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Ravice & Hillon and Anor [2014] FamCA 2 (7 January 2014)

Last Updated: 8 January 2014

FAMILY COURT OF AUSTRALIA

Aldridge & Keaton [2009] FamCAFC 229; (2009) FLC 93-421
Allesch v Maunz (2000) 203 CLR 172
Dennett & Norman [2007] FamCA 57
Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286
Jacks & Samson [2008] FamCAFC 173; (2008) FLC 93-387
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Malcolm & Monroe & Anor [2011] FamCAFC 16; (2011) FLC 93-460
Marriage of L & T [1999] FamCA 1699; (1999) 25 Fam LR 590
MRR v GR [2010] HCA 4; (2010) 240 CLR 461
Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1
Valentine & Lacerra [2013] FamCAFC 53

REPRESENTATION

ORDERS

(1) All former orders relating to the child D, born ... December 2010, (“the child”) are discharged.
(2) The mother shall have sole parental responsibility for the child.
(3) The child shall live with the mother.
(4) Pursuant to s 68B of the Family Law Act, the father is restrained from entering upon or approaching within 100 metres of:

• (a) The mother’s residence;
• (b) The paternal grandmother’s residence; and
• (c) Any school, pre-school, or day-care centre attended by the child.

(5) Subject to written communication occurring in accordance with Order 6 hereof, the parties are restrained from causing or permitting the child to spend time with, remain in the physical presence of, or to communicate orally or in writing with, the father.
(6) The mother and father shall take all reasonable steps to ensure that the child is able to communicate with the father in the following manner:

• (a) By the father being able to send letters, cards, and/or gifts to the child on three occasions each year on or about 30 April, 31 August, and ... December; and
• (b) By the mother sending to the father any letters, cards, photographs, or other written communication that the child wishes to be conveyed to the father in return.

(7) For the purposes of implementation of Order 6 hereof:

• (a) The father’s letters, cards, and/or gifts shall be sent to the child at ... B street, Suburb C, NSW; and
• (b) Any letters, cards, and/or gifts sent by the father to the child shall disclose a return address to which any return correspondence may be sent.

(8) Subject to the paternal grandmother’s compliance with Order 5 hereof, the mother and paternal grandmother shall take all reasonable steps to ensure that the child spends time with the paternal grandmother as follows, or as otherwise agreed:

• (a) Up to and including Sunday 20 April 2014, each alternate Sunday from 9.00 am until 5.00 pm, commencing on Sunday 12 January 2014; and

(b) Thereafter, each fourth weekend from 9.00 am Saturday until 5.00 pm Sunday, commencing on Saturday 10 May 2014.

(9) Order 8 hereof is suspended:

• (a) Between 5.00 pm Christmas Eve and 9.00 am Boxing Day; and

(b) Between 5.00 pm Saturday and 5.00 pm Sunday each Mother’s Day weekend.
(10) For the purposes of implementing the time spent by the child with the paternal grandmother, unless otherwise agreed, the mother shall cause the delivery and the paternal grandmother shall cause the collection of the child at the commencement of the time to be spent with the paternal grandmother at the McDonalds Restaurant at Suburb C, NSW, and the paternal grandmother shall cause the delivery and the mother shall cause the collection of the child at the conclusion of the time spent with the paternal grandmother at the same place.
(11) Unless otherwise agreed, the mother and paternal grandmother shall take all reasonable steps to ensure that the child communicates privately by telephone with the paternal grandmother each Wednesday between 6.00 pm and 6.30 pm, and for that purpose the paternal grandmother shall telephone the child on the telephone number provided to her by the mother and the mother shall ensure that the child is able to receive the paternal grandmother’s calls on that number at that time.
(12) The mother and paternal grandmother are each restrained from denigrating the other or the father in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other or the father.
(13) The mother and paternal grandmother shall each forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
(14) Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
(15) The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
(16) Any and all outstanding applications are dismissed.

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

FILE NUMBER: NCC 1748 of 2012

Applicant

And

First Respondent

And

Second Respondent

And

REASONS FOR JUDGMENT

INTRODUCTION

1. The child who is the subject of these proceedings was born in December 2010 and is three years of age.
2. Unfortunately, none of his potential carers offer him a completely risk-free residential environment and so the proceedings necessitated evaluation of which party posed the least risk of harm to him.
3. The respondent father eventually abandoned the proceedings and thereby excluded himself from contention, leaving the applicant mother and respondent paternal grandmother to contest the child’s residence and the allocation of parental responsibility for him.

HISTORY

1. The parents commenced a fractious relationship in February 2009.
2. They lived together in the father’s home until October 2010, when they moved to live with the paternal grandparents for several months.
3. The child was born in December 2010.
4. The parents and child vacated the paternal grandparents’ home and returned to live in the father’s home in February 2011.
5. The parents separated in July 2011 when the father was sentenced to a term of imprisonment for a series of offences, including his violent assault of the mother.
6. The parents resumed communication in December 2011, following the father’s probationary release from prison, and they then resumed cohabitation in January 2012.
7. The parents separated again on 29 June 2012. The mother vacated the father’s home and left the child in the father’s care due to her fear of him. She then commenced these proceedings within days, seeking recovery of the child from the father.^[1]
8. Orders were made on 10 July 2012, with the consent of the parents, providing for the child’s return to the mother, for the child to live with the mother, and for the child to spend time with the father several times each week.
9. In September 2012 an incident occurred in which the father was suspended by the neck with rope, following which he was hospitalised and treated. There is some conjecture about whether the incident amounted to a genuine suicide attempt, but there is no doubt the father came to be standing on a chair with a noose around his neck through his own voluntary actions.
10. The mother, not unreasonably, believed it was a suicide attempt and considered the father’s deteriorated psychological condition merited her decision to keep the child away from him. She filed an application for revised interim parenting orders allowing the child to only spend time with the father under professional supervision.
11. Further orders were made on 6 November 2012 providing for the child to spend only supervised time with the father at a contact centre. The proceedings were transferred by the Federal Magistrates Court (as the Federal Circuit Court then was) to this Court. The interim parenting orders commenced operation when a vacancy at the contact centre became available in February 2013.^[2]
12. By March 2013 the parties were again in frequent contact with one another and the mother and child resumed occupation of the father’s home. Whether that was because they reconciled their relationship, as the father alleged, or because the mother was coerced by the father’s threats, as the mother alleged, it is really unnecessary to decide.
13. The mother and child vacated the father’s home only a month later on 14 April 2013 and they have not returned to live with him.
14. Only two days later, on 16 April 2013, the father collected the child from pre-school and refused to return him to the mother, which prompted another interim dispute. The mother’s urgent application was determined by the Federal Circuit Court, resulting in the issue of a recovery order enabling recovery of the child from the father and his delivery into the mother’s care. An injunction was made precluding the father from “removing or taking possession of the child” until 17 October 2013.
15. In May 2013 the paternal grandmother sought and was granted leave to intervene in the proceedings as a party, but her interim application for the child to live with her was dismissed.
16. On 12 June 2013, orders were made providing for:
    1. Discharge of former consent orders relating to the child;
    2. The child to live with the mother, on condition that she and the child remain resident with the maternal great grandparents;
    1. The child to spend supervised time with the father for two hours each Saturday at a contact centre; and
    1. The child to spend time with the paternal grandmother for four hours each Sunday, on condition that she ensure the child had no physical interaction or communication with the father.
17. The child spent time with the paternal grandmother in accordance with those orders, but no supervised time with the father at the contact centre. There was a waiting list at the contact centre,^[3] which delayed implementation of the orders for a month until July 2013, but even afterwards the father still failed to avail himself of the orders.^[4]
18. It is common ground the paternal grandmother allowed the child to communicate by telephone with the father,^[5] contrary to the terms of the interim orders, but there was controversy about whether she also impermissibly allowed the child’s physical interaction with the father. The mother alleged it, but the paternal grandmother denied it.^[6]
19. In late September 2013, the father viciously assaulted the paternal grandmother, which resulted in the father’s prosecution and incarceration,^[7] the paternal grandmother’s hospitalisation,^[8] and the consequent adjournment of the final hearing in these proceedings, which hearing was due to commence on 30 September 2013.
20. The final hearing was adjourned until 9 December 2013, when the paternal grandmother was fit to participate and the Family Consultant was available.

