Ackland and Billings

[2019] FamCA 46

FAMILY COURT OF AUSTRALIA

ACKLAND & BILLINGS [2019] FamCA 46

FAMILY LAW – CHILDREN – With whom a child spends time – Best interests of a child – Where the mother seeks sole parental responsibility, that the child live with her and spend no time with the father - Where the father seeks equal shared parental responsibility and unsupervised time with the child – Where the father has perpetrated family violence against the mother – Where the father has criminal convictions of a violent nature – Where the father has made threats of harm to several people including a former independent children’s lawyer - Where the father abuses alcohol – Where the father is likely to have a profound personality disorder - Where the father presents an unacceptable risk of harm to the child and does not have the capacity to provide adequate parenting for him – Where the risk of harm cannot be ameliorated by supervision – Where the father will spend no time and have no communication with the child other than sending cards or letters twice a year.

Family Law Act 1975 (Cth)

Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Johnson & Page (2007) FLC 93-344
M & M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655

APPLICANT: Ms Ackland

RESPONDENT: Mr Billings

INDEPENDENT CHILDREN’S LAWYER: Mr Samit Seth

FILE NUMBER: BRC 5342 of 2015

DATE DELIVERED: 7 February 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 31 July - 2 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bunning

SOLICITOR FOR THE APPLICANT: Pullos Lawyers

RESPONDENT: Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Wardle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Seth Solicitors

Order

1. All previous parenting orders be discharged.

2. The child, E born … 2014 (“the child”) live with the mother.

3. The mother have sole parental responsibility for the child.

4. The father be restrained and an injunction hereby issues restraining him from spending any time with the child.

5. The father be permitted to send the child one birthday card or letter and one Christmas card or letter each year by posting the card or letter to a Post Office Box nominated by the mother.

6. For the purposes of paragraph (5) herein the mother shall set up and pay for the Post Office Box and provide the details to the father, via her solicitors, within 30 days.

7. Except as provided in this Order the father is restrained and an injunction hereby issues restraining him from communicating or attempting to communicate with the child or requesting any other person to communicate with the child on his behalf.

8. Pursuant to s 68B of the Family Law Act 1975 (Cth) the father be restrained and an injunction hereby issues restraining him from coming within 50 metres of the mother or the child or the mother’s residence or the mother’s place of employment or the child’s school.

9. The independent children’s lawyer be discharged.

10. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5342 of 2015

Ms Ackland

Applicant

And

Mr Billings

Respondent

REASONS FOR JUDGMENT

1. Ms Ackland and Mr Billings are the parents of a little boy named E who is almost 5 years old. Unfortunately the mother and father have been in conflict about the child for most of his short life. The child has not spent any time with his father since December 2017 and the mother wants it to stay that way because she contends the child is at risk of harm from the father. The father wants to spend time with his son but will not do so if he is required to be supervised.

2. For the reasons set out below the father will not be permitted to spend time with the child.

issues

1. The issues identified by the parties and the Court as significant are:

   a)Does the father pose an unacceptable risk of harm to the child by reason of family violence or violence generally or the alleged continued misuse of drugs and alcohol or by reason of his mental health?

   b)Can the father be relied upon to maintain his relationship with the child and is it practically possible for the father to have a relationship with the child in a safe way?

   c)Has the mother obstructed the father’s time with the child?

   d)Has the mother fabricated the allegations of violence and drug and alcohol misuse against the father?

   e)Does the mother have the capacity to facilitate a relationship between the father and child if it is determined to be for the child’s benefit?

Proposals

1. The mother proposes that she have sole parental responsibility for the child and that he continue to live with her and spend no time with the father.[1]

   [1] The precise terms of the order sought by the mother are set out in exhibit 18.

2. The father proposes that the child continue to live with the mother and spend time with him each weekend or each alternate weekend and that there be an order for equal shared parental responsibility.[2]  

   [2] The father clarified the order he sought during his oral evidence.

