Abberley & Clement (No 2) - [2023] FedCFamC2F 1508

Federal Circuit and Family Court of Australia

(DIVISION 2)

Abberley & Clement (No 2) [2023] FedCFamC2F 1508

File number(s):	CAC 2180 of 2019
Judgment of:	JUDGE W J NEVILLE
Date of judgment:	29 November 2023
Catchwords:	FAMILY LAW – Parenting – significant history of family violence – significant and independent evidence from the Mother regarding her deep-seated anxiety regarding any contact with the Father including any introduction of contact between the Father and the young child – the child does not know his Father at all or even of his existence – Mother agrees to some type of recognition contact between Father and son subject to guidance from child psychologist to inform the child of the [biological] Father’s existence.
Legislation:	Family Law Act 1975 (Cth), ss 60CC(2A)
Cases cited:	AMS v AIF (1999) 199 CLR 160 Collu & Rinaldo [2010] FamCAFC 53 Fox v Percy (2003) 214 CLR 118 Isles v Nelissen (2022) 367 FLR 338; (2022) 65 Fam LR 288 Mazorski v Albright (2007) 37 Fam LR 518 McCall v Clark (2009) 41 Fam LR 483 Moose & Moose (2008) FLC 93-375 Partington v Cade (No.2) (2009) 42 Fam LR 401 Sigley v Evor (2011) 44 Fam LR 439 U v U (2002) 211 CLR 238 Vontek & Vontek [2017] FamCAFC 28
Division:	Division 2 Family Law
Number of paragraphs:	170
Date of last submission/s:	27 September 2023
Date of hearing:	5 – 6 July 2023
Place:	Canberra
Counsel for the Applicant	Mr J Masters
Solicitor for the Applicant	KPW Lawyers
Counsel for the Respondent	Ms M Davis
Solicitor for the Respondent	KJB Lawyers
Independent Children’s Lawyer	Legal Aid ACT

ORDERS

CAC 2180 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR ABBERLEY Applicant
AND:	MS CLEMENT Respondent

order made by:	JUDGE W J NEVILLE
DATE OF ORDER:	29 November 2023

ON A FINAL BASIS, THE COURT ORDERS BY CONSENT THAT:

The Mother have sole parental responsibility for the child X born in 2019 (‘the child’).

THE COURT FURTHER ORDERS THAT:

The child live with the Mother.
The child spend no time with the Father.
Pursuant to Section 11(1)(b) of the Australian Passports Act 2005 (Cth) the child, X born in 2019, be permitted to have an Australian passport or a travel-related document (herein “an Australian travel document”) as defined by Section 6 of the Australian Passports Act 2005 (Cth) and be permitted to travel internationally.
The Mother’s exercise of sole parental responsibility in Order 1 includes that the Mother is at liberty to do all acts and sign all documents necessary, and have such authority as is necessary pursuant to Section 11(b) of the Australian Passports Act 2005 (Cth), to procure a valid Australian travel document for the child without the signature or consent of the Father, including that the Mother is authorised to sign such documents as may be required on behalf of the Father.
The child’s Australian travel document shall be held by the Mother.
Pursuant to Section 68B of the Family Law Act, the Father is restrained by injunction from the following:
a.Contacting or attempting to contact (including by text message, telephone, email or any other means including but not limited to via social media) the Mother and/or the child other than as provided for in these Orders;
b.Doing an act or thing in order to locate or attempt to locate the whereabouts of the Mother and/or the child including but not limited to their place of residence, the Mother’s place of employment and/or any school, or educational institution attended by the child from time to time.
c.Approaching the Mother and/or the child, or being within 100 metres of the Mother and/or the child;
d.Dwelling in or frequenting the locale of the child’s place of residence, school or extracurricular activity if it becomes known to the Father;
e.Removing or attempting to remove the child from the care of the Mother or third-party carer of the child; and
f.Engaging, encouraging or allowing any other person to do any of the above.

g.The above Order is an order made for the personal protection of the Mother and the child and is an order pursuant to Section 68C of the Family Law Act to which the power of arrest without warrant attaches.

h.The Section 68B order is made for the personal protection of the Mother and the child and will remain in place and in force until the child turns 18 years.

i.The Mother shall forthwith identify and attend upon an appropriately qualified child psychologist (“the psychologist”) to assist her and the child in identifying his biological Father.

j.Upon obtaining the assistance of the psychologist as per Order 10 above, the Mother shall inform the child that the Father is his biological Father having regard to any recommendations of the psychologist regarding how and when this information is shared with the child.

k.The Mother shall inform the Father via email within 14 days of the child being informed that the Father is his biological Father.

l.On two occasions each year, prior to the child’s birthday and in the weeks prior to Christmas, the Father is at liberty to send to the child an email or parcel containing a photo of himself, a letter, a card and/or gift.

m.When writing to the child as per Order 13 above, the Father is to ensure his communication does not refer to any dispute he has with the Mother and does not contain any negative or otherwise derogatory content regarding the Mother, her partner or the Mother’s extended family.

n.In the event the Father chooses to send the child a letter or card by mail, he is also to email the Mother a digital copy of that communication so that a record can be retained by both parents.

o.The Mother is at liberty to review the contents of any email or parcel she receives from the Father for the child pursuant to Order 13 above to ensure that that the Father has complied with the requirements of Order 14 above.

p.Upon the child being informed that the Father is his biological Father as per Orders 10 & 11 above, the Mother must give any email or parcel received in accordance with Order 13 above to the child within 3 days of receipt and explain to the child that the email or parcel is from his biological Father (and only where any communication contained therein complies with Order 14 above).

q.In the event that the Mother decides not to provide any email or parcel from the Father (or some part thereof) to the child, within 14 days of receiving the email or parcel she is to advise the Father of that decision and the reason for that decision via email.

r.On two occasions each calendar year, being no later than 30 January and 30 July, the Mother will send to the Father an email that provides a brief outline of the child’s education, health and development as well as any current interests of the child to assist the Father in his communication to the child.

s.To facilitate the above communication to and about the child, the Mother will within 14 days of the date of these Orders nominate an email address and a postal address for the delivery of any parcels NOTING that at the time of this order, the Mother nominates DD Street, Suburb EE, for the delivery of parcels and intends to set up a new dedicated email contact.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 29 November 2023.

JUDGE W J NEVILLE

Introduction

This parenting matter, which has an immensely problematic past, concerns what (if any) parenting Orders the Court considers to be in the best interests of now 4-year-old X (born 2019). The turbulent history of the matter was set out in detail in the Court’s reasons in the interim decision made in October 2021. I need not, and will not, repeat what is there set out other than to note that the Court permitted the Mother to relocate away from the Town S region, and also from the City KK area, to the broadly defined Region LL.