PROPOSAL AND EVIDENCE OF MOTHER

1. The mother pressed for the orders set out within a minute of orders she tendered in final submissions,^[9] replacing those set out in her Amended Initiating Application filed on 30 August 2013, in which she proposed that she have sole parental responsibility for the child, that he live with her, that he spend a few hours per month visiting with the paternal grandmother (initially under supervision), and that he have no physical interaction or communication at all with the father.
2. In support of her proposal the mother relied upon her affidavit filed on 13 September 2013.

ABSENCE OF FATHER

1. The father did not file any document in these proceedings after July 2012, shortly following commencement of the proceedings by the mother.
2. He last appeared at Court in relation to these proceedings on 12 June 2013, at which time he was not legally represented.
3. The father failed to attend upon the Family Consultant for interview and observation with the child in August 2013,^[10] at which time the paternal grandmother told the Family Consultant the father intended to withdraw from the proceedings.^[11]
4. The father failed to attend Court on 23 August 2013, at which time the paternal grandmother’s solicitor confirmed her expectation the father would no longer participate in the proceedings.^[12] It was furthermore noted the father had failed to comply with interim orders requiring his submission to urinalysis.^[13]
5. The father must have been aware the proceedings were fixed for final hearing commencing on 30 September 2013 since a sealed copy of the procedural orders made on 23 August 2013, which made that plain, was sent by the Court to his last known address for service. Those orders expressly noted the need for the father to re-list the matter to seek further procedural directions if he intended continuing his participation in the proceedings,^[14] but no request to re-list the matter was ever received from the father.
6. The father failed to appear at Court for the commencement of the trial on 30 September 2013, but even if he wanted to attend Court on that date he was unable to do so because he was remanded in custody with bail refused following his assault upon the paternal grandmother only days before.^[15]
7. The father also failed to attend Court when the final hearing was resumed on 9 December 2013, at which time the other parties believed he was still in custody serving a sentence of imprisonment for his assault of the paternal grandmother.
8. The most likely inference is that the father had disengaged from both the litigation and the child. Even though incarcerated, the father made no application to appear and participate in the hearing by audio-visual or telephone link. Perhaps his attitude was informed by his expectation an order would be made prohibiting his interaction with the child, which order the mother proposed, the Family Consultant recommended, and even the paternal grandmother belatedly proposed.
9. If the father wished to participate, but believed his incarceration thwarted it, he is not deprived of the opportunity to bring further proceedings for parenting orders in relation to the child, so long as he satisfactorily explains his absence (see Allesch v Maunz (2000) 203 CLR 172 at 182-183, 189-191; Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 at 6-8, 10, 16, 20-21, 22). On the available evidence, the father was not denied procedural fairness by the hearing proceeding in December 2013.

PROPOSAL AND EVIDENCE OF PATERNAL GRANDMOTHER

1. The paternal grandmother filed an Amended Response on 8 November 2013, replacing the Amended Response she filed on 25 September 2013. Her proposal was generally that she and the mother should have equal shared parental responsibility for the child, that the child live with her, that the child spend substantial and significant time with the mother (but with any overnight time to be spent at the maternal grandmother’s home), and that the child be precluded from spending time or communicating with the father at all.
2. That was a significant change from her position only two months before, when she proposed the child could spend unspecified amounts of time with both parents, but only under her direct supervision.
3. The paternal grandmother relied upon her three affidavits filed on 14 May, 25 September, and 8 November 2013 in support of her proposal.

PROPOSAL OF INDEPENDENT CHILDREN’S LAWYER

1. The Independent Children’s Lawyer tendered a minute of the orders he proposed at the commencement of final submissions.^[16] The proposal generally entailed the mother having sole parental responsibility for the child, the child living with the mother, the child spending time with the paternal grandmother on an expanding basis culminating in alternate weekends, and an injunction precluding the child from any interaction with the father other than by way of occasional correspondence.

ADDITIONAL EVIDENCE

1. The parties and Independent Children’s Lawyer also relied upon:
   1. The Magellan Report, dated 17 June 2013, furnished to the Court by the NSW Department of Family and Community Services (“the Department”); and
   2. The two Family Reports, dated 29 October 2012 and 21 August 2013, compiled by the Family Consultant.
2. The Family Consultant was cross-examined. Her evidence was logical and compelling.

APPLICABLE LEGAL PRINCIPLES

1. Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
5. However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.
6. In the event an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).
7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
8. The principles outlined above have been authoritatively examined in Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286 and MRR v GR [2010] HCA 4; (2010) 240 CLR 461.

BEST INTERESTS OF THE CHILD

1. Where the provisions of ss 60B and 60CC of the Act refer specifically to “parents” in the context of objects, principles, and considerations relevant to the determination of a child’s best interests, the legislature does not intend those relevant factors to extend to parties or third parties who are not parents of the subject children (see Aldridge & Keaton [2009] FamCAFC 229; (2009) FLC 93-421 at [44]- [48], [65], [74], [109]-[112], [119]). Nevertheless, the Act does not import any presumption in favour of parents over non-parents in the determination of proper parenting orders (see Valentine & Lacerra [2013] FamCAFC 53 at [42]- [43]; Aldridge & Keaton at [59]-[61], [75]-[81], [83]; Dennett & Norman [2007] FamCA 57 at [53]- [60]).
2. Although some of the factors prescribed for consideration under s 60CC(3) of the Act refer only to parents, those factors insofar as they concern grandparents may still be considered under s 60CC(3)(m) of the Act, and carry the same weight under whichever provision they are discussed (see Aldridge & Keaton at [111]-[112], [119]; Malcolm & Monroe & Anor [2011] FamCAFC 16; (2011) FLC 93-460 at [94]- [100]; Valentine & Lacerra [2013] FamCAFC 53 at [51]- [53]). Consequently, I will deal with the mother and the paternal grandmother simultaneously under all of the relevant criteria set out within s 60CC(3) of the Act.

BEST INTERESTS – PRIMARY CONSIDERATIONS

Section 60CC(2)(a)

1. There was really no dispute about the quality of the child’s relationship with the mother.
2. The Family Consultant observed in the Family Report, which went without challenge in cross-examination:^[17]

...it appeared evident from the observations of [the child] with the mother that the mother is a primary attachment relationship for [the child] (notwithstanding that the quality of this attachment is likely to have been informed, and possibly disrupted, by the identified issues in this matter), and that maintenance of [the child’s] relationship with the mother will be an important consideration for [the child’s] future psychological wellbeing and adjustment.

1. Given the child’s primary psychological attachment is to the mother, any orders made by the Court must ensure the child’s relationship with the mother is promoted so he is able to derive the full measure of benefit from it, provided he can be adequately protected from any risk of harm whilst in her care.
2. The parents, however, have irreconcilable views about the nature of the child’s relationship with the father. When speaking with the Family Consultant in July 2012, the mother described an ambivalent relationship between them,^[18] while the father considered the child to be primarily attached to him.^[19]
3. The evidence does not permit any strong inference about the current nature of the child’s relationship with the father, but most probably it has suffered some deterioration.
4. The child has not seen the father since April 2013; assuming the paternal grandmother was truthful when she asserted her compliance with interim orders by observing the injunction precluding her from allowing the child to see the father when the child visited her.
5. Even prior to April 2013, there were other prolonged absences of the father from the child’s life. The child did not see the father at all between July and December 2011 whilst the father served a sentence of imprisonment (five months),^[20] nor between September 2012 and February 2013 following the father’s alleged suicide attempt (five months). During February and March 2013 the child only saw the father three times under supervised conditions at a contact centre.^[21]
6. Whether the child will derive any future benefit from his relationship with the father, so as to justify efforts to rejuvenate their relationship, depends upon findings about the extent to which the father poses an unacceptable risk of harm to the child.
7. The evidence relevant to the inquiry under s 60CC(2)(b) of the Act therefore assumed principal significance in the proceedings. The mother, paternal grandmother, and Independent Children’s Lawyer all agreed the evidence justified virtual elimination of the father from the child’s life. Their disagreement revolved around how the evidence should affect the child’s interaction with the mother and paternal grandmother.

Section 60CC(2)(b)

1. The paternal grandmother alleged the mother posed a risk of harm to the child through her subjection of him to physical and sexual abuse, whereas the mother alleged the father and paternal grandmother posed a risk of harm to the child through their exposure of him to family violence. Due to the multiplicity of allegations it is necessary to analyse them individually.