3. The Independent Children’s Lawyer (“ICL”) recommends that the mother have sole parental responsibility for the child and that he live with the mother and spend no time with the father.[3]

   [3] The precise terms of the order recommended by the ICL are set out in the Case Outline filed 26 July 2018.

Background

1. The mother and father commenced cohabitation in 2003 and married in 2011. They separated on 6 December 2014 and are now divorced. The child was only 9 months old when his parents separated.

2. The mother is 38 and employed full time. The mother lives in rented accommodation in F Town. She and the child have lived in the same accommodation since 31 December 2015. The mother financially supports the child with no assistance from the father.  At the time of trial the child was attending an Early Learning Centre from Monday to Friday each week and will have started preparatory school this year. 

3. The father is 45 and largely unemployed. He receives a Newstart allowance from Centrelink but works occasionally. The father lives in a caravan which he moves every second day to avoid detection from local authorities.

4. It is not in contention that since separation the child has spent very little time with the father. The mother contends that all time has been supervised. The father contends that there have been some occasions when his time with the child has not been supervised.

5. The reasons for supervision relate to the mother’s allegations of the father’s alcohol and drug abuse, physical violence to her, inability to control his behaviour and fear that the child would not be returned. There have been significant periods when the child has not seen his father at all and, as noted above, the child has not spent any time with his father since the end of 2017 apart from a short period during the interviews for the most recent family report on 30 May 2018. On that occasion Ms G, the family report writer, observed a positive and affectionate encounter between the child and the father.

Applicable legal principles

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[4]

   [4]Family Law Act 1975 (Cth), s 65D.

2. A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:

   a)The person or persons with whom a child is to live;

   b)The time a child is to spend with another person or other persons; and

   c)The allocation of parental responsibility for a child.

3. The objects and principles of Part VII of the Act are set out in s 60B (1) and (2) and those sections make it clear that the Court is concerned with, among other things, children’s rights to be cared for by both parents when it is safe for that to occur.

4. In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).

5. The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family etc. (s 60CC).

6. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)). Family violence is defined in s 4AB and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.

7. In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities having regard to the ‘inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding’ and proof to the reasonable satisfaction of the court ‘should not be produced by inexact proofs, indefinite testimony or indirect inferences’.[5] Where it is not possible to positively reject an allegation as groundless the Court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[6] The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.”[7]

   [5] M & M (1988) 166 CLR 69 citing Briginshaw v. Briginshaw (1938) 60 CLR 336, 362 (Dixon J).

   [6] M & M (supra); N and S and the Separate Representative (1996) FLC 92-655.

   [7] ‘Unacceptable risk – A return to basics’ by the Hon. John Fogarty AM quoted with approval in Johnson & Page (2007) FLC 93-344, [68], [71].

8. The Court is not required to make findings of fact on every factual dispute raised by the parties.[8] The paramount issue for the Court is to determine what order is in the best interests of the subject children in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive determination” on each and every factual dispute.[9]

   [8]Baghti & Baghti [2015] FamCAFC 71.

   [9]M & M (1988) 166 CLR 69.

9. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.

10. Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any Order made by the Court (s 61C).

11. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

12. Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).

13. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).

14. Although I may not specifically discuss in these reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.[10]

    [10]Banks & Banks (2015) FLC 93-637.

15. I turn now to consider the issues identified above.

Does the father pose an unacceptable risk of harm to the child by reason of family violence or violence generally or the alleged continued misuse of drugs and alcohol or by reason of his mental health?