Throughout the final hearing, the Mother (who has a younger son, FF, aged one year or so, with her new partner, Mr GG) continued to run (as she had done at the interim hearing) a “no contact” case against the Father. X not only has no relationship with the Father but also, he does not know of his existence and identity.

The matter is essentially one of evaluating closely various risks. Many of the risk factors were considered in the interim judgment. They included the Father’s drug-taking during the relationship (in which the Mother participated), his drug-taking post the relationship and his failure to undertake drug-testing as requested by the Independent Children’s Lawyer (“the ICL”), his abuse of the Mother during and after the relationship and stalking of the Mother. The Mother’s acute anxiety arising from the relationship with the Father endures, even while undergoing regular counselling from her psychologist, and is “triggered” even by mention of the Father’s name. The Mother’s anxiety is heightened or further “triggered” by the prospect (or even the thought) of X spending any time, or having any indirect contact, with the Father. The Mother further fears the risk of psychological pressure, potentially leading to abuse, of X should he start spending time with the Father. And finally, given X’s young age, the Mother fears the child, inadvertently, giving information to the Father that would lead him to learn of the Mother’s location. This could lead, in the Mother’s view, to the Father returning to stalking her as he had done in the past, shortly after the relationship ended.

For his part, the Father says that he would not pursue the Mother in any way and that his only interest is having a relationship with his son.

For the reasons that follow, the ICL’s proposed Orders sought are in the child’s best interests.

Applicant’s Orders Sought

The Applicant’s Minute of Orders Sought were contained in his Amended Initiating Application filed 27^th June 2023; they were as follows (emphasis in original):

Sole Parental Responsibility
a.That the mother shall have sole parental responsibility for the child [X] born [in] 2019 (‘the child’).
b.That notwithstanding the above Order, prior to making any decision about a major long-term issue concerning the child, the mother shall:
c.Advise the father in writing of the decision that she is considering making and her thoughts on the matter;
d.Invite the father’s input and allow at least fourteen days, save and except in the circumstances of an emergency, for him to advise of his views in writing;
e.Consider any views the father offers within the above timeframe; and
f.Advise the father of her decision within two (2) days of making the decision with brief reasons.

Live with
a.That the child shall live with the mother.
Spend time with
a.That the child spend time with the father at all times as may be agreed between the parties in writing, but failing agreement, as follows:
b.For the first four (4) visits, each alternate Sunday from 1.00pm to 2.00pm;
c.For the next four (4) visits, each Sunday from 1.00pm to 2.00pm;
d.For the next four (4) visits, each Sunday from 1.00pm to 2.30pm; and
e.Thereafter each Sunday from 1.00pm to 3.00pm.

f.For the purposes of time in accordance with Order 4, the father’s time shall be supervised by [JJ Contact Centre] and the father shall be responsible for the costs of the supervision and each parent shall be responsible for their respective intake appointments.
g.Each party shall within 7 days of the date of these Orders do all things and acts and sign all necessary documents to commence supervised time with [JJ Contact Centre].
h.For the purposes of time in accordance with Order 4, time shall occur in the [Region B] of NSW and the father shall notify the mother or her nominee 7 days in advance where the visit shall take place.
AND IT IS NOTED
A.The father will select a location that has age-appropriate activities and will be appropriate for the weather.

a.The father submit to a supervised chain of custody urinalysis test in accordance with the Australian Standards for collection and detection of drugs of abuse randomly upon 48 hours’ notice in writing from the mother or her nominee, with such request to be made not more than once in every four-week period and this Order shall be discharged after a period of 4 months and on the provision the father produces clean screens save for the presence of [illicit substances].
b.Upon Order 8 being discharged, the father submit to a supervised chain of custody urinalysis test in accordance with the Australian Standards for collection and detection of drugs of abuse randomly upon 48 hours’ notice in writing from the mother or her nominee, with such request to be made not more than once in every four-week period and this Order shall be discharged after a period of 2 months and on the provision the father produces results clear of illicit substances.
c.Upon the father’s compliance with Orders 8 & 9, Orders 4, 5, 6 & 7 shall be discharged and the father shall spend time with the child unsupervised as follows:
d.For the first four (4) visits, each Sunday from 1.00pm to 3.00pm;
e.For the next four (4) visits, each Sunday from 1.00pm to 5.00pm;
f.For the next four (4) visits, each Sunday from 11.00am to 5.00pm;
g.For the next four (4) visits, each Sunday from 10.00am to 5.00pm;
h.Thereafter each alternate weekend from 10.00am Saturday to 1.00pm Sunday.

i.For the purposes of time in Order 10(a), (b), the father’s time with the child shall occur in the [Region B] NSW.
j.Upon Order 9 being discharged, the father submit to a supervised chain of custody urinalysis test in accordance with the Australian Standards for collection and detection of drugs of abuse randomly upon 48 hours’ notice in writing from the mother or her nominee, with such request to be made not more than once in every eight-week period and this Order shall be discharged after a period of 1 year and on the provision the father produces results clear of illicit substances.
IN THE EVENT THE CHILD LIVES MORE THAN 100KM AWAY FROM THE FATHER (Order 13 – 15)
a.Upon the child commencing primary school Order 10 shall be discharged and the child shall spend time with the father as follows:
b.During Term 1 each alternate weekend from 10.00am Saturday to 4.00pm Sunday; and
c.From Term 2 onwards each alternate weekend from 3.30pm or after school Friday to 4.00pm Sunday.

Handover
a.In accordance with Order 13, handover shall occur at the child’s school, and if school is not available at a location nominated by the mother or her nominee that is not less than 50km closer to the father’s address.
b.For the purposes of handover, the mother or her nominee shall facilitate handover.
IN THE EVENT THE CHILD LIVES WITHIN 100KM OF THE FATHER (Order 16 – 18)
a.Upon the child commencing primary school Order 10 shall be discharged and the child shall spend time with the father as follows:
b.During Term 1 each alternate weekend from 10.00am Saturday to 4.00pm Sunday; and
c.From Term 2 each alternate weekend from 3.30pm or after school Friday to 4.00pm Sunday; and
d.From Term 3 onwards each alternate weekend from 3.30pm or after school Friday to 9.00am or before school Monday.

