Father Opposes Mother's Application for Sole Parental Responsibility

Kalmus & Hocking [2021] FedCFamC2F 348 (11 November 2021)

The mother sought sole parental responsibility and the father sought equal shared parental responsibility.  The mother seeks indefinite supervision and on the other hand, the father seeks progression to unsupervised time.  The Court, in determining whether the father should have unsupervised time with the child, assessed the father’s repeated derogatory remarks amounting to family violence and the presumption of equal shared parental responsibility. 

Facts:

These proceedings relate to the child X born in 2016 (“the child”).  The parties are the parents of the child who has lived in the primary care of the mother, Ms Hocking (“the mother”) since his birth.  The father Mr Kalmus (“the father”) has spent time with the child somewhat sporadically since his birth.  The application by the father seeks parenting orders to ensure that he has a meaningful role in the child’s life and spends regular time with the child while the mother seeks sole parental responsibility. 

The father was cross-examined at length and in detail as to his history of criminal offending and the assertions made about family violence in the mother’s affidavit material.  Under cross-examination, the father admitted many abusive, threatening and demeaning statements to and about the mother, her husband and family.  He made statements suggesting that he had gained insight into past shortcomings.  He commented at times that he had been “young and silly” and “that it had been a bad period in his life”.

The mother contended that the father will put the child at risk of physical harm by driving when influenced by alcohol or not licensed to drive; the father does not ensure the child is toileted appropriately and is a poor role model, urinating in public; the father is physically violent and associates with people who have assaulted him and he fears will again assault him, putting the child at risk of harm; the father’s residence is not safe and the father makes inappropriate statements and remarks to the child, which will confuse the child and inappropriately influence him against the mother.  The mother contends that the father should spend time with the child, but supervised indefinitely. 

The reports of the supervised time of the father through the G Children's Homes with the child were largely positive reports; indicating the father and child had a meaningful and loving relationship, and mostly appropriate conduct and communication by the father.  However, the mother emphasised in her evidence a number of times that the child had been settled and thriving, because of the supervised time, implying it would be otherwise if time was unsupervised.

Issue:

Whether or not the father should have unsupervised time with the child and if so, how frequently and for how long.

Applicable law:

Family Law Act 1975 (Cth) s 60CC(2) - requires the Court to make orders that are conducive to a child having a meaningful relationship with both parents, but not if this would detract from necessary protection of the child from physical or psychological harm or exposure to abuse, neglect or family violence. 

Aldridge &Keaton [2009] FamCAFC 229; (2009) FLC 93-421 - provides that the assessment required also involves consideration of the many considerations in section 60CC(3) as relevant to the circumstances of any given case, but there is no ranking of importance or order of consideration of the relevant considerations. 

Goode & Goode (1994) FLC92-506 - provides that all the considerations in section 60CC are to inform what is in the best interests of a child, which is relevant to making an order for equal shared parental responsibility. 

Grant & Grant (1994) FLC 92-506 - the Court had expert evidence from a forensic psychiatrist, of the kind his Honour suggested was necessary during the hearing to meet the standard of proof to follow Re Andrew ratio. 

Marvel & Marvel [2010] FamCAFC 10 - provided that the evaluation of risk of harm required by subparagraphs (a) and (b) of section 60CC(2) is a challenging one to be undertaken on the basis of findings of fact about the nature and degree of risk of harm to the child and the likelihood of it eventuating. 

Moose & Moose [2008] FamCAFC 108 - held that "whilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored”. 

Re Andrew [1996] FamCA 43 - relied upon in contending that the father’s conduct had impacted on the mother’s mental health and capacity to care for the children. 

Analysis:

There is no evidence of physical violence or assault of the mother during her relationship with the father or since separation.  Some of the admitted statements by the father about the mother and her family are capable of being characterised as repeated derogatory taunts, which is an example of behaviour that may amount to family violence, within the meaning of that term as provided in section 4AB of the Act. 

Without increased and unsupervised time, the child would never experience the father other than in an abstract environment for brief periods, far removed from daily parent/child relations. Indefinite supervised time would likely be limited to recreational or play settings (based on the evidence before the Court) and this will not permit the child to experience all beneficial facets of the child/parent relationship.  There is no evidence of logistical barriers that would make either equal time or significant time impracticable.  However, the child’s age and limited time to date between father and child (supervised time in the last 12 months), together with the fact that the mother has been the primary carer, dictates that time should slowly and progressively increase

Conclusion:

All previous orders concerning the child are discharged.  The mother should have sole parental responsibility for the child subject to Order 3 hereof.  Notwithstanding order (2), the mother shall consult with the father in relation to decisions concerning the child’s long-term care, welfare and development and seek to reach agreement with him.  Should the mother and father fail to agree and subject to any subsequent court order, the mother’s decision in relation to such issue/s will apply, and the filing of a subsequent application by the father seeking judicial determination of the issue/s shall not prevent the mother from in the first instance making a decision pursuant to this order.  The child’s time with father is to gradually progress to unsupervised and greater time.