Violence

1. The father has a criminal record in Queensland dating back to 1992. In 1992 he was convicted and fined on two charges of knowingly using a telecom service to menace. During his oral evidence the father explained that these convictions arose out of him calling a local school and saying there was a bomb at the school. He says he did so because a girl had asked him to do it and he was attracted to her. In 2001 the father was dealt with for obstructing police and soliciting for prostitution. He was fined but no convictions were recorded. In 2004 the father was convicted of serious assault and sentenced to six months imprisonment to be served by way of an intensive correction order and fined. The father was also dealt with for obstructing police and stealing for which he was fined. In 2012 the father was convicted of possession of dangerous drugs and traffic offences and placed on probation for two years and fined. He was disqualified from driving for twelve months. In 2014 the father was dealt with for committing a public nuisance and fined. In 2015 the father was convicted of contravening a direction or requirement and fined. He was also fined and convicted for contravention of a domestic violence order. In 2016 the father was convicted for assaulting a police officer and sentenced to imprisonment for seven days suspended for two years. He was also convicted of public nuisance and sentenced to three months imprisonment suspended for two years and convicted of using a carriage service to make a threat to kill for which he was fined $1,500 and required to enter into a good behaviour bond for two years.

2. The father also has a criminal record in New South Wales. In 2010 he was convicted of recklessly wounding another person. The father admitted during his oral evidence that the offence involved him ‘glassing’ and biting a publican. He was sentenced to prison for twelve months suspended for twelve months and fined $1,500. He was also required to attend an alcohol and other drug program.

3. The father has been the respondent to a number of domestic violence orders for the protection of the mother. The mother contends that she was regularly subjected to family violence (as that term is defined in s 4AB of the Act) throughout the entirety of their relationship. Alcohol abuse was a contributing factor according to the mother.

4. The first incident of violence described by the mother allegedly occurred in 2002 when the mother says she confronted the father about his use of ecstasy and marijuana. She says that the father grabbed her around the throat, held her against a wall and squeezed her throat so hard that she was unable to breathe. The father denies this allegation describing it as “ridiculous”. The mother contends that she was left with bruising around her throat which was noticed by her sister who asked her about the bruises but she deflected her questions. The mother’s sister corroborates the mother’s allegations of violence to some extent. She says that she saw what appeared to be bruises on the mother’s neck in 2002 and that the mother changed the subject when she asked about them.

5. In 2004 the mother says the father threatened her by saying he would slit her throat while holding a knife to her throat. She escaped but returned to the home with a number of people including her sister and police to find the flat ransacked and the father detained by police. No police records prior to 2009 were tendered although I note that the father was convicted of a serious assault in 2004 but it is unclear whether that conviction relates to this alleged incident. The mother’s sister recalls this incident as having occurred in 2006. She recalls the mother saying to police that the father did “not really” or “not always” have violent tendencies and describes only the garage as being ransacked. She provides an account of witnessing the father yelling at the mother and approaching her (the sister) in an aggressive manner while yelling close to her face.

6. The mother says another incident occurred during a period from the end of 2006 to 2008 when the father punched her in the head, pulled her hair and dragged her around the room. She says she went to the father’s sister’s home to escape but the father followed her there and entered the bedroom yelling expletives, punched her and spat on her. He was extremely intoxicated. Although the father’s sister was not called by either party as a witness in the case, I note the records from the F Town Hospital report a telephone call received from the father’s sister on 6 August 2012 seeking help for her brother whom she described as having a history of violence to the mother and others (including members of the family) and a history of drug and alcohol abuse. The father said during his evidence that neither his sister nor his mother wanted to be involved in the proceedings.

7. On 18 December 2009 the father allegedly accused the mother of having an affair and proceeded to punch her a number of times in the face and chest and then threw her against the wall. He then threw her mobile phone at her hitting her in the mouth. She was then grabbed by the hair and dragged through the house and he tried to quieten her by holding her head down into the bed. The mother says the neighbours came to the front door and took the mother to their home and she assumes they called the police. The police applied for a protection order on behalf of the mother. The father denies ever punching the mother and does not recall throwing a phone at her. He says that the allegation of him dragging her through the house is a distortion of the facts. Police records refer to an incident occurring on 17 December 2009 which appears to relate to the incident in question. There are inconsistencies between what the mother alleges occurred and what these records indicate. For instance there is no complaint by the mother of any physical abuse other than the father throwing a phone at her. The records also state that she told police she ran from the home and asked the neighbours for help. The mother concedes that the police records are more likely to be an accurate account in some respects but says she may not have told police the detail of the physical assault because she was frightened. While I accept that a victim may not disclose relevant information for fear of reprisal that does not explain why the mother made some allegations e.g. that the father threw a phone at her, and not others e.g. he repeatedly punched her in the face and chest. There is no record of police observing any injuries to the mother despite her evidence that she was repeatedly punched in the face by the father. In any event, as a result of this incident, police applied for a protection order on the mother’s behalf and it was granted. A final order was made on 5 March 2010 for a period of two years.