Handover
a.In accordance with Order 16, handover shall occur at the child’s school, and if school is not available at a location nominated by the mother or her nominee.
b.For the purposes of handover, the mother or her nominee shall facilitate handover.
School holidays
a.Commencing in the Term 1 school holidays in the child’s first year of primary school, the father’s time with the child shall be extended by one day each school holiday period until the father’s time with the child extends to one (1) week of the Term school holiday periods.
b.In accordance with Order 13 or 16, and upon the father’s time with the child during the Term school holidays reaching one (1) week, the child shall spend time with the father for the Term 4/Summer school holidays on a week about basis commencing 12.00pm the first Saturday of the school holiday period in all odd numbered years alternating thereafter and commencing 12.00pm the second Saturday of the school holiday period in all even numbered years alternating thereafter.
Special occasions
a.The child shall spend time with the father for Christmas 2023 on Christmas Eve from 11.00am to 2.00pm and that time shall occur in the [Region B] NSW.
b.For Christmas 2024 and each alternate year thereafter, the child shall spend time with the father from 11.00am 23 December to 3.00pm 24 December.
c.For Christmas 2025 and each alternate year thereafter, the child shall spend time with the father from 11.00am Boxing Day to 3.00pm 27 December.
Easter
a.For Easter 2024 and the child shall spend time with the father from 4.00pm Easter Sunday to 4.00pm Easter Monday.
b.For Easter 2025 and each alternate year thereafter the child shall spend time with the father from 3.30pm or after school Maundy Thursday until 1.00pm Easter Monday.
c.For Easter 2026 and each alternate year thereafter the child shall spend time with the father from 11.00am Easter Monday to 3.30pm Tuesday.
Father’s Day
a.Commencing 2025, the child shall spend time with the father for Father’s Day from 3.30pm or after school Friday until 4.00pm Father’s Day.
Mother’s Day
a.In the event Mother’s Day falls on a weekend the child would ordinarily spend with the father, the child shall spend time with the mother and shall spend time with the father the following weekend in lieu.
[X]’s birthday
a.Commencing 2024, and all even numbered years thereafter, the child shall spend time with the father from 3.30pm or after school until 3.30pm [on the child’s birthday].
b.Commencing 2025, and all odd numbered years thereafter, the child shall spend time with the father from 3.30pm or after school until 3.30pm [on the child’s birthday].
Father’s Birthday
a.Commencing 2024, the child shall spend time with the father from 3.30pm or after school until 7.00pm.
Communication
a.That the parties shall facilitate the child communicating with each party at their request at all reasonable times and the party that has care of the child shall take all reasonable steps to facilitate such communication.
b.Upon the child commencing primary school, the child shall have telephone communication with the father each Wednesday at 5.30pm and for the purposes of this telephone communication the father will provide the child with a mobile phone that is capable of accepting phone calls with the father to initiate the call to that mobile phone.
c.For the purposes of the phone call in Order 33, the mother or her nominee shall ensure the phone is charged, turned on and able to accept calls and will provide the mobile phone to the child.
AND IT IS NOTED
B.The father acknowledges that the child may not engage in the phone call for more than a few minutes and will end the call at the appropriate time.
C.The mother or her nominee will create an environment that is conducive to uninterrupted phone calls and will provide the child with the freedom to engage in these calls without interference.
Restraints & Injunctions

a.That the parties are restrained by injunction from:

b.Consuming, ingesting, using or otherwise being under the influence of any illegal drug or substance during or for forty-eight hours immediately prior to spending time with the child or allowing the child to come into contact with any other person who has done so. Save that the parties may take any legal medication prescribed to them in strict accordance with that prescription and they may use over the counter medication provided it is also done in strict accordance with the directions for its use.
c.Consuming alcohol to excess during the twenty-four (24) hours prior to and any time spent with the child and from bringing the child into contact with any other person who has done so.
d.Insulting, belittling, degrading, rebuking, abusing or otherwise denigrating the other parent or a member of their family in the presence or hearing of the child or from permitting any other person to do so.
e.Physically disciplining the child or allowing any other person to do so.
f.Discussing these proceedings or the child’s living arrangements with the child, in the presence of the child, or allowing any other person to do so.

g.That the mother be restrained from relocating the child’s current location unless it is within 100km of the father’s residence.
Ancillary Orders
a.That each party is hereby authorised to obtain from the child’s school/childcare/extra-curricular/sporting organisations all notices, letters, school reports, photographs and other documents pertaining to the child’s education and attend any parent/teacher interviews, sporting events, extra-curricular activities and other events to which parents are invited.
b.That these Orders hereby authorise the child’s health practitioners including any general practitioner, psychologist, counsellor or allied health professional the child attends upon to provide to each parent upon request any assessments, reports and other information pertaining to the child’s health and wellbeing and to discuss all matters pertaining to the child’s health and wellbeing, with the requesting party to be responsible for any fees associated with such a request.
c.That the parties notify the other as soon as reasonably practicable in the event of a medical emergency suffered by the child by text message and if not an emergency, any medical illness, accident, or injury by text message or email including details of the illness or injury suffered, any medication prescribed and of the name of the treating doctor/hospital if applicable.
d.That the parties shall communicate via the AppClose parenting application in relation to all matters regarding the child save and except in the case of an emergency where the parties shall communicate via text message.
e.That the father notify the mother within twenty-four (24) hours of any change to residential address, telephone number or email address.
f.That the mother notify the father within twenty-four (24) hours of any change to telephone number or email address.
g.Within 7 days of the date of these Orders, the mother shall provide to the father an address for the purpose of sending letters, cards and gifts and the mother or her nominee shall notify the father within forty-eight (48) hours of a change of that address.
Therapeutic Engagement
a.Each party shall forthwith do all such acts and things to enrol and complete a post-separation parenting program and provide evidence of completion to the other party.
b.The father shall do all such acts and things to enrol in and complete a Men’s Behaviour Change program and provide evidence of completion to the mother.
c.That each party continue to attend upon each of their respective treating mental health practitioners as and when directed by them and do all things necessary to engage and cooperate fully with these practitioners and shall take all reasonable steps to comply with any medication and treatment recommendation made by the practitioners.
d.The mother shall forthwith do all such acts and things necessary to engage the child with a child psychologist and shall take all reasonable steps to comply with any recommendation made by the psychologist.
AND IT IS NOTED
The child psychologist will assist [X] with understanding who his biological father is and being introduced to the paternal family.