Alleged physical abuse

1. On 16 April 2013, the father collected the child from pre-school and observed a lump on the child’s head, which he reported to the paternal grandmother.^[22] The paternal grandmother alleged she was in the company of the child for a short amount of time the evening before, when she said the lump on the child’s head was not apparent.^[23]
2. If the paternal grandmother’s evidence is accepted as truthful and accurate, it necessarily means the child sustained the injury to his head sometime between the evening of 15 April and the afternoon of 16 April 2013, while the child was undoubtedly in the sole care of the mother. The child’s sufferance of that injury, in circumstances the paternal grandmother considered suspicious, was the very reason she sought to intervene in the proceedings as a party.^[24]
3. The mother admitted she gave different accounts of the circumstances in which the child was injured, one of which she admitted was untruthful. She initially told staff at the child’s pre-school on the morning of 16 April 2013 that the child hurt his head when he fell off the bed, which was a false account.^[25] She lied because she was concerned the Department might otherwise intervene.^[26] When the mother learned that the child had been collected from pre-school that day by the father she reported the other account to the pre-school, which was that the father had thrown an object at her two days before and the object had hit the child in the head rather than her.^[27]
4. If the mother’s second account is accepted as truthful and accurate, it necessarily means the child sustained the injury to his head sometime on the afternoon of 14 April 2013 when she and the child were at the father’s home.
5. That, however, meant the evidence of the mother and paternal grandmother was in conflict about the existence of the injury the following day. In cross-examination the mother admitted the paternal grandmother briefly attended her home on 15 April 2013, but denied she had the opportunity to observe the injury to the child’s head at that time, as the paternal grandmother alleged.^[28]
6. The mother conceded the blow to the child’s head caused a “large welt and bruise”,^[29] which was presumably noticeable from shortly after the child suffered the head trauma. The mother told the Family Consultant she had a photograph of the child’s injury taken on the morning of 15 April 2013,^[30] but she did not adduce it in evidence. She said the photograph was dated, but it was retained by police following her report of the incident to them.
7. The mother and child were collected from the father’s home on the afternoon of 14 April 2013 by the maternal great grandparents,^[31] but neither of them was called by the mother to give evidence about their observation of the child’s injury at or about that time. The mother was given express permission to call the maternal great grandmother as a witness,^[32] but she did not do so because the maternal great grandmother was indisposed by her surgery in September 2013 and she was caring for the child whilst the mother attended the trial in December 2013. An application to call the maternal great grandmother was faintly made on the first day of trial but then abandoned in the face of the difficulty the paternal grandmother would face trying to deal with that evidence at the last moment when she was without legal representation. Those facts satisfactorily avert any inference that the evidence of the maternal great grandmother would not have assisted the mother’s case (see Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 308, 312, 320-321), but the absence of her evidence still left the mother without any corroboration.
8. The inconsistency in the accounts given by the mother suggests her evidence should be received cautiously. However, by comparison, the veracity of the paternal grandmother’s evidence was often found wanting and so at least as much, and perhaps even greater, care is required in the reception of her evidence. For example:
   1. In relation to the father’s hanging in September 2012, the paternal grandmother initially told the Family Consultant in October 2012 it was an attempted homicide,^[33] then deposed in May 2013 that the father was himself at fault for an act of “drunken stupidity”,^[34] but then later told the Family Consultant in August 2013 it was the fault of a third party.^[35] It is, of course, impossible to reconcile her vacillation of opinion between the deliberate or inadvertent intervention by a third party and reckless foolishness by the father.
   2. In relation to that same incident, the paternal grandmother denied to the Family Consultant in August 2013 that she had discussed her concern about the father’s psychological condition with his mental health caseworker and removed all excess medication and lengths of rope from his home in the weeks preceding his hanging. When she was confronted with independent records which contradicted her denial she purported to recover her memory of those events overnight,^[36] even though she had been confronted with the same records by the Family Consultant only months before in October 2012.^[37]
   1. The paternal grandmother professed to the Family Consultant that she would “uphold any orders made by the Court, even if they were contrary to her belief system”,^[38] but she proved not to be so reliable. Despite the interim orders made in June 2013 prohibiting her from allowing the child to have any “communication” with the father,^[39] she had no compunction admitting to the Family Consultant she allowed the child to speak with the father by telephone on each and every occasion the child visited her,^[40] which conduct clearly breached the orders. The paternal grandmother asserted she misunderstood the meaning of the order, but it is difficult to accept an intelligent person like her could misunderstand an unconditional prohibition on any communication between the child and the father.

Although the Family Consultant was also aware of and adverted to the parties’ collective disobedience of the former interim orders made in November 2012, whilst the parents cohabited during March and April 2013,^[41] that is not presently significant because parties may ordinarily depart from Court orders if they uniformly consent to do so.

1. The father was apparently unable to attend his first interview with the Family Consultant due to surgery following his involvement in a motorcycle accident. The paternal grandmother told the Family Consultant that was his first ever motorcycle accident, but independent records verified the father had been hospitalised on three former occasions following motorcycle accidents.^[42]
2. In October 2012 the paternal grandmother “continue[d] to deny that the father ha[d] been violent or abusive towards the mother in any way” and that any of his violence had been “in self defence”.^[43] The paternal grandmother’s persistent denials to the Family Consultant were plainly false because, firstly, she must have known the father was convicted of and served a period of imprisonment for his violent assault of the mother in 2011, and secondly, she later admitted her knowledge of the father’s violent treatment of the mother.^[44]
3. In October 2012 the paternal grandmother falsely told the Family Consultant the father had “consistently produced clear urinalysis throughout the court proceedings”,^[45] when in fact the urinalysis reports he produced only weeks before in September 2012 were positive.^[46]

1. In circumstances where the paternal grandmother’s evidence is prone to inaccuracy, it cannot be accepted uncritically. Her evidence of observing the child and noting the absence of any injury to his head on the afternoon of 15 April 2013, while potentially significant, is not an irresistible fact.
2. Importantly, the father did not deny causing the injury to the child in the manner the mother belatedly alleged. He did not file any affidavit in the proceedings after that incident occurred, he did not attend his appointment with the Family Consultant in August 2013 when the incident could have been discussed with him, and he did not attend the final hearing.
3. One thing can be said with confidence – the child’s injury was not sustained accidentally during play. That was the mother’s first explanation, from which she later recanted. If that was the innocent explanation, the mother could always have adhered to it. The explanation for the injury probably therefore entails the attribution of fault to one party. The mother alleged the father caused the injury recklessly, by throwing an object at her and hitting the child instead. The paternal grandmother suspects the mother inflicted the injury intentionally or recklessly, which conclusion she reaches through her disbelief of the mother’s explanations and her perception of the mother’s failure to offer another plausible and innocent explanation.
4. The Family Consultant remained concerned about the mother’s differing accounts about the child’s injury,^[47] but there is an important material distinction between mere concern about her possible abuse of the child and proof of her abuse of the child.
5. Most probably, the child sustained the injury in the manner latterly alleged by the mother – by the father throwing an object at her but recklessly hitting the child instead. There are several reasons for that conclusion: the mother credibly adhered to that version when challenged in cross-examination; such evidence cannot be rejected as inherently improbable; the mother offered an understandable but misguided reason for lying about the child’s injury at first instance; the father failed to deny his responsibility and expose himself to cross-examination when he could and should have done so; the paternal grandmother was not present at any material time and her belief about the cause of the child’s injury is really supposition; the paternal grandmother ultimately admitted she now realises it is unwise to rely upon the father’s versions of past events as they are probably unreliable; and the evidence about the paternal grandmother’s opportunity to observe and deny the presence of the child’s injury on the evening of 15 April 2013 is not compelling.
6. Even if that conclusion is erroneous, and the mother did intentionally or recklessly cause the child to suffer the injury in April 2013, it may properly be regarded as an isolated incident. There is no convincing evidence the mother assaulted or abused the child at any other time before or since.
7. The father alleged to police he had seen the mother “whack” the child on the buttocks,^[48] but even if true, corporal punishment is neither necessarily “abuse” as defined in the Act or a criminal assault. Notably, the police took no action on his allegation.
8. The paternal grandmother informed police and the Department she had seen bruising on the child’s ears, which she inferentially suspected was due to his physical abuse by the mother. But the paternal grandmother’s suspicions are not evidence, particularly having regard to her willingness to think the worst of the mother at every opportunity. The mother plausibly explained the bruising occurred because the child fell over.^[49] Neither the police nor the Department saw fit to act on the paternal grandmother’s reports and the mother was not challenged in cross-examination with the suggestion that her physical abuse of the child caused the injury.
9. The risk of the mother physically abusing the child in the future should properly be regarded as relatively low, particularly since she is now aware of how seriously the issue of child abuse is treated in proceedings like these when a child’s welfare is under consideration. The evidence does not rationally permit any conclusion that the child is at unacceptably high risk of physical or psychological harm through subjection to physical abuse by the mother.