1. The mother alleges that the father’s abuse of alcohol continued throughout 2009 to 2014 and that there were occasions when his verbal abuse escalated into physical abuse including kicking her after forcing her to the ground. One particular assault allegedly occurred on the Australia Day long weekend in 2014 when the mother was pregnant with the child. The father allegedly punched the mother giving her a black eye. The mother says she went to work with a black eye. No one from her work was called to corroborate her having a black eye.

2. On 28 May 2014 the mother alleges that the child was asleep in his bassinet in the main bedroom and when the mother asked the father to turn the television down he became enraged and repeatedly punched and kicked her. He held her in a headlock and made it hard for her to breathe. At one point he said “You will learn bitch, the more you fight against me the longer this will take”. The mother believes she passed out and when she came to she could not open her eyes. She says she managed to splash some water over her face and could feel her eyes were “all puffed up and were completely closed” and she felt like her nose “was flattened across my face”. The mother says that she did not go out for a few days and was too frightened to disclose what had happened to police or her doctor and was afraid of the repercussions for the father from his parents if she sought help from them. This last statement seems at odds with the mother’s other evidence that she regularly went to the father’s parents and complained about his violence. The father and his parents corroborate the mother’s evidence of regular complaint by her although the father’s father denies he ever saw an injury on the mother other than on one occasion when he says her eyes were red as if she had been crying. This seems to be related to the incident on 28 May 2014. I gained the distinct impression that the father’s father was playing down what he had seen because it seems unlikely that he would categorise red eyes as an injury. I do not believe that this was all he saw. The father’s father also downplayed his son’s alcohol abuse stating he did not have an issue with alcohol. The evidence is overwhelmingly to the contrary. He also minimised the father’s temper saying he had a “slight temper similar to his dad. He is a chip off the old block”.  Again the evidence is overwhelming that the father has a significant temper. After the incident on 28 May 2014 a second final protection order was made on 12 August 2014 for a further two year period. On 22 June 2015 the father sent 78 text messages to the mother during a 23 hour period and was convicted of contravening the protection order.

3. A temporary protection order was made for the protection of the mother and child on 11 July 2018 naming the father as the respondent. A final hearing was listed for September 2018, after the hearing before me. The circumstances leading to this order were explained in oral evidence by Senior Sergeant H. Lifeline had informed police on 8 July 2018 that they had received a threat from a caller to kill the mother, child and himself. The police conducted an investigation and were satisfied that the father had made the threat. I reject the father’s denials that he was the person who made the threats.

4. The father denies all physical abuse of the mother but admits to verbally abusing her and in particular calling her a “fat lazy cunt”.

5. The father also has an appalling history of verbally abusing people other than the mother.

6. During his oral evidence the father made the following admissions:

   a)He had referred to a female employee at the mother’s solicitors firm as a slut and told her she smelt;

   b)He told the mother’s solicitor that she should go back to where she came from; and

   c)He had called the mother’s counsel homosexual (in a pejorative context).

7. The father also admitted that:

   a)He had repeatedly telephoned a supervisor, Ms J including on one occasion at 4.22am;

   b)He and another supervisor, Ms K got into a heated conversation over the telephone after he sent an email to her mentioning her children.

8. In addition to the father’s admissions I find that the father has been abusive to supervisors of his time with his son, a stranger at a shopping centre and a real estate agent and that he has made threats of harm to people including a former ICL, a stranger at a shopping centre, a security guard at a shopping centre and a person he had communicated with on Facebook. The circumstances of those incidents are set out below.