Respondent’s Orders sought

The Respondent’s Minute of Final Orders Sought was filed on 3^rd July 2023; they were as follows (emphasis in original):

a.That the Mother have sole parental responsibility for the child, [X] born [in] 2019 (“the child”).
b.That the child live with the Mother.
c.That the child spend no time with the Father.
d.Pursuant to section 11(1)(b) of the Australian Passports Act 2005 (Cth) the child, [X] born [in] 2019 (“the child”), be permitted to have an Australian passport or a travel-related document (herein “an Australian travel document”) as defined by section 6 of the Australian Passports Act 2005 (Cth)) and be permitted to travel internationally.
e.That the Mother’s exercise of her sole parental responsibility in Order 1 includes that the Mother is at liberty to do all acts and sign all documents necessary, and have such authority as is necessary pursuant to section 11(b) of the Australian Passports Act 2005 (Cth), to procure a valid Australian travel document for the child without the signature or consent of the Father, including that the Mother is authorised to sign such documents as may be required on behalf of the Father.
f.The child’s Australian travel document shall be held by the mother.
g.That Pursuant to section 68B of the Family Law Act (“the Act”) the father is restrained by injunction from the following:
a.Contacting or attempting to contact (including by text message, telephone, email or any other means including but not limited to via social media) the Mother and/or the child;
b.Doing an act or thing in order to locate or attempt to locate the whereabouts of the mother and/or the child including but not limited to their place of residence, the mother’s place of employment and/or any school, or educational institution attended by the child from time to time.
c.Approaching the mother and/or the child, or being within 100 metres of the Mother and/or the child;
d.Dwelling in or frequenting the locale of the child’s place of residence, school or extracurricular activity if it becomes known to the Father;
e.Removing or attempting to remove the child from the care of the Mother or third-party carer of the child; and
f.Engaging, encouraging or allowing any other person to do any of the above.

a.That the above order is an order made for the personal protection of the Mother and the child and is an order pursuant to section 68C of the Family Law Act to which the power of arrest without warrant attaches.
b.The section 68B order is made for the personal protection of the mother and the child and will remain in place and in force until the child turns 18 years.

Independent Children’s Lawyer’s Orders Sought

The Independent Children’s Lawyer provided a finalised Minute of Orders Sought on 25^thSeptember 2023; this provided as follows (emphasis in original):

a.That the Mother have sole parental responsibility for [X] born [in] 2019 (“the child”).
b.That the child live with the Mother.
c.That the child spend no time with the Father.
d.Pursuant to section 11(1)(b) of the Australian Passports Act 2005 (Cth) the child, the child [X] born [in] 2019 (“the child”), be permitted to have an Australian passport or a travel-related document (herein “an Australian travel document”) as defined by section 6 of the Australian Passports Act 2005 (Cth)) and be permitted to travel internationally.
e.That the Mother’s exercise of her sole parental responsibility in Order 1 includes that the Mother is at liberty to do all acts and sign all documents necessary, and have such authority as is necessary pursuant to section 11(b) of the Australian Passports Act 2005 (Cth), to procure a valid Australian travel document for the child without the signature or consent of the Father, including that the Mother is authorised to sign such documents as may be required on behalf of the Father.
f.The child’s Australian travel document shall be held by the mother.
g.That Pursuant to section 68B of the Family Law Act (“the Act”) the Father is restrained by injunction from the following:
a.Contacting or attempting to contact (including by text message, telephone, email or any other means including but not limited to via social media) the Mother and/or the child other than is provided for in these Orders;
b.Doing an act or thing in order to locate or attempt to locate the whereabouts of the mother and/or the child including but not limited to their place of residence, the mother’s place of employment and/or any school, or educational institution attended by the child from time to time.
c. Approaching the mother and/or the child, or being within 100 metres of the Mother and/or the child;
d.Dwelling in or frequenting the locale of the child’s place of residence, school or extracurricular activity if it becomes known to the Father;
e.Removing or attempting to remove the child from the care of the Mother or third-party carer of the child; and
f.Engaging, encouraging or allowing any other person to do any of the above.

a.That the above order is an order made for the personal protection of the Mother and the child and is an order pursuant to section 68C of the Family Law Act to which the power of arrest without warrant attaches.
b.The section 68B order is made for the personal protection of the mother and the child and will remain in place and in force until the child turns 18 years.
c.That the Mother shall forthwith identify and attend upon an appropriately qualified child psychologist (“the psychologist”) to assist her and the child in identifying his biological Father.
d.That upon obtaining the assistance of the psychologist as per Order 10 above, the Mother shall inform the child that the Father is his biological father having regard to any recommendations of the psychologist regarding how and when this information is shared with the child.
e.That the Mother shall inform the Father via email within 14 days of the child being informed that the Father is his biological Father.
f.That on two occasions each year, for the child’s birthday, and in the weeks prior to Christmas, the Father is at liberty to send to the child an email or parcel containing a photo of himself, a letter, a card and/or gift.
g.That when writing to the child as per Order 13 above, the Father is to ensure his communication does not refer to any dispute he has with the mother and does not contain any negative or otherwise derogatory content regarding the mother, her partner or the mother’s extended family.
h.That in the event the Father chooses to send the child a letter or card by mail, he is also to email the mother a digital copy of that communication so that a record can be retained by both parents.
i.That the Mother is at liberty to review the contents of any email or parcel she receives from the Father for the child pursuant to Order 13 above to ensure that that the Father has complied with the requirements of Order 14 above.
j.That upon the child being informed that the Father is his biological father as per Orders 10 & 11 above, the Mother must give any email or parcel received in accordance with Order 13 above to the child within 3 days of receipt and explain to the child that the email or parcel is from his biological father (and only where any communication contained therein complies with Order 14 above).
k.That in the event that the Mother decides not to provide any email or parcel from the Father (or some part thereof) to the child, within 14 days of receiving the email or parcel she is to advise the Father of that decision and the reason for that decision via email.
l.That on two occasions each calendar year, being no later than 30 January and 30 July, the Mother will send to the Father an email that provides a brief outline of the child’s education, health and development as well as any current interests of the child to assist the Father in his communication to the child.
m.That to facilitate the above communication to and about the child, the Mother will within 14 days of the date of these Orders nominate an email address and a postal address for the delivery of any parcels NOTING that at the time of this order, the Mother nominates [DD Street, Suburb EE], for the delivery of parcels and intends to set up a new dedicated email contact.

Applicant Father’s Oral Evidence

Cross-examination of the Father commenced with questions related to the admissions he had made in his trial affidavit, filed on 27^th June 2023, regarding the kinds of messages that he had sent the Mother in early 2019. It was put to the Father that one of those messages had read, “You will be lucky to spend one birthday with our child before it’s 18 because I’m going to drag your arse through the courts for as long as it takes to gain full custody.” The Father asserted that he was not in a good headspace at this time and had not known anything about the court system. He clarified that ‘not in a good headspace’ meant that he and the Mother had been abusing drugs, and that his Grandfather had passed away, although he qualified these statements by asserting that he was not trying to make any excuses for the messages.

The Father explained that he had sent messages to the Mother since this period, but not of that nature. He advised that his negative behaviour had changed as a result of the treatment that he had since sought. It was highlighted to the Father that this was inconsistent with his affidavit, in which he had confirmed that he had not had any contact with the Mother since March 2019. He clarified that he had meant “negative” communication.

