief that there has been no wrong doing, as does apparently his broader family.
  12. The mother, unsurprisingly, has reacted adversely to the conflicting stances of the father. Whether or not the convictions are quashed, it is clear on current evidence that the mother will continue to react fearfully to the father and treat him as a threat to her safety. However, her actual reaction to quashing, if it occurs, cannot be known. The timing and reasons will be significant.
  13. In those circumstances, there is a continuing need for supervision until the parties are able to agree or a further application is made, when there is clarity about the father’s criminal status.

Any other fact or circumstance that the court thinks is relevant

  1. The father would like to have his partner present for times with the child and to include her in family events. I consider it appropriate for such involvement to start after time in the Contact Centre has concluded.
  2. The child is interested in seeing the father and has no interest in, and probably no memory of, his partner. That will take time. Photographs of the father, his partner and members of the paternal family will be provided to the child so that she can begin to imagine herself as part of this paternal constellation.
  3. The Orders do not provide for extensive amounts of time with the father in the first 12 months. The child is entitled to have all of that time with him to herself. However, once contact leaves the Contact Centre and is supervised in the community, it would be appropriate for the father’s partner, and sometimes members of his family, to also be present.
  4. It would be appropriate for periods of supervised time to take place in the presence, and perhaps in the home of, the paternal grandmother for special family events.
  5. There is an Order for the child to have the meaning and operation of the Orders explained to her by the Family Consultant. Of necessity, this will require the child to be told that the father is no longer in gaol.

CONCLUSION

  1. For those reasons, Orders are made for time between the child and the father to commence, to be supervised, in two different ways, until the parents agree otherwise or a fresh application is made in due course.

I certify that the preceding one hundred and ninety three (193) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 27 January 2016.

Associate:

Date: 25 January 2016


[1] Exhibit 3

[2] Exhibit 4

[3]Tindall & Saldo[201[2012]CA 1156, pars 22-24

[4] Exhibit 9

[5]Tindall & Saldo[201[2014]CA 1036, pars 4-5

[6]Tindall & Saldo[201[2014]CA 1036

[7]Tindall & Saldo [201[2014]CA 1061

[8]Tindall & Saldo [201[2014]CA 1061, par 15

[9] Family Report dated 01/12/2014, par 7

[10][10] Family Report dated 01/12/2014, par 8

[11][11] Family Report dated 01/12/2014, par 9

[12][12] Family Report dated 01/12/2014, par 9

[13][13] Family Report dated 01/12/2014, par 12

[14][14] Family Report dated 01/12/2014, pars 13 and 15

[15][15] Family Report dated 01/12/2014, par 17

[16][16] Family Report dated 01/12/2014, par 17

[17][17] Family Report dated 01/12/2014, par 18

[18][18] Family Report dated 01/12/2014, par 18

[19][19] Family Report dated 01/12/2014, par 19

[20][20] Affidavit of Elisabeth Houston filed 13/11/2015, par 13

[21][21]Tindall & Saldo [201[2015]CA 1029

[22][22] Family Report dated 01/12/2014, par 13

[23][23] Exhibit 2 (Mother’s Case Outline, par 79)

[24][24] Affidavit of the father filed 23/09/2015, page 37

[25][25] Affidavit of the father filed 23/09/2015, pars 29-33

[26][26] Affidavit of the father filed 23/09/2015, pars 64-69

[27][27] Expert Report dated 07/06/2011, pages 14-15

[28][28]Marsden & Winch[200[2009]CAFC 152(2009) 42 Fam LR 1

[29][29]Morton & Berry(2014) FLC 93-613

[30][30] Affidavit of the father filed 23/09/2015, page 17

[31][31] Affidavit of the mother filed 29/10/2014, Annexure D (Agreed Facts, page 35)

[32][32] Exhibit 4 (transcript of the District Court, Judge Ellis, page 14, lines 30-50) and
Exhibit 5 (page 11, lines 36-50 and page 12, lines 1-9)

[33][33] Affidavit of the father’s partner filed 08/09/2014, par 17

[34][34] Affidavit of the mother filed 29/10/2014, par 11

[35][35] Exhibit 11

[36][36] Affidavit of the father filed 23/09/2015, pars 44 and 45

[37][37] Orders 6(a) and 6(b) of the September 2012 Orders

[38][38] Affidavit of the mother filed 29/10/2014, pars 12-15

[39][39] Family Report dated 01/12/2014, par 9

[40][40] Orders 8 and 9

[41][41] Family Report dated 01/12/2014, par 19

NOTE:  This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties.  Section 121 of the Family Law Act 1975 makes it an offence, except in very limited circumstances, to publish or distribute a report of a case or part of a case, including information contained in a Judgment, which identifies parties, related or associated persons, witnesses or others involved in the case.  A breach of the section is a criminal offence.  The section also sets out certain limited defences to criminal liability. An example is where the Court has expressly authorised the publication.  

A printable version can be accessed from Austlii without pictures or advertisements here, which should be used if you wish to provide the case to the Court in your matter.

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