9. The father commenced a Facebook association with a stranger, Mr L on 12 December 2016. The father and Mr L had something in common, namely, family law proceedings where the ICL involved was Mr M.[11] Mr L emailed the communication trail between him and the father to Mr M on 24 January 2017. The father denied he was the Mr Billings referred to in the communications but I do not believe him. The combination of the father’s admissions, my findings about his history of abuse and violence and the information and statements contained in the communications cause me to come to the conclusion that the father was the other person in the exchange with Mr L. The father made serious threats to kill and harm and was otherwise abusive and vile. His communication included the following:

   [11] Mr M subsequently withdrew from the case after threats of murder were brought to his attention.

   a)On 13.12.16 the father wrote [as per original]:

   Do you know a hitman so I can finish off [Mr M] with just a couple more grand ha ha

   …

   Anyone could flip [Mr M] he is a weak bastard I just don’t want to cut his head off at the moment I want to spare his life through the right channels but I promise you if you ever undermine me again I will murder that piece of wasted Society

   If you are a friend of [Mr M] warn him that I’m coming

   …

   …This is why [Mr M] will pay the price

   …

   I could break both of his legs with a kick here’s an awful man and may he paid the price

   …

   It sounds like you like to suck [Mr M’s] cock I have read back 100 times your messages and the comment where you said he keeps his word has lost my trust in you

   …

   Either way you’re a cock sucker

   …

   I bet you want to go down on him but you haven’t got the guts

   You wanna suck that bad boys cock don’t you

   They fuck with my children or come and cut off your head

   …

   … be very fucking careful what you say mate because I will come and I’ll hunt you down

   …

   Looks like you’re an ugly cunt with no hair

   Do you molester your children

   …

   How did you bend [Mr M] around apart from sucking his cock

   …

   Reckon the dad is a bit of a faggot

   I might call social services and get you checked out fuel gay instinct

   …

   You sound like a bit of a fucking faggot you like to abuse others do you

   Are you the joke or just a loser

   Can’t wait to go down on you hot stuff

   …

   Yes see it is faggots like you that unfortunately bring up children to become paedophiles

   …

   I promise you if you have any negative comment to say about that[12] I will hunt you down through every contact I have

   [12] The father had referred to the recent death of his dog called N.

   I will find you I promise you

   When I find you I’m going to rape your two little gay boys

   When I’m done raping them I will cut off their little heads

   …

   Or maybe that’s what I’ll be yelling while I’m fucking your two little boys in the bum

   …

   I’ll fucking cut your head off

   …

   I will find out I promise you from the bottom of my heart I will hunt you down

   …

   Stop paying out on me because I’m not afraid of jail do you get it

   …

   Where do you live you insulted my best friend my dog my cocker spaniel [N] I will do time for him

   …

   Which is why I am saying [Mr L] it’s best you apologise otherwise I will murder you

   …

   Tell me your address

   I will fucking murder you can’t

   …

   You are fucking dead I’m gonna cut your fucking head off

   Then I’m gonna rape your two little faggot boys

   OO yeah right up the arse of two little faggot

   …

   I’m gonna fucking hunt you down cunt I promise I will find you

   …

   I will murder you and I’ll rape your boys if you ever have this respect for my son [the child] and [N]

10. During the time that the parent’s home was listed for sale, a female real estate agent refused to communicate with the father because of his behaviour towards her. In an email to the mother’s solicitor on 25 February 2016 she said among other things [as per original]:

    Please know however, that we have no desire to act on behalf of [Mr Billings] … We still require that we are not contacted by him. … he is not rational in his berating conversation. Further to that, personally I find it offensive to have to put up with his comments about the (sic) how freeing it is to feel the breeze on his genitalia (in great detail) or conversations about “getting off” over images of ropes and chains and tying people up. … I will not accept any verbal communication from any party other than yourself or [Ms Ackland]. I will be lodging a formal complaint against [Mr Billings] with the QPS as some comments that have been made cause great concern for my personal safety.  