Despite agreeing that he had sent messages to the Mother’s friend, Mr Z, regarding applying for full custody in 2019, the Father advised that he had never ‘been going for’ full custody. It was suggested to the Father that his statement that his behaviour had changed immediately after early 2019 was perhaps incorrect, and that it would be more accurate to say that it “was starting to change.” The Father accepted this proposition. He explained that he had made contact with Mr Z at this time because X had just been born, and he was not happy with the situation. He had thought Mr Z was “the closest contact” to the Mother. He denied that he simply “lashed out” because he was not happy. The Father agreed that some of his messages to Mr Z had been nasty, and that he had been putting some pressure on the Mother. He also agreed that this was his only way to communicate with the Mother. He denied, however, that anything that he said to Mr Z was really a message for her. I have reservations about this evidence. In my view, the messages at the time were plainly meant or intended, in some form, to be conveyed to the Mother. The Father’s evidence was, in my view, disingenuous in this regard. It was given in the light of the current hearing rather than accurately in relation to what was happening at the time the messages were sent.

The Father was taken to the Family Report prepared by Ms HH in December 2022, in which he was recorded as saying that he believed that it would be important for the Mother to relocate to City KK or Town S with X, if the Father was to have a relationship with the child. The Father explained that he was not very rational at that time, despite it being pointed out to him that it had only been “late last year.” He advised that he had found it hard to believe that the Mother and X were permitted to relocate to Region LL. He explained that he had felt it had been intentional to prevent him from having any chance at spending time with X and conceded that he had been spiteful as a result. He explained that the situation was very emotional for him, and that he had since withdrawn such comments recorded in the Family Report.

It was put to the Father that about a year before the Family Report, on 5^th November 2021, he had sent an email in response to one of the photos that the Mother had sent him, pursuant to Orders made on 2^nd December 2019 by a different Judge of this Court. In this email, the Father had asked for “another photo that is clear”, and that in the event that this was not done, he would “be changing how [he] proceed[s] with court.” The Father denied that he had inferred here that he would be seeking “full custody” of the child. He explained that he had been seeking clearer photos of X as he was intending on printing out all of the images, which required higher quality.

The Father confirmed that in his affidavit he had stated that the Mother was “not really scared” of him as she had sent an image of X with a landmark (in Region G) in the background, which was “not very far” from where he lived. He explained that this was in response to the Mother’s submission that she would relocate from Region G due to fears of her safety. It was suggested to the Father that his recognition of the location based on the background of the image may have led to the Mother cropping further images of X to protect herself from more comments based on her whereabouts. The Father stated he had not been stalking anybody. It was then suggested to the Father that he had looked in the background of another photo sent by the Mother and noticed that it was consistent with a Google search he had made of the Mother’s address in City KK. The Father confirmed this; however, he did not consider this to be stalking. He stated that he was simply put at ease knowing where X and the Mother were located, as after she had left Town T she had “disappeared”.

The Father confirmed that he had started proceedings shortly after X’s birth, and that when the Mother responded to his initial material, she had marked her address as “not to be disclosed.” He accepted that she had made it clear that she had not wanted him to know her address. When asked to consider what the Mother might think of the comfort that the Father takes in knowing her address, the Father advised that he had not been trying to alarm her, but that he had actually hoped that it might help her to realise that despite him knowing her address, he was not after or pursuing her.

It was put to the Father that he had only provided information regarding how he had come to know the Mother’s address in his affidavit of 27^th June 2023, so all of the other occasions throughout the proceedings in which he had asserted that he knew the Mother’s address were not to reassure her. The Father advised that he had not meant to direct these comments at the Mother. He denied that he had been trying to instil any fear in her by making these comments. He said that the purpose of raising the fact that he knew of the Mother’s location had been to show that he was not dangerous.

The Father explained that in the interim proceedings regarding the Mother’s relocation, her argument had been to move closer to her biological family, yet the location that she had actually relocated to was not in their proximity. He said that he thought the Mother had been exaggerating the need to be closer to her family to “push” the relocation application to Region LL.

The Father confirmed that he had called the Mother at work, pretending to be someone from the bank to get through to her, as she had not been taking his calls. This was plainly a concerning error of judgment and would understandably cause the Mother to consider that the Father was either tracking or harassing her. He denied that he had been calling the Mother’s neighbours to contact her and said that he would call them because they were friends. He explained that he had been seeking an address to serve papers. The Father was taken to a letter he had written to the Mother in May 2019 apologising for his behaviour in the past and stating that he had learnt to control his emotions better. He was also shown a text he had sent the Mother, from around early of 2019, in which he had stated he would not behave poorly to her again and would never be nasty to her again. The Father confirmed that his intention was to adhere to or abide by these statements, but seemed to recognise that he had been very emotional at the time.

It was suggested to the Father that his statement in the May 2019 letter that care-arrangements would be up to the Mother was not true. He confirmed that the Mother had not responded in the way that he had wanted. He confirmed that he had contacted the Mother’s family and friends, and had gone to her house and spoke to the landlord; he had gone to the hospital and sent his sister in to get information about the birth of the child. He said that, with respect to the birth of X, he had believed that he had a right to know when his son was born. The Father said that he had been shocked when he read the Mother’s first affidavit outlining the steps that she had taken with MM Hospital to protect her identity throughout the birth of X. He said that at the time, he had not realised that the fact that he and his sister had found out the details of X’s birth would upset her. Given the obvious strains in the relationship that were obviously well-known to the parties, the Father’s lack of insight at the time was concerning – accepting that his desire to know about the birth of the child was understandable.

Counsel for the Mother sought to understand why the Father had not tried to serve the Mother in accordance with the information Order which was included in his first proceedings. The Father explained that he had not been aware of this Order at the time.

The Father was taken to a message he had sent the Mother on his birthday, stating that his birthday wish was for her to “have a miscarriage.” The Father acknowledged that the Mother had previously had two miscarriages, which had been devastating for both of them. He confirmed that he had attended the doctor with the Mother on both of those occasions and was privy to the doctor’s advice that the miscarriages were likely drug and stress related. The Father said that he was not aware that the messages that he had sent the Mother during her pregnancy with X could cause a miscarriage. He did concede, however, that causing a lot of stress could cause a miscarriage. He denied that the reason he did not care about those things at the time was because it would suit him if she miscarried. He said that he had never actually wished for the Mother to miscarry; he confirmed that he never sent a message that clarified this to the Mother.

The Father conceded that at the time of X’s birth, he had not been thinking clearly about the Mother, and advised that, selfishly, he had been hung up on the fact that his first child was being born and he was missing it. He acknowledged that, in hindsight, sending his sister to the hospital would have put extra pressure on the Mother. The Father confirmed that he and his sister had found out about X’s birth in 2019.