Alleged sexual abuse

1. On 2 May 2013, the father showed the paternal grandmother a photograph he took of the mother and child.^[50] The photograph was taken some weeks before on 12 April 2013.^[51] It depicts the mother holding the child whilst both of them are naked.^[52] Without any explanation, the photograph is innocuous.
2. While the paternal grandmother believes otherwise, the mother maintained nothing improper about her conduct can be inferred from the photograph. She deposed the photograph was taken when she was struggling to hold the child while trying to place him on a towel immediately after having showered.^[53] The photograph is not necessarily inconsistent with that explanation.
3. The paternal grandmother asserted the mother’s conduct with the child was sexually abusive. However, her contention relies entirely upon what she was told about the photograph by the father, which was to the effect that the mother was “simulating sexual activity” with the child.^[54]
4. The mother adhered to her evidence when asked about it by the Independent Children’s Lawyer. Curiously, the paternal grandmother did not challenge the mother about the alleged sexual abuse at all. The failure was probably not mere oversight, since the paternal grandmother quizzed the mother about the allegation of the child’s physical abuse. Perhaps it was because, as already noted, she realised the foolishness of resolute reliance upon the accuracy of the father’s allegations. Little weight is attributable to the father’s hearsay for several reasons.
5. Firstly, hearsay evidence is notoriously unreliable. No direct evidence was given by the father about his observations of the incident. The paternal grandmother was granted leave to issue a subpoena to the father to elicit that evidence from him, in expectation he may not willingly provide an affidavit, but the father did not attend Court. Even if he was served with the subpoena, his compliance with it was precluded by his incarceration from 27 September 2013 onwards and the grandmother did not take any affidavit from him. Rather, she informed the Court she had no intention of calling the father as a witness in her case.
6. Secondly, the mother is depicted in the photograph with a wide smile looking at the photographer. The father was the photographer and the foreground of the photograph plainly shows he was inside the same room as the mother and child in very close proximity to them, just as the mother explained to the Family Consultant.^[55] Whatever was then occurring, the parents knew of each other’s presence and the activity was the subject of their humour.
7. Thirdly, the father’s suggestion he took the photograph as evidence if needed for later use against the mother was specious.^[56] If the father thought he observed the improper conduct he alleged by the mother towards the child then logic demanded that he take immediate remedial action, which he did not. There was no disturbance to the continuity of the parent’s relationship at that point. On the father’s version of events, he and the mother were happily cohabiting as a family unit on 12 April 2013 and continued to do so for a short while thereafter. Contrary to what the father told the paternal grandmother on 2 May 2013, the incident he photographed on 12 April 2013 was not the reason the parents separated. In fact, they did not separate until two days later on 14 April 2013, as the father told the paternal grandmother on that day.^[57] The paternal grandmother was surprised by the father’s revelation on 14 April 2013 because she had not detected any problem between them earlier that same day.^[58] The separation occurred on 14 April and not 12 April 2013, because the father assaulted the mother on the latter occasion.^[59]
8. Fourthly, the father said nothing of the sexual abuse allegation until 2 May 2013, some weeks after both the parents’ final separation and the mother’s procurement of a recovery order against him in respect of the child, when it potentially served his tactical interests in this litigation to make such an allegation.
9. Fifthly, the father’s reports about the matter have not been consistent. When the father reported the allegation to the Department on 3 May 2013, his report was somewhat different from his report to the paternal grandmother the day before. His later version was compatible with the mother’s account of the incident, to the extent that it occurred after the mother and child had bathed and were about to get dried. The father additionally reported the mother wanted to engage him in sexual relations in the presence of the child, which allegation he did not make to the paternal grandmother.^[60]
10. Lastly, the father published the photograph on the internet.^[61] It is quite unlikely he would have done so if he believed the photograph self-evidently depicted sexual abuse of his child, as he would then be responsible for any stigma that thereby attached to him or the child. More likely he published the photograph simply to embarrass the mother by her nakedness.
11. The father also alleged to the paternal grandmother that the mother admitted to him she had allowed the child to salaciously explore or play with her genitals,^[62] which the mother strongly refuted.^[63] That allegation was not pursued in the mother’s cross-examination.
12. The father’s accounts of events are generally highly unreliable, as exemplified by his disingenuous denial of violent conduct towards the mother, which is yet to be explained. The veracity of the paternal grandmother’s allegations against the mother necessarily suffers from the vice of her reliance upon the father’s accounts. The sworn evidence of the mother is much more reliable than the father’s untested allegations.
13. The evidence falls far short of proving that the mother constitutes an unacceptable risk of sexual abuse to the child.

Alleged family violence

1. The Family Consultant reported that independent records verified the mother’s allegations against the father of “coercive, controlling physical and psychological abuse”. Police were summoned to intercede in the parent’s altercations on numerous occasions.^[64]
2. In August 2010, whilst the mother was heavily pregnant, the father slapped her face, pushed her off a lounge and then sprayed her with paint. The mother suffered facial bruising and vaginal bleeding, which caused her to attend hospital for treatment.^[65]
3. In a period of weeks between late June and early July 2011 the father kept the mother imprisoned and isolated within his home, during which time he repeatedly brutally assaulted her, causing her to sustain multiple injuries. Ultimately the father told the mother “I am at the point where I will kill you, I promise”. The mother was only able to escape by secretly passing a letter to a shop assistant seeking help when she was permitted to accompany the father to some shops. An alarm was raised by the shop assistant and the police attended the father’s home, where he was arrested and many weapons seized.^[66] It was that intervention which resulted in the father being charged and convicted of many offences, including assaults upon the mother and possession of weapons and illicit drugs, for which he was sentenced to imprisonment.^[67]
4. At or about the time of his release from prison in December 2011 the father told his treating psychiatrist he might “do something to harm himself or [the mother]...to express his anger”.^[68]
5. Later, at about the time the father hung himself in September 2012, he sent messages to the mother threatening her safety and threatening to kill himself.^[69]
6. The parents’ brief reconciliation in March/April 2013 ended when the father assaulted the mother by throttling her and holding a knife to her throat.^[70]
7. The father’s statements to the Department and the Family Consultant that he has never struck the mother^[71] are fanciful, not least because he was formally convicted of assaulting and occasioning her actual bodily harm in 2011.
8. Apart from his overt violence, the father sought to isolate the mother to enhance his control of her. His influence was at least a partial cause of the mother’s estrangement from her own family members.^[72]
9. Although denied by the paternal grandmother,^[73] the mother alleged the paternal grandparents witnessed the father’s violent conduct towards her and did nothing to prevent it.^[74] Even if the paternal grandmother did not directly witness the violence, she admitted she knew of it,^[75] and she either did not or could not prevent its occurrence.
10. The mother expressed a belief, accepted by the Family Consultant as probably correct, that the paternal family members have themselves been intimidated and controlled by the father’s violence.^[76] That dynamic within the paternal family became so pronounced that, at least as late as the paternal grandmother’s last meeting with the Family Consultant in August 2013, she was the father’s apologist and advocate.^[77] She did not resile from her staunch defence of the father until she herself was severely beaten by him in late September 2013.
11. Indeed, the evidence proved the father’s violent and controlling conduct was not confined to his treatment of the mother. He threatened and attacked members of his own family on numerous occasions.
12. In 2005 the father attacked the paternal grandfather and paternal aunt and caused damage to their house and car. The police and ambulance were called, though perhaps not by the paternal family, because they cleaned up a “considerable amount” of blood before the police arrived and were reluctant to help police with their inquiries. Nonetheless, the father was arrested, his bail was refused, and an apprehended violence order was issued against him because of his continuing threats to harm the paternal family.^[78]
13. In 2008 the father made credible threats to kill or harm the paternal grandparents.^[79]
14. In 2010 the father made “serious threats” to kill his family, which again resulted in his arrest and the issue of an urgent apprehended violence order to protect the family from him.^[80]
15. In June 2013, the police were summoned by the paternal grandfather for help because of the father’s rage within the paternal grandparents’ home.^[81]
16. More recently, in September 2013, the father so seriously assaulted the paternal grandmother that she was hospitalised for weeks with multiple cranial fractures that required corrective surgery.^[82]
17. The father is simply unable to control himself, even in circumstances where rectitude is expected. He screamed at the maternal great grandmother in circumstances that appear innocuous,^[83] and he was agitated in the presence of the Family Consultant, despite attempts by the paternal grandparents to placate him.^[84] He was even described by police as “volatile” while held in custody following his arrest on 27 September 2013 for his assault of the paternal grandmother. The paternal grandfather visited him in custody and the father said to him:^[85]