11. The Queensland Police records report an incident in February 2016 involving the father at a local shopping centre in F Town. At approximately 5.50pm the father approached a woman who was with her child. He asked the woman for some food to feed his “child” but he was actually referring to his dog. The woman stated that she was unable to as she had to look after her child. The father removed his dog from his car and said to the woman “Well I have to look out for my child too”. He then became very aggravated and said to the woman “you’re a cunt”. As the woman tried to walk away the father started to walk in front of her yelling abuse and pointing at the woman’s child while violently flailing his arms about. The woman was very fearful for herself and her child who started to cry. The father continued to yell and raised his right fist to the woman in a threatening manner until a member of the public intervened. A security guard then intervened and the father threatened to kill the security guard’s family if he called the police. CCTV footage captured the incident. When police spoke to the father he was belligerent and repeatedly called them “cunts”. The father was convicted of causing a public nuisance.

12. On or about 13 April 2018 Ms O, a social worker who had undertaken supervision of the father’s time with his son emailed the ICL declining to continue the role. She said among other things:

    As discussed over the phone, [P Group] is not willing to proceed with any further contact visits due to [Mr Billings’] erratic, volatile, unpredictable, unreliable and abusive behaviour. Also for not following the Supervisor’s direction to remain in the contact room and follow the Centre Scheduled Agreement.

    …

    [P Group] staff do not feel safe with the unpredictability of [Mr Billings’] emotional state and his complete disregard for boundaries and instruction.

13. P Group provided supervision of the father’s time with his son for a fee. On one occasion the father threw the money at the manager accusing her - “yous (sic) are all about the money, you don’t care about the children.”

14. On 22 June 2018 Ms K emailed the ICL attaching a text message she had received from the father and informing the ICL that she would no longer facilitate any future contact between the father and the child. She said among other things:

    … I informed his father that we had cancelled the contact due to [Mr Billings’] heightened and agitated state. … I would also appreciate that [Mr Billings] not refer to my own children in any further communication or correspondence.

15. In the father’s text message to Ms K he accused her of running a deceitful business, pretending to make progress notes of the supervised visits, lying, ruining his future and any chance to see his son ever again.

16. When cross-examined, Ms J (one of the supervisors of the father’s time with the child) said that she was afraid of the father. It was clear that she had gone out of her way to be of assistance to the father in re-establishing his relationship with the child but the father’s behaviour left her in a position where she was not prepared to continue supervising his time with the child.  

Drug and alcohol abuse

1. The father denied any problem with drug or alcohol use. In particular, he said that he has not had a problem with alcohol since separating from the mother in December 2014. I do not believe him. The father told his general medical practitioner on 5 May 2016 that he was drinking 15 alcoholic drinks per day 7 days a week.  Police records dated 5 July 2016 record that the father was arrested and “broke down crying at the counter, saying that he missed his son and dog and was an alcoholic”.

2. The father saw a psychologist on a number of occasions commencing in July 2016 and last saw him on 6 June 2018. His notes confirm the father’s problems with anger management, alcohol abuse, depression and failure to accept responsibility for his own actions.

3. On 28 March 2018 at 5.10pm the father was pulled over by police for a random breath test. At 5.49 pm a breath analysis showed the father had a blood alcohol concentration of 0.075 grams of alcohol in 210 litres of breath. When questioned, the father told police he had consumed four apple cider cans since 10.30am that day. On 9 May 2018 the father’s licence was suspended for three months.

4. In May 2018 police responded to a request by the manager of Q Park in relation to a loud disturbance. The father was found to be highly intoxicated and nonsensical. I do not accept the father’s denial of this incident.

5. There is no doubt in my mind that the father’s alcohol abuse was also a significant problem during the relationship. By way of example, in June 2014 the father was assessed at the F Town Hospital after being found by police trying to hang himself. During assessment the father reported that the mother had left the night before because of his drinking. He claimed he had consumed a bottle of rum overnight and had sent a text to the mother in the morning including a photograph of a noose and a threat to commit suicide. The father did not deny he intended to use the noose but avoided discussing the subject further. The father told the doctor that he had attended Alcoholics Anonymous in the past but believed this made him want to drink. The father also admitted past use of ecstasy. 