He acknowledged that he had tried to go to mediation with the Mother during the pregnancy, but that she had said that she would not attend mediation until after the baby was born. The Father confirmed that the police had spoken to him twice about his communication with the Mother, and that he had told the police that he had obtained legal advice. He said that he knew he could not do anything about seeing the child until after he was born yet continued to engage with the Mother during her pregnancy. It was put to the Father that he had tried to contact her on seven occasions in June 2019, then through the mediator in July and on two occasions in August, and that the Mother had subsequently changed her telephone number, moved to City KK, and blocked him on Facebook. He accepted that after this, he had tried to contact her friends and family and had anticipated that they would pass that on to the Mother. He confirmed that he “did not give the Mother a break” in his pursuit of information about her residence and the like. To state the obvious: the Father’s pursuit of the Mother, at the time, was relentless, an obvious form of harassment, and completely ill-judged. How and why he could not, or would not, see how alarming and pressuring his conduct was on the Mother is a cause of very significant concern. In what follows, it is plain that he continued the same or similar conduct after X’s birth.

The Father said that he had received a message from an unknown number asking him if he wanted to know where his son was going to be born, to which he had immediately replied “Of course I want to know.” He confirmed that this was how he had received information about the Mother’s location and rental accommodation, and that he had then contacted her landlord twice by telephone. Again, he said he was trying to start proceedings and had hoped that he could get through to the Mother via the landlord.

The Father accepted or even conceded that at the Mother’s birth, he had been aware that he was not welcome which was why his sister had gone into the hospital to ask about X. He advised that he had not been trying to intimidate her at all. Again, in my view, not to see his conduct at the time as intimidatory showed significant lack of insight.

Questions moved to the Father’s concerns about the Mother’s communication with her male friends. The Father said that the Mother could do whatever she wanted, but he had previously had a problem with some of the Mother’s male friends due to an incident between the Mother and her ‘personal trainer.’ According to the Father, the Mother had informed him that this personal trainer had asked her to ‘do nude exercises at his house’, so the Father had told him to stay away from her. He conceded that the Mother could have told him herself, and he has since learnt that what he did was wrong.

It was suggested to the Father that he had admitted to Mr M that there had been a fight between himself and the Mother on one occasion because he had gone through her phone without her permission. He confirmed that this had occurred. He also confirmed that one of the existing issues in dispute was the physical altercation that had occurred between the parties on one occasion when the Mother had attempted to leave the house. The Father confirmed that the Mother had slammed the door in his face, which had upset him, and he had gone after her angrily. The Father denied that he put his arm out to pull her back and advised that he had instead put his arm over her shoulder from behind. He said he had not hooked her and had no intention to harm her. Instead, he advised he had simply been trying to stop her from leaving. He denied that he had ever attempted to put physical pressure on her to drag her backwards or bring her back towards him. He said though, that he did not actually think putting his arm out would stop her from moving. He said that she had spun around and gone straight to her car, and he had immediately let go. The altercation had ceased there. It was suggested to the Father that he could not have ‘let go’ of her if he was never holding on to her. The Father corrected himself and said that he ‘removed his arm from where it was.’

The Father was shown a text message that the Mother had sent him after the altercation, which read ‘…I don’t feel safe because of what happened.’ He confirmed that he had replied with ‘that’s bullshit. I didn’t choke you. I was just trying to make you stop from leaving.’ The Father confirmed that he knew that the Mother’s messages had indicated that she did not feel safe living with the Father, although he said that they had still been dating at this point. He confirmed that he had later known that she had felt unsafe prior to him sending all of his messages to the Mother post-separation, and contacting her through various means. He recalled sending an email to her, referring to their son ‘learn[ing] how pathetic you [the Mother] have acted by your own doings.’ The Father acknowledged this email and said that he had been irrational and angry but had never intended on relaying any such statements onto X. He was reminded that this had only been sent 3 days after the Mother had given birth. The Father simply said it was not a good time and conceded that he was trying to put pressure on her to do what he wanted. He stated that he thought he was quite sick at the time and has been consistently working on himself since.

The Father was then asked about some of the choices that he had made during the litigation, and whether or not those choices would have assisted the Mother. The Father was shown a message from late 2019, in which the Mother had asked the Father not to show any of the photos of X to her father. An email sent from the Mother’s solicitors to the Father’s solicitors expressing that the Mother’s Father had sent a ‘very disturbing email’ to the Mother indicating that the Father had passed on images of X. The Father’s representatives had replied, stating that they had been instructed that their client had no contact with the Mother’s Father. The Father advised that technically, he had not sent anything to the Mother’s Father, but later conceded that he had arranged for every image of X to be sent to them. The Father advised that he was not aware of the extent of the Mother’s Father’s violence towards the Mother at the time. Whatever the state of the Father’s knowledge in detail at the time, he was clearly aware of the Mother’s request about not to show any photos of X to her Father. He completely ignored her request. What follows shows the Father’s complete disregard of the Mother’s requests, some of which were, in reality, direct pleas for the Father not to involve her Father. These pleas were ignored. Incredibly poor judgment was again shown by the Father.

The Father further confirmed that in August 2020, he had organised for the Mother’s Father to swear an affidavit in support of his case. He conceded that he wished he had never done so. He deposed that the Mother saying that her Father had been physically abusive of her was insufficient, and that he needed her to file an affidavit setting out more detail of any occasions of violence between them for him to accept her request not to engage with her Father. The Father then advised that once he read her material, he regretted having any contact with her Father. He said that he had thought the Mother’s Father had ‘used’ him and his sister throughout this process to ‘get back at’ the Mother after their altercations. The wisdom of hindsight seemed to be used quite regularly by the Father.

The Father then deposed that he had not gone through the Mother’s Father’s affidavit in depth, and that he had possibly been trying to put pressure on the Mother by filing it. In my view, again the Father was less than insightful, and as he did often in the course of his oral evidence, regularly sought to downplay his responsibility (or culpability) for his actions, the intent of which were plain.

The Father was then asked questions related to his first application before the Court, in which he had sought an Order placing him on the child’s birth certificate. The Father confirmed that the Mother had sent him a form to complete to do so, but that he had not filled it in. He confirmed that he had not done so because he had wanted X to take his last name. He deposed that there was no Application before the Court on this point. He then confirmed that at the time, he had not said any of this to the Mother. He advised that he had discussed with his previous lawyers about seeking an Order to change X’s surname, but that he had been advised that it would likely be unsuccessful. He denied that the reason he had not signed it was that it was simply, ‘not his way.’ What “his way” actually was remained something of a mystery.