I’m gonna get five years am I. Well when I get the fuck out I am gonna stab you like you stab me you cunt (sic)

1. Most probably, the father’s propensity for violence is associated with his unstable mental health and his illicit drug use. In both respects he has a long and unfortunate history.
2. The father first attempted suicide when he was only 11 years of age (1994).^[86] He “self-harmed” when he was 16 years of age (1999).^[87] He overdosed in 2008.^[88] He hung himself in September 2012, which the surrounding circumstances demonstrate to have probably been a suicide attempt, notwithstanding the father’s obfuscation.^[89] As recently as January 2013, the father’s treating medical practitioner reported he still had “emotional disregulation and impulse control problems”.^[90]
3. The father’s involvement with illicit drugs extends back as far as his history of mental ill-health. He began using a variety of illicit drugs and drinking alcohol in his early adolescence.^[91] He experienced drug-induced psychosis in 2003.^[92] His perfunctory efforts at rehabilitation in 2003, 2006, 2007, and 2011 failed.^[93]
4. The father was ordered to provide urinalysis reports to verify his abstinence from illicit drugs, but his compliance has been intermittent. Drug screens in September 2012 were positive, but more recent screens between November 2012 and January 2013 were negative. No reports have been produced by the father since January 2013. The paternal grandmother’s excuse that his work commitments precluded it was unconvincing,^[94] particularly since she now acknowledges the father continues to use illicit drugs.^[95]
5. The father commenced prescriptive medication to reduce his craving for alcohol in 2012.^[96] The paternal grandmother asserted the father had since been abstinent from alcohol, but there is no corroborative evidence. Notably, he did not diligently attend relapse prevention therapy^[97] and, as recently as January 2013, his treating medical practitioner diagnosed him with “polysubstance dependence”.^[98]
6. As the Family Consultant explained, without contradiction:^[99]

...the father appears to have been the primary perpetrator or coercive controlling violence towards the mother, and additionally, the perpetrator of violence towards his family...Coercive controlling violence involves an ongoing pattern of threat or force used to dominate a person or for that person to feel threatened or intimidated. Risks associated with this form of violence are thought to increase during occasions when an abusive parent perceives a loss of power and control, for example, during the parental separation or during a court process...

Issues of substance abuse and/or mental health and/or thought and personality disorders will substantially increase the potency of this form of violence...Based on the information available it is the family consultant’s view that the current risks of family violence to [the child] and the mother is extremely high.

1. There can be no doubt the child witnessed some of the father’s violent conduct towards the mother. The mother alleged it and the paternal grandmother acknowledged it.^[100] The paternal grandmother observed the adverse effects of that experience upon the child because, even though only two years of age, he used the words “kill” and “choke” and he was prone to hit and bite.^[101]
2. The sheer unpredictability and volcanic temper of the father are inimical to responsible parenting. The father presents a pronounced risk of at least psychological harm to the child through his prospective exposure to violent conduct perpetrated by the father upon members of the child’s family and other members of the community. The virulence of that risk cannot be satisfactorily attenuated in any way other than severance of the child’s relationship with him.
3. Those conclusions also hold implications for the paternal grandmother. She tolerated, and even sought to defend and excuse, the father’s past violent conduct in the face of compelling evidence. She either deliberately shut her eyes to that evidence or her insight was so limited she failed to realise the significance of it. She freely admits it was because of her own assault by the father – and only because of that assault – that she now has “significant concerns” about the child’s interaction with the father.^[102]
4. If her recent assault by the father failed to bluntly correct her mistaken belief in his abstinence from illicit drugs and her unjustified faith in his emotional stability,^[103] then nothing will. However, the Family Consultant had no confidence the paternal grandmother had so profoundly developed her level of insight just by reason of that incident. There is a real risk the paternal grandmother’s current disaffection with the father may wane with the passage of time and she may revert to her past unwavering support of the father, which would result in her again believing there was no good reason to preclude the child from interaction with the father. That risk is enhanced if the paternal grandmother is receptive to a sincere apology and entreaties by the father.
5. Even though I accept the honesty of the paternal grandmother’s current intention not to have any further relationship with the father,^[104] such may not remain the case indefinitely. The paternal grandfather and paternal aunt have remained in contact with the father, so it is conceivable they could exert some subtle pressure upon the paternal grandmother to relent her current inflexibility.
6. The paternal grandmother previously confidently told the Family Consultant of her unique capacity to “calm [the father] down” without assistance and that she experienced no trouble challenging the father.^[105] Even now she attributes the father’s assault of her in September 2013 to his continued use of illicit drugs rather than his underlying psychological state.^[106] She has always regarded her home as the father’s home and “whole-heartedly” believed the father posed no risk of harm to the child.^[107] She emphasised her intention to support the father “irrespective of the circumstances”, because he is her son.^[108] If she becomes satisfied the father is contrite for his assault of her and he is abstinent from illicit drug use, it is easy to envisage a softening of her attitude towards him.
7. Alternatively, if the paternal grandmother indefinitely maintains her current intention of complete isolation from the father, it demonstrates a pronounced failure upon her part over a prolonged period of years to appreciate the dangers posed by the father to others. She tolerated his misconduct for most of his life. It took his recent assault of her to awaken her to the reality of the problem. Axiomatically, her reasoning suffers from the superficial limitation that she can only conceive implications for the child through her own direct experiences. She has little capacity for introspection, hypothesis and proactivity, which clearly impairs her parenting faculties.