Mental health

1. Dr R is a psychiatrist who conducted an assessment of the parties in June 2016. No mental health concerns were raised in relation to the mother. In relation to the father Dr R opined:

   Given the diagnostic uncertainties in the father it would be difficult for me to recommend that the child have unsupervised time with the father until the issue of his ongoing drug and alcohol use is determined as well as the nature of any underlying mental health conditions.

2. Dr R formed the view that the father was understating his alcohol use. I find that the father continues to do so. Importantly though, Dr R stated that he would be even more concerned if the father’s decline in function and unusual behaviour was not related to alcohol because it may indicate a “more severe underlying illness, such as a psychotic illness or a major mood disorder, and also that it may indicate more profound … personality disorder”. Dr R identified significant “cluster B traits” in the father’s personality, namely, narcissistic features, suicidal threats and behaviours and an inability to accept responsibility for his own actions.  He opined that if the father has engaged in a consistent pattern of behaviour that has adversely affected himself and others and he is unable to acknowledge those behaviours, it is more likely that the father has a personality disorder which is profound.

3. While Dr R stated that a personality disorder is treatable with intense and long term therapy with a psychiatrist, it will not be successful if the person refuses to acknowledge they have a problem. Unfortunately, the father does not acknowledge that he has a problem.

Conclusion about whether or not the father poses an unacceptable risk of harm to the child

1. The father denies ever physically assaulting the mother but admits the mother telephoned his parents “all the time” with complaints about his behaviour towards her. The father contends that the mother’s “reactions to things were completely disproportionate”. I reject the father’s denial of ever physically abusing the mother. While I do not find it necessary to make findings on each and every allegation of physical violence made by the mother I am satisfied that he has assaulted her on occasion. The mother’s sister observed bruising on the mother’s neck on one occasion and the father’s father observed an injury on another occasion. As already found, I do not accept that his observation was limited to observing that her eyes were red from crying. The father has repeatedly perpetrated family violence (as that term is defined in the Act) upon the mother both before and since separation. I find that he repeatedly used derogatory terms to the mother including calling her a “cunt” which is a word he has used repeatedly to persons other than the mother as well. I have no doubt that his behaviour caused her to be fearful at times. I also find it more likely than not that the father threatened to kill the mother and the child and himself as recently as June 2018.

2. The father’s behaviour during the trial was disruptive, rude, bizarre and threatening. He repeatedly failed to follow reasonable directions. He refused to answer questions responsively. He continually spoke over the top of people. He laughed at odd moments and his response to a video of his son was quite bizarre in that his arms were flailing about, he was crying and muttering about having thousands of videos. This was a video he had produced and wanted played in court and was ultimately tendered in his case. On occasions he glared at the mother and her legal representatives in a menacing way. All of this behaviour was counterproductive. When asked if he thought his behaviour had in any way contributed to the predicament in which he now found himself i.e. not being able to see his son, he responded with a rant about how biased ‘the system’ is. He did not demonstrate any capacity to reflect on his own behaviour and how it impacts on other people. He has no insight at all.

3. There have been three supervisors who have refused to continue to supervise the father’s time because of his rude and threatening behaviour.

4. The father lives in a caravan and moves it every two days to avoid detection by the local council. While this may be unrelated to his personality vulnerabilities i.e. it might be related to his financial situation, it seems odd behaviour and there was no evidence as to why the father could not park his caravan in a caravan park for instance or even live with his parents.

5. While the father’s alcohol abuse may account for some of his behaviour I am not convinced that it explains all of his behaviour. The history of the father’s consistent behaviour which Dr R has described as narcissistic and borderline causes me to conclude that the father is likely to have a profound personality disorder which is exacerbated by alcohol abuse.