The Father conceded that he had not signed any forms from the Child Support Agency to show that he was X’s Father. He advised that he never had any problem with paying for child support but had not signed because his name was not on the birth certificate. He conceded that he could ‘see how that looks.’ The Father confirmed that he had stopped working shortly after the assessment of child support had occurred and started again in late 2022. He acknowledged that he had not told the Child Support Agency of his change in circumstances, namely that he was earning more money. He conceded that he did not advise them of this salary change until mid‑2023. When asked why, he said that he did not feel it was fair for him to pay for a child that he did not see. He conceded that he knew this way of thinking was ‘not a great thing.’ He said that now, he would provide child support, although still somewhat grudgingly. He then advised that it had just increased, and that he had been paying this and would continue to pay at this rate. Again, the Father’s minimal insight was on display.

The Father was next asked questions about his visit with X at L Families. He confirmed that he had driven himself to the visit, as he had been aware that he would need to negotiate with L Families if additional people were to attend. He confirmed that his sister had driven to the contact centre to support him, but that she had driven independently of him. He confirmed that L Families had sent him specific instructions as to where to park prior to the visit but conceded that his sister had waited for him in the wrong carpark. To this he added that it had been an honest accident. He confirmed that his sister could have met him in any nearby location instead. The Father confirmed that he had told the Family Report writer that the Mother was not as scared of him as she said, because his sister had ‘watched her at the … [L Families] carpark, and she had been putting on the waterworks.’ He denied that he had intentionally put his sister there to watch the Mother. He said that he had not considered that the Mother might have thought this. He understood, with hindsight, that his sister turning up to both the hospital and L Families might look ‘suspicious.’ Alas, this was, something of another “own goal”, to speak in the vernacular, which again showed lack of insight.

The Father deposed that while the reports of Mr M and the family consultant regarding the Mother’s distress had impacted him, he had felt that it had been somewhat ‘exaggerated.’ He acknowledged that he did not intend to dismiss the Mother’s fears by this comment.

The Mother’s Counsel then moved to questions about the interim Orders made in October of 2021, which provided that the Father could spend time with the child, subject to various conditions related to drug use and mental health were satisfied. The Father confirmed that one of the conditions was him engaging with a mental health practitioner and providing the Mother’s affidavit to her. He could not remember whether or not he did this. This lapse of memory regarding such a significant matter regarding his mental health and compliance with a Court Order was another area of concern.

The Father said that he had not seen his psychologist for a while, perhaps mid-2022 was his last appointment. He deposed that he had not provided any evidence to the Court to show that he had provided the Mother’s affidavit to his psychologist. He also confirmed that he had not provided any evidence about his current mental health functioning. For someone who was on notice of what the Court would likely be looking for (as would the Mother) from the comments set out in the interim judgment, such a basic lack of evidence in a key area before the Court was a very concerning omission.

The Father said that occasionally he would use illicit substances to assist with his sleep and medical condition, but not so much for stress. He explained that it helps with the severity of his medical condition, which he advised he had provided evidence of in the form of photographs, although he had not provided any medical evidence to suggest that illicit substances would assist. He then stated that he might go and get a script for it.

Questioning then returned to the Father’s behaviour throughout the litigation. It was put to him that in August 2020, he had made an Application to the Court seeking an Order that allowed him to know X’s address, as well as that of ‘all persons that reside at or frequent [X’s] address and the name of whomever cares for [X].’ It was suggested to the Father that, in the context of the Mother’s fears, this would not have reassured the Mother of the Father’s intent to give her some “space”. The Father provided a slightly digressive response about the litigation process being difficult, before conceding that he agreed with the Mother’s Counsel.

The Father was then shown a bundle of texts marked early 2019, including one from the Mother to the Father discussing their relationship and the Mother’s pregnancy. The Father confirmed that in one of these conversations, he had been upset with the Mother because she had contacted Mr Z. The Father confirmed that he had effectively asked the Mother to ‘pick him [Mr Z] or me [the Father].’ The Mother had responded raising concerns about the way that the Father tried to control her relationships. The Father confirmed that he had then clarified that it was only her relationships with ‘males.’ The Father said that it had been only seven days after they had broken up when these text messages were sent, and that it had been hard for him to accept that the Mother had confided in other men. He accepted that with hindsight it was controlling.

The ICL commenced cross-examination of the Father with questions related to the Father’s ‘hopes’ for X and the Mother. The Father confirmed that he hoped both X and the Mother had ‘good’ or ‘happy’ lives, as well as for himself. He also said that he hoped X would get to know his family, be successful, and that they could go on holidays together and do “Father and son” activities. He concluded that he wanted to know that he was a ‘happy, healthy and safe boy.’ The Father accepted that it might take some time for him and X to live out these hopes. This was a reasonable and positive comment and showed some basic insights.

The ICL asked the Father whether it might be possible that there is a conflict between the hopes that he has for X and him having a relationship with X. The Father said that he understood it would not be easy, and that there could be some conflict, but that he aims to support X. He suggested that it would be more positive than negative in the long run. He accepted that matters of logistics were also a significant factor and advised that he could ‘do the travelling’ and make it ‘as easy as possible’ to prevent X from having to sit in the car for extended periods of time.

The Father conceded that he accepted that the Mother had been distressed and hurt by his behaviour, but that he thought there was some aspect of this which had been inflated to improve her case. The Father was asked what he thought the Court should do if the Court found that he was incorrect in this regard, and that the Mother had significant difficulty coming into contact with him. The Father said, ‘it’s not about [the Mother] and me any more’ and that ‘it’s about [X].’ He said he would not have to see the Mother, and that Mr GG (the Mother’s partner) had advised that he was willing to facilitate the visitations. Again, the Father showed some important insight here.

The Father was asked about whether he would engage in ‘recognition time’ with X, as recommended by the Family Report Writer. The Father said he would take whatever time he could get.

The ICL asked the Father about his illicit substance use, which had been a significant concern of the Court in the interim judgment of October 2021. The Father understood that these concerns had led to an Order providing that the Father show 6 months of negative drug test results prior to any commencement of time with X. The Father recalled that the ICL had made requests for him to undertake such drug tests in late 2021, and confirmed that he had provided his results to the ICL a few days later with a positive illicit substance reading of 520. He said that in early 2021, his reading had been 90. It was suggested to him that this was quite the increase, however the Father said that his previous results had been ‘up around the 5000 mark’, to provide some perspective. The Father then confirmed that the ICL had sent further requests, on 16^th December 2021, 14^th January 2022, 28^th February 2022, 23^rd May 2022, and 28^th May 2022. He confirmed that he had not sent any response to these requests. To state the obvious, this was “not a good look”, to say the least.

Her Honour also made important observations about the term “meaningful”, as used in Part VII of the Act, in the context of what is comprehended by a “meaningful relationship.” At [20] – [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations:

[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s.60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.