BEST INTERESTS – ADDITIONAL CONSIDERATIONS

1. It is convenient to firstly deal with the mother’s parenting capacity, about which the paternal grandmother was highly critical, but about which the Family Consultant harboured much more mild concern.
2. Aside from the issues of alleged abuse already addressed, the paternal grandmother’s concerns about the mother related to her intoxication by alcohol and illicit drugs, her leaving the child in the care of the maternal great grandmother, her “mental health issues”, and her failure to diligently attend to the child’s physiological needs.^[109] Each of those concerns can be satisfactorily discounted.
3. One concern can be dismissed immediately. There was no evidence at all about the mother suffering from any “mental health issue”. While the paternal grandmother may have a genuine concern on that score, there is no evidence to provide her concern with a reasonable foundation and her bare opinion is, of course, unqualified and inexpert.
4. The mother certainly socialises with friends and consumes liquor at licensed establishments, but that is neither surprising nor a reason for her criticism. She is still only a very young woman and it is common for young men and women to do so. The paternal grandmother’s belief it occurs too frequently is not proven on the evidence. Nor is the paternal grandmother’s suspicion of the mother’s frequent intoxication proven on the balance of probabilities.
5. The mother alleged she has been abstinent from illicit drug use since mid- 2012, and she was not contradicted.^[110] Her regular urinalysis results over the last 18 months have been uniformly negative, with one exception which was satisfactorily explained.^[111] The mother’s proven abstinence was facilitated by her attendance at an alcohol and drug awareness course in August 2012,^[112] which the Family Consultant correctly observed was “very positive”.
6. Her overall parenting capacity has also been improved by her participation in a program offered by the “Brighter Futures” organisation in 2013. Each week over a period of months the mother was coached in parenting techniques and strategies, so that by August 2013 neither the Department or Brighter Futures considered the mother required any further help.^[113] The Family Consultant independently confirmed the Department does not now regard the child as being in need of “alternate placement from the mother”.^[114]
7. The mother has attended to the child’s need for speech therapy. She initially consulted a community health service in January 2013 and then engaged with a speech pathologist in July 2013.^[115] The speech pathologist regards the child’s speech as being “within normal limits”.^[116] The mother also consulted a podiatrist about the child’s “turned-out” ankles and was advised not to use shoe inserts for him just yet.
8. The Family Consultant was more worried by the mother’s lack of insight into her victimisation by the father and how that affects the safety and emotional wellbeing of the child. She considered the mother had only limited insight in that respect, which impaired her ability to provide the child with a “consistently safe, stable and predictable environment”.^[117] That remains a valid concern because, despite the mother receiving domestic violence counselling in August 2012,^[118] she returned to live with the father for a short period in March and April 2013 and subjected herself and exposed the child to more family violence at the hands of the father.
9. All that can presently be said is that the mother professes a commitment not to allow the father to have any further personal involvement in the lives of her or the child – just as the paternal grandmother currently professes. The mother’s statement of commitment is no less reliable than that of the paternal grandmother, so the risk of harm to the child in the mother’s care is no more pronounced than it is if he was to live with the paternal grandmother instead.
10. Although the paternal grandmother’s lack of insight has already been mentioned in connection with the father’s violence, it is appropriate at this point to elaborate her lack of insight in order to thoroughly demonstrate the limitations of her parenting capacity. There are many aspects of the evidence that eloquently prove those limitations.
11. Importantly, the Family Consultant had much to say about it, all of which passed without challenge. The Family Consultant described the paternal grandmother’s capacity for clear appreciation of the child’s adverse experiences as “quite limited” because she could not accept the father’s past conduct played any role in the curtailment of the child’s interaction with him and she attributed blame to others.^[119]
12. The paternal grandmother was rightfully disgraced by her depiction in video footage engaged in the act of stapling bank notes to the naked torso of the father. It was nothing short of bizarre behaviour by a person of the paternal grandmother’s maturity and intelligence. Even though the paternal grandmother failed to appreciate the significance, the video serves to demonstrate the extent of her willingness to compromise her integrity simply to acquiesce to the demands of the father, because she still participated in the spectacle against her better judgment.^[120]
13. Moreover, the paternal grandmother vehemently maintained her belief in the child’s sexual abuse by the mother, even though her belief hinged entirely upon the father’s version of events, in which she ultimately admitted she could repose no weight. No person considering the available evidence objectively could reasonably hold to the paternal grandmother’s belief.
14. The paternal grandmother also told the Family Consultant she could not envisage the child spending time with the mother other than in a professional contact centre because she was solely to blame for any harm caused to the child.^[121] Discounting the father’s dominant role in the causation of harm to the child in that way is quite astonishing.
15. A considerable amount of the paternal grandmother’s evidence was directed to the mother’s electronic communication over the internet, which the paternal grandmother suggested proved the mother’s immorality. She previously admitted to the Family Consultant that she “stalked” the mother by following her internet activity,^[122] and little seems to have changed.
16. It is difficult to imagine how the paternal grandmother could support and promote the child’s continuing relationship with the mother if the child was to live with the paternal grandmother. Apart from her opinion about the mother’s sexual abuse of the child, she continues to hold adverse views about the mother as a person and parent. After a long pause in cross-examination she could not bring herself to say anything positive at all about the mother, either as a person or parent. If the child lived with the paternal grandmother the child would most probably come to appreciate her belief in the mother’s disrepute, even if the paternal grandmother did abstain from direct denigration of her.
17. By comparison, there is reason to suspect the child can continue to enjoy a happy and uncomplicated relationship with the paternal grandmother if he continues to live with the mother. The mother described a positive relationship between the child and paternal grandmother,^[123] the Family Consultant witnessed the mother positively encourage the child to greet and enjoy some time with the paternal grandmother,^[124] and it is common ground the interim parenting orders have been implemented without incident.
18. The paternal grandmother said in cross-examination she now intended to delay any decision about her return to work for about 12 months if orders are made for the child to live with her instead of the mother, since she now realises the transition would likely cause the child some emotional disturbance. Her realisation of that fact was belated indeed because she deposed only weeks ago to her intention to resume full-time employment very soon,^[125] leaving the care of the child to be shared between her, the paternal grandfather, the paternal aunt, and other relatives.^[126]
19. Historically, the paternal grandmother has always worked long hours.^[127] She obviously wants to return to full-time work at some point, but when that occurs would be determined by her opinion about when the child would be able to adequately cope with that additional change in his care arrangements. The other members of the paternal grandmother’s household are also currently in full-time employment.^[128]
20. Of course, there is no need to expose the child to the ructions of either a change in his residence or variation of his carers within a new household. The mother is not employed and is available to primarily care for him. Although the mother plans to secure some casual work, she intends her employment will coincide with the child’s attendance at pre-school or school.

CONCLUSIONS AND ORDERS

1. The presumption of equal shared parental responsibility does not apply because of the incontrovertible evidence about the father’s commission of family violence (s 61DA(2)).
2. The allocation of parental responsibility for the child is necessarily bound to the decision about the child’s residential placement.
3. The child should live with the mother. There is no doubt he is primarily attached to her.^[129] The child even seems more engaged with the father than with the paternal grandparents.^[130] The evidence does not demonstrate the child’s interests would be better served by living with the paternal grandmother. The limitations upon the paternal grandmother’s parenting capacity are just as pronounced as, if not more pronounced than, those upon the mother’s parenting capacity. The child will be better able to maintain healthy, loving relationships with the mother and paternal grandparents if he continues to live with the mother. Additionally, and importantly, even if the risk is not considered to be unacceptably high, the risk of the child being exposed to future family violence perpetrated by the father is more evident if he lives with the paternal grandmother than it is if he lives with the mother.
4. The residence of the mother and child with the maternal great grandmother, pursuant to the interim orders made in June 2013, certainly stabilised their lives and eradicated much of the chaos that previously existed. The maternal great grandmother told the Family Consultant that residential arrangement was able to endure indefinitely,^[131] which the mother confirmed during her cross-examination.
5. One wonders in such circumstances, therefore, whether the child’s residence with the mother should be made conditional upon their continued residence with the maternal great grandmother, either permanently or temporarily. Significantly, such an order was not proposed by either party or the Independent Children’s Lawyer, nor was it recommended by the Family Consultant. The improvements demonstrated by the mother, evident from her abstinence from illicit drug use, the enhancement of her general parenting capacity, and her acquisition of some limited insight into the harm caused to the child by his exposure to family violence, tend to militate against the imposition of such a condition upon the child’s residence with the mother.
6. Returning to the allied issue about the allocation of parental responsibility for the child, the father should not share in the exercise of that parental responsibility. His long-standing violent coercion of the mother and his more recent destruction of the paternal grandmother’s trust in him disqualify his participation in consultations about decisions affecting the child’s life.
7. The real question to be addressed is whether the mother, as the child’s residential carer, should have sole parental responsibility for him, as the mother and Independent Children’s Lawyer both proposed and the Family Consultant recommended, or whether the paternal grandmother should share equally with the mother in his parental responsibility, as the paternal grandmother proposed.
8. It should initially be noted that the paternal grandmother has never been invested with any parental responsibility for the child, because she is not his “parent” (s 61C). It is therefore pertinent to inquire why she should now attain it, but no rational argument was advanced in answer to that inquiry.
9. The paternal grandmother said in cross-examination she considered the mother to be immature and she perceived difficulty in them reaching agreement on matters relevant to the child’s welfare and development. She said in cross-examination:

I don’t have a relationship with the mother. We are two different people.

and

We don’t communicate, but we don’t have shouting matches.