6. The combination of his violent history, alcohol abuse and personality disorder cause me to conclude that he presents an unacceptable risk of harm to the child in the future. The father has no insight into his behaviour such that further supervision of the father’s time with the child, even if a supervisor could be located, cannot ameliorate the risk.

Can the father be relied upon to maintain his relationship with the child and is it practically possible for the father to have a relationship with the child in a safe way?

1. The father indicated that unless he could choose the supervisor he would not see his son in a supervised setting. In any event I have already found that the risk to the child cannot be ameliorated by supervision.

Has the mother obstructed the father’s time with the child?

1. Despite the extraordinary circumstances i.e. the father’s abuse of the mother, I find that the mother has not obstructed the father’s time with the child.

2. The mother admits making a threat to the father on one occasion that he would never see his son again. She says it was said in the heat of the moment when she went to the former matrimonial home to collect her belongings shortly after separation. The arrangement for her to go to the home had been made with the police and the father was not supposed to be present. He was present and made abusive comments to her. She retaliated by making the threat. I accept the mother’s evidence that her threat that the father would never see the child again was made in the heat of a very unpleasant encounter. I accept her account that he verbally abused her and invaded her personal space in a threatening manner. While such a threat is to be condemned, the mother is human and made a mistake which she readily admitted.

3. After that event, however, the mother agreed to the father spending time with the child. For example in a letter dated 27 March 2015 the mother’s solicitors conveyed to the father a proposal that he spend time with the child on Tuesdays and Thursdays each week from 1pm to 2pm supervised by a psychologist. The mother offered to pay for the costs of the intake sessions and the supervision pending an order from the court.

4. The breakdown of the supervised time arrangements occurred not because of the mother’s conduct but because of the father’s and resulted in the supervisors refusing to continue their involvement. 

Has the mother fabricated the allegations of violence and drug and alcohol misuse against the father?

1. The evidence of the father’s history of violence and drug and alcohol misuse is overwhelming including his criminal history, his abuse of unrelated parties, his threats to unrelated parties and his treatment of the mother both during the relationship and subsequent thereto. While I have not found it necessary to make specific findings in relation to each and every allegation made by the mother against the father that should not be interpreted as a finding that the mother has fabricated allegations.

Does the mother have the capacity to facilitate a relationship between the father and child if it is determined to be for the child’s benefit?

1. If it were determined to be in the best interests of the child to have a relationship with the father, the mother says she would comply with any order made and I accept that she would do so, as she has done in the past.

other matters

1. The child has always lived with the mother, and the father, to his credit, does not seek to change that. The mother has a close and loving relationship with the child and has provided exceptional care for him to date.

2. It is tragic for the child that he will not be able to have a relationship with the father. It is generally accepted that children benefit from having a relationship with each of their parents but it is not safe for this child to have a relationship with his father. 

3. The presumption in favour of equal shared parental responsibility does not apply because there are reasonable grounds to believe that a parent of the child has engaged in family violence. As the child will continue to live with the mother it is appropriate that she have sole parental responsibility. There can be no expectation that the mother and father can communicate about major long term issues. Indeed the father said he had no interest in doing so.

4. The mother seeks personal protection injunctions against the father. Having regard to the findings I have made about the father’s violent behaviour and threats of violence I propose to accede to the mother’s request in that regard.

5. The father eschewed the prospect of communicating with the child by telephone. In any event, given the father’s history of abuse and threats I do not consider that he can be trusted to communicate with the child by telephone or any other means other than as suggested by the mother i.e. by sending a card on special occasions. The mother will of course have the opportunity of vetting any such communication.  

Conclusion

1. I have found that the father presents an unacceptable risk of harm to the child by reason of his propensity for violence, his alcohol abuse and his profound personality disorder.

2. The child will continue to live with the mother and she will have sole parental responsibility. The father will not be permitted to spend time with or communicate with the child other than by sending a card on special occasions.

3. Given the father’s history of violence and recent threats of harm to the mother and child I consider it necessary to make a personal protection order in favour of the mother.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 7 February 2019.

Associate:

Date:  7 February 2019