[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision-making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.

[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.

[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

Further, I should note that in Sigley v Evor, at [136], the Full Court also commented as follows (emphasis added):

We also observe that in Champness & Hanson (2009) FLC 93-407 the Full Court (Thackray, O’Ryan & Benjamin JJ) observed at [103]:
The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. (See Bennett J’s analysis in G & C [2006] FamCA 994.) (emphasis in original)

The Full Court also observed at [191]: “The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’ ”.

In addition to the principles already outlined, because of the unique and delicate issues in this matter, the following further principles should be noted.

It is also the case that issues of relevant “risk” can apply to situations that concern various kinds of pressure that are brought to bear on a child or children, as well as upon the parent who has the primary (or sole care) of the child, as is the situation here.

Issues concerning, and the assessment of “risk” (not necessarily relating to any physical or sexual abuse), may be relevant, and are clearly relevant here, to a parent’s general parenting capacity. “Risk”, of course, is a fundamental matter for the Court to consider, including in particular regarding the Court’s protective responsibilities to X under s.60CC(2A).

Consideration and disposition

In the light of (a) what was previously addressed in the interim judgment in this matter (here, primarily regarding matters of history and context, especially regarding the Mother’s anxiety concerning contact with the Father), and (b) what has already been commented on in the course of these reasons, I can be somewhat summary in my comments here. The conclusions that follow should be taken to be formal “findings” of the Court. I follow sequentially the current legislative pathway in Part VII of the Act, even if there is not specific reference to each sub-paragraph in s.60CC(3).

Before getting to the somewhat dreaded, but soon to be changed, legislative pathway or scaffold, in the first instance, the Court can make by consent an Order for sole parental responsibility in the Mother’s favour. That Order should be, and will be, made.

I should also note that, in light of the very limited scope, but acute nature, of the issues in contention, a few preliminary comments are apposite.

First, in my view, the severity of the Mother’s anxiety and trauma arising from the relationship with the Father cannot be doubted. It was not doubted by either her own psychologist, Dr Q, or by the expert, Ms HH. I accept that her concerns relate not only to herself but also in relation to X, even regarding any possible “time with” at a contact centre, where risks should be appreciably lower. Given the evidence, which included the Father’s sister being something of a willing “accomplice” in the sense of seeking out information from the hospital when the Mother was giving birth to X, and later waiting at or near the contact centre where the Father and X were meeting for the first time, albeit very briefly, the Mother’s concerns are, in my view, properly and reasonably founded. It follows from this that the various attempts by the Applicant, including in submissions, to cast doubt on the reality and severity of the Mother’s trauma and anxiety should be firmly rejected. They do the Father no credit at all and should not have been made.

Secondly, while there was some, albeit quite limited, insight shown by the Father into his past actions towards the Mother, his failure to undergo drug testing as requested on multiple occasions by the ICL, did him no good service at all. Such poor conduct, including even failing to explain his situation (e.g. regarding pain relief for his medical condition, or lack of funds for drug-testing) to the ICL, suggested at least that he was unlikely to put himself to any (or much) trouble to show how keen or earnest he was to do whatever would assist him in being able to see X and assuage the Mother’s concerns. Even when the ICL offered to provide funds from Legal Aid for hair follicle testing, this was not taken up by the Father. This was a golden opportunity that went begging and was lost. It reflected very poorly on the Father’s prudential judgment, or rather the lack of it. The lack of evidence also from any treating counsellor or psychologist was another and somewhat troubling omission in the Father’s evidence.

Thirdly, while I do not doubt the Father’s genuine desire in wanting to see and spend time with X, and while I also accept his evidence of a certain bona fide intention to do “whatever it takes” (relatively speaking) to undertake steps that will ameliorate the Mother’s concerns, as noted on a number of occasions in these reasons, there was not a lot of independent evidence to support these claims. These significant “gaps” or omissions in his evidence, somewhat undermines his promises or intentions to confirm – to the Mother and to the Court – his capacity to make relevant changes to his lifestyle, and to follow Orders regarding matters that will facilitate cautiously, over time, some sort of introduction to X’s life. Further, the Father’s Orders Sought indicate a significant lack of insight by seeking, without relevant evidence, a steady build-up of time with X in the troubling circumstances outlined in the interim judgment and in the evidence before the Court. On what basis he could propose such a remarkable program of “time-with” X in the circumstances and history here, including that this young child does not even know of the Father’s existence, bordered on the delusional.

Finally, there is significant case-law that acknowledges and confirms the central link between the welfare of the “primary-care” parent and the welfare of the child. Conversely, the same general case-law confirms the risk to a child whose primary-care parent suffers significant anxiety and stress as a result of conduct of the other parent. Such is plainly the case here for the reasons set out in the interim judgment, and on the basis of the evidence of Dr Q and Ms HH here. Put another way, and noted earlier in these reasons, I do not accept the Father’s submissions to the effect that the Mother was either feigning her distress and anxiety or exaggerating it. Such a submission in the light of the history of the matter effectively (a) denies the large amount of evidence, completely adverse to the Father and of his own making, set out by the Court in the interim judgment, and (b) the evidence of both experts (Dr Q and Ms HH). Such a submissions further undercuts any possible trust the Mother could have in the Father.

I move finally to the statutory considerations.

Given X’s age, there are no “views” for the Court to consider.

It is likewise undisputed that (i) X has a good and close relationship with his Mother (and with her partner, the Father of his younger brother, FF), and (ii) has no relationship with his Father, indeed he does not know of his existence.

The other considerations set out in sub-paragraphs (c), (ca), (d) – (g), have no application here for the reason just noted. There is no relationship between child and Father. There has been no relevant relationship since the child was born. There is effectively zero communication between the Mother and the Father, which has been the status quo for the bulk of X’s young life. Such communication as there once was, which is set out in graphic detail in the interim judgment, was outrageous, scandalously offensive, and utterly inappropriate by the Father to the Mother. That communication and other matters set out in that earlier judgment, have essentially and understandably led to the completely fractured relationship between the parties, and also to the Mother’s extremely anxious, tremulous existence regarding anything to do with the Father, including the prospect – at any time – of X coming into contact with the Father.

Those parts of the statutory edifice that relate to [the historical] family violence are, again, well documented in the interim judgment and need not be repeated here.

In addition to the reasons above, I accept and adopt the submissions by the Mother and the ICL. For the reasons given, the Orders proposed by the ICL, should be made. In my view, they are in X’s best interests, which include the important consideration of the protection of X’s primary carer, his Mother, especially her psychological and emotional well-being.

I certify that the preceding one hundred and seventy (170) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville.

Associate:

Dated: 29 November 2023