1. While the mother and paternal grandmother may not indulge in overt hostility, the dichotomy in their views about morality and their mutual pessimism about constructive co-operation does not auger well for their future consensus. The child’s best interests dictate that the mother should have sole parental responsibility for him.
2. There is no good reason to make the other orders proposed by the Independent Children’s Lawyer that would impose duties upon the mother to keep the paternal grandmother fully informed about the child as a salve for her deprivation of a share in the child’s parental responsibility.^[132]
3. That then leaves for determination the nature of the child’s future interaction with both the father and paternal grandmother.
4. There should be a complete embargo on any personal interaction between the child and the father. Upon that point there was universal agreement between the mother, paternal grandmother, Independent Children’s Lawyer, and Family Consultant. There was also agreement between the mother, paternal grandmother, and Independent Children’s Lawyer about limitation of the father’s interaction with the child to occasional correspondence. Orders to that effect are made.
5. To facilitate operation of the embargo, an injunction is imposed restraining the father from attending at or near to the homes of the mother and paternal grandmother and any educational institution attended by the child. An existing apprehended violence order protecting the paternal grandmother from the father permits the father to lawfully attend at her home, provided he has not ingested alcohol or illicit drugs, the terms of which represent an amendment of the interim order.^[133] The paternal grandmother, and more importantly the child when he is with her, requires greater protection from the father.
6. Unlike in respect of the father, there was some disparity in views about the time the child should spend with the paternal grandmother.
7. The Independent Children’s Lawyer proposed that, subject to a period of graduation, the child should spend each alternate weekend with her.^[134] That proposal amounts to “substantial and significant time” (s 65DAA(3)). Although the paternal grandmother did not directly engage the debate, since she did not resile from her proposal that the child should live with her, she obviously sought to maximise the time spent by the child with her.
8. The mother proposed that the child should only visit the paternal grandmother once per month for a period of four hours, and further, that every visit for the next two years be supervised.^[135]
9. I reject their proposals for numerous reasons.
10. The mother’s proposal was not even expressly floated until final submissions, so it deprived the paternal grandmother and Independent Children’s Lawyer of the opportunity to ask questions of the mother and Family Consultant about it. The mother’s counsel hypothetically asked the Family Consultant whether the child could maintain a meaningful relationship with the paternal grandmother if he only saw her infrequently, such as monthly, but the Family Consultant answered that it depended upon the quality of their time together. That alone is an insufficiently sound basis to wind-back the existing regime so tightly.
11. Presently, the child spends four hours with the paternal grandmother each week, without any supervision. There is no need for their visits to maintain that degree of frequency, but equally, no aspect of the evidence militates in favour of such acute restriction of the relationship for which the mother belatedly advocated. It should be noted that the mother’s proposal throughout the trial, at least until final submissions, was for the child to spend four hours per week with the paternal grandmother, slipping back to four hours per fortnight once the child starts school.^[136]
12. Nor does the evidence lend any support to the Independent Children’s Lawyer’s proposal. No rational argument could be made to justify a vast increase in the amount of time presently spent by the child with the paternal grandmother. It was as if the Independent Children’s Lawyer considered it appropriate to elevate the relationship between the child and paternal grandmother to one akin to a filial relationship, for which there was no warrant. The elimination of the father from the child’s life does not of itself justify the artificial substitution of another paternal relative for the father as a putative parent in the child’s life. The Independent Children’s Lawyer was impelled to concede his proposal was quite arbitrary, since it was not the subject of any evidence at all. As was the case with the mother’s final proposal, the first that was known of it was its revelation during final submissions.
13. The evidence permits some compromise between the proposals of the mother and Independent Children’s Lawyer. The child has a loving relationship with the paternal grandmother, which he should retain. There is no need for them to spend time together every week. Their enforced separations for prolonged periods in the past have not harmed their relationship.^[137] Nor is there any need for their visits, when they occur, to be confined to only several hours. The mother will enjoy relief from the burden of providing full-time care and supervision to the child. She presently seeks such relief by having the maternal great grandmother care for the child while she socialises with friends.
14. It is appropriate for the child to spend one weekend every four weeks with the paternal grandmother, with such visits to commence on Saturday morning and conclude on Sunday afternoon. The orders make provision for a short transitional arrangement between that and the existing interim regime.
15. The mother and paternal grandmother shall exchange the child between them or their nominees at the McDonald’s Restaurant at Suburb C. They both agreed to that venue during their oral evidence.
16. As for the suggested imposition of supervision upon the child’s visits with the paternal grandmother for the first two years, there was no viable basis for it.
17. The mother submitted the reasons for the proposal were, firstly, the paternal grandmother’s “poisonous views” about the mother, which it was impliedly contended a supervisor could prevent from being impressed upon the child, and secondly, her fear the paternal grandmother would not keep the child away from the father.
18. There was no evidence the child has yet been contaminated by the paternal grandmother’s adverse views of the mother. I do not accept the paternal grandmother would vindictively set out to achieve that result. It is plausible the child could impute the paternal grandmother’s adverse views about the mother from her conversation and demeanour, but supervision for two years is unlikely to avert that risk. Instead, an order is made restraining the mother and paternal grandmother from allowing the child to be exposed to denigration of any of the parties.
19. As for the prospect of the paternal grandmother relaxing her current antipathy towards the father and allowing the child to interact with him, that chance is best foreclosed by making the child’s expenditure of time with the paternal grandmother conditional upon her observing an injunction precluding such interaction.
20. Provision is also made for the paternal grandmother to communicate with the child by telephone for a short period once per week. The Independent Children’s Lawyer proposed it occur twice per week,^[138] but once is enough. The mother did not object to any telephone communication between the child and paternal grandmother occurring at all.
21. The mother and paternal grandmother are required to keep one another informed of their respective contact details.
22. No order is made purporting to compel any party to seek out and accept therapeutic counselling, as the Independent Children’s Lawyer proposed.^[139] There is no power to make such a final, unconditional order (see Marriage of L & T [1999] FamCA 1699; (1999) 25 Fam LR 590 at 603-606; Jacks & Samson [2008] FamCAFC 173; (2008) FLC 93-387 at [200]- [226]), and no useful purpose is served by making participation in such therapy a pre-condition to either the child’s residence with the mother or his expenditure of time with the paternal grandmother.

I certify that the preceding one-hundred and seventy-one (171) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 7 January 2014.

Associate:

Date: 7 January 2014

^[1] Mother’s affidavit, paras 31-34

^[2] Second Family Report, paras 11-12; Mother’s affidavit, para 50

^[3] Second Family Report, para 22

^[4] Mother’s affidavit, paras 85-86

^[5] Second Family Report, paras 22, 87

^[6] Mother’s affidavit, paras 82-83; Second Family Report, para 21

^[7] Exhibit C

^[8] Exhibits A and B

^[9] Exhibit M5

^[10] Second Family Report, page 3, para 68

^[11] Second Family Report, para 27

^[12] Notation A made on 23 August 2013

^[13] Notation C made on 23 August 2013

^[14] Notation B made on 23 August 2013

^[15] Exhibit C

^[16] Exhibit ICL2

^[17] Second Family Report, para 115

^[18] First Family Report, para 35

^[19] First Family Report, para 57

^[20] First Family Report, para 11

^[21] Second Family Report, paras 12-13

^[22] Paternal grandmother’s first affidavit, para 53

^[23] Paternal grandmother’s first affidavit, paras 52, 54

^[24] Paternal grandmother’s first affidavit, para 8

^[25] Mother’s affidavit, para 68

^[26] Mother’s affidavit, para 68; Second Family Report, para 35

^[27] Mother’s affidavit, paras 65, 70

^[28] Paternal grandmother’s first affidavit, paras 52, 54

^[29] Mother’s affidavit, para 65

^[30] Second Family Report, para 34

^[31] Mother’s affidavit, para 65

^[32] Order 6(b) made on 23 August 2013

^[33] First Family Report, para 77

^[34] Paternal grandmother’s first affidavit, para 38

^[35] Second Family Report, para 89

^[36] Second Family Report, para 89

^[37] First Family Report, para 77

^[38] Second Family Report, para 93

^[39] Order 4 made on 12 June 2013

^[40] Second Family Report, para 22

^[41] Second Family Report, para 93

^[42] First Family Report, para 75

^[43] First Family Report, para 79

^[44] Paternal grandmother’s first affidavit, para 11

^[45] First Family Report, para 78

^[46] Second Family Report, para 72

^[47] Second Family Report, para 107

^[48] Second Family Report, para 37

^[49] Second Family Report, para 37; Magellan Report, page 6

^[50] Paternal grandmother’s third affidavit, para 57

^[51] Second Family Report, para 38

^[52] Paternal grandmother’s first affidavit, Annexure H

^[53] Mother’s affidavit, para 76; Second Family Report, para 41

^[54] Second Family Report, para 38

^[55] Second Family Report, para 42

^[56] Second Family Report, para 38

^[57] Paternal grandmother’s first affidavit, para 49

^[58] Paternal grandmother’s first affidavit, para 49

^[59] Mother’s affidavit, paras 65-66; Second Family Report, para 52

^[60] Magellan Report, page 7

^[61] Mother’s affidavit, para 77; Second Family Report, para 43

^[62] Second Family Report, para 39

^[63] Mother’s affidavit, para 78; Second Family Report, para 44

^[64] First Family Report, para 22

^[65] Mother’s affidavit, para 10; First Family Report, para 23

^[66] First Family Report, paras 26-27; Magellan Report, pages 1-2

^[67] Mother’s affidavit, paras 25-26; First Family Report, paras 27, 41

^[68] First Family Report, para 48

^[69] First Family Report, para 13(vi)

^[70] Second Family Report, para 52

^[71] Magellan Report, page 8; First Family Report, para 44

^[72] First Family Report, para 67

^[73] Paternal grandmother’s first affidavit, para 63

^[74] First Family Report, para 25; Mother’s affidavit, paras 9-10

^[75] Paternal grandmother’s first affidavit, para 11

^[76] First Family Report, paras 25; Second Family Report, paras 110-111

^[77] Second Family Report, paras 78, 88, 90, 91, 92, 108, 109, 110

^[78] First Family Report, para 42

^[79] First Family Report, para 47

^[80] First Family Report, para 43

^[81] Second Family Report, paras 58, 90

^[82] Paternal grandmother’s third affidavit, para 62

^[83] First Family Report, para 62

^[84] First Family Report, paras 39, 71, 85

^[85] Exhibit M3

^[86] First Family Report, para 47

^[87] First Family Report, para 46

^[88] First Family Report, para 47

^[89] First Family Report, paras 49-51

^[90] Second Family Report, para 74

^[91] First Family Report, para 52

^[92] First Family Report, para 47

^[93] First Family Report, paras 52-53

^[94] Second Family Report, paras 71-72

^[95] Paternal grandmother’s third affidavit, paras 72, 75

^[96] First Family Report, para 54

^[97] Second Family Report, para 73

^[98] Second Family Report, para 74

^[99] First Family Report, paras 91-92

^[100] Paternal grandmother’s first affidavit, para 11

^[101] Paternal grandmother’s first affidavit, paras 44-45

^[102] Paternal grandmother’s third affidavit, para 71

^[103] Second Family Report, para 90

^[104] Paternal grandmother’s third affidavit, paras 69-70

^[105] Second Family Report, paras 91, 93

^[106] Paternal grandmother’s third affidavit, paras 72, 75

^[107] Second Family Report, paras 91-92

^[108] Second Family Report, para 94

^[109] Paternal grandmother’s third affidavit, paras 77, 79, 80, 90, 99, 102, 103

^[110] Mother’s affidavit, paras 91-93; First Family Report, paras 31-32;

Second Family Report, paras 63-64

^[111] Exhibit ICL1

^[112] Mother’s affidavit, para 39

^[113] Mother’s affidavit, paras 104, 107, 109, 110

^[114] Second Family Report, para 47

^[115] Mother’s affidavit, paras 105-106, 111

^[116] Exhibit M4

^[117] First Family Report, para 81; Second Family Report, paras 67, 112, 113

^[118] Mother’s affidavit, para 40

^[119] Second Family Report, paras 75, 78, 88, 108, 109

^[120] Second Family Report, para 85

^[121] Second Family Report, paras 28, 92

^[122] First Family Report, para 79

^[123] Second Family Report, para 60

^[124] Second Family Report, para 97

^[125] Paternal grandmother’s third affidavit, para 1, paras 1-3 (page 14)

^[126] Paternal grandmother’s third affidavit, para 4 (page 14), paras 119, 122

^[127] Mother’s affidavit, paras 18, 115

^[128] Mother’s affidavit, paras 115-116; Paternal grandmother’s third affidavit, paras 119-120

^[129] Second Family Report, para 115

^[130] First Family Report, para 87

^[131] First Family Report, para 65

^[132] Exhibit ICL2, Orders 9-10

^[133] Exhibits M1 and M2

^[134] Exhibit ICL2, Order 5

^[135] Exhibit M5, Orders 4, 6

^[136] Amended Application 30/8/13, Orders 5-6

^[137] Paternal grandmother’s third affidavit, paras 104-105

^[138] Exhibit ICL2, Order 7

^[139] Exhibit ICL2, Order 11

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SUPREME COURT OF NEW SOUTH WALES

When can a CAVEAT withstand an application for removal when the Caveator has NO REGISTRABLE INTEREST IN LAND?

The general answer to this proposition is it cannot    ...   except, as Ms McIntosh submitted, in potentially ONE limited circumstance.....

In Ryan v Kalocsay [2009] NSWSC 1009 (10 August 2009) Ms McIntosh appeared for the Defendant on a Notice of Motion filed by the Plaintiff.  The Plaintiff\'s application was to have a caveat lodged by the Defendant removed.  The property was the object of the substantive proceedings.  Ms McIntosh quite rightly conceded that the Defendant did not have a registrable interest in land, however, as said by His Honour Slattery at the hearing, Ms McIntosh may have stated the only answer in defence of its removal.  The proposition is, supported in law, that a caveat may be ordered to stay in place if there is only a short time before trial and the balance of convenience so dictates.

The outcome of this motion was that after discussions between the parties and submissions before His Honour, the caveat was ordered to be removed however the Plaintiff entered into an undertaking not to increase borrowings against the property beyond an agreed amount.  It was a satisfactory outcome for all parties.Quoting from the case,starting at paragraph 10:

\"In answer to these submissions Ms McIntosh, who appears for the plaintiff, has effectively conceded the underlying legal merits of Ms Mahmud\'s submissions on this point. She takes a different tack and submits that the balance of convenience requires the caveat to remain in place because there is now only a short time before trial. She refers to the decision of Young J in Beneficial Finance Corporation v Multiplex Construction Pty Ltd [1995] 36 NSWLR 510, and in particular to page 532 where his Honour said:

Again the Court will decline to remove a caveat for a short period of time even if doubtful about the existence of a proprietary interest: see Martyn v Glennan [1979] 2 NSWLR 234 and Kingstone Constructions Pty Ltd v Crispel Pty Ltd (1991) 5 BPR ¶11,987 at 11,991. Thus a proprietary interest in land in the common or garden sense of that term is not always required though at least some of these cases may be explained by the practice of this Court not to determine borderline cases at an interlocutory stage so that if there is an arguable case that the caveator has an interest in land the court allows the caveat to remain until the trial exacting an undertaking as to damages because of the inadequacies of s 74P of the Real Property Act 1900.

11 The two cases referred to by Young J in Beneficial Finance Corporation v Multiplex Construction Pty Ltd provide substantial support for Ms McIntosh’s submission. In Martin v Glennan & Anor (1979) 2 NSWLR 234 the Court held in relation to the former s 97(5) of the Real Property Act that where proceedings are on foot by the caveator to enforce the interest which the caveat has been lodged to protect, there is no bar to the exercise of the Court\'s discretion to remove the caveat. The principles applicable to a case where a caveator has commenced proceedings are similar to those where the caveator has not commenced proceedings. Justice Waddell in Martin v Glennan says that:

\"The correct principles to apply are those appropriate to an interim injunction, that is to say that the caveat should be removed unless the caveator can establish that he would be entitled to an injunction restraining the proprietor from dealing with the land until the determination of the proceedings brought by the caveator\"

12 Ms McIntosh says that here the caveator would be entitled to an interim injunction restraining the registered proprietor from dealing with the land until the determination of the proceedings and therefore the caveat should not be removed now. However both Glennan v Martin and Beneficial Finance are both authority for the proposition that the Court looks at the question as a matter of the balance of convenience.

Jill McIntosh of McIntosh Chambers practices in a variety of Jurisdictions including:

Family Law (Parenting and Property/Defacto, married and same sex couples)

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Ms Jill McIntosh was called to the Bar in November 2005 and is admitted as a Lawyer in the Supreme Court of New South Wales and the High Court of Australia.

Prior to her successful career in law, Ms McIntosh worked for about 15 years in various management roles in corporations such as Hewlett Packard, Columbia Pictures, Amway of Australia and EMI records.

Ms McIntosh has developed a general practice and competently undertakes work in a variety of jurisdictions.

Ms McIntosh accepts briefs to appear in the  Local Court (civil and criminal) to appellate advocacy in the Supreme Court.

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