Adams & Adams (No. 8 - Final Orders) - [2007] FamCA 1083

FAMILY COURT OF AUSTRALIA

ADAMS & ADAMS (No 8 – Final Orders)

[2007] FamCA 1083

FAMILY LAW - CHILDREN – Parenting orders for bi-racial male child aged 4 years – Unremitting conflict between parents – Husband’s anti-social and provocative behaviour generally and his unacceptable conduct to wife assessed as having negative impact on child – No benefit, in fact, harm to child of having meaningful relationship with husband – Husband to have no time or communication with child for time being – Discussion of change necessary before involvement by husband with child likely to be of benefit to child – Responsibility to wife

Family Law Act 1975 (Cth)
Family Law (Shared Parental Responsibility) Act 2006
Crimes (Family Violence) Act 1987
Children & Young Persons Act 1989
Crimes Act 1958 (Vic)

Re: H & Ors (1996) 1 All ER 1
McCoy & Wessex [2007] FamCA 489
L v T (1999) FLC 92-875
R & R: Children's wishes (2000) FLC 93-000
H & W (1995) FLC 92-598
B and B: Family Law Reform Act (1997) FLC 92-755
Rice v Asplund (1979) FLC 90-725
KB & TC (2005) FLC 93-224

APPLICANT:

Mrs Adams

RESPONDENT:

Mr Adams

INDEPENDENT CHILDREN’S LAWYER:

Donald S Lampe

FILE NUMBER:

MLF

2456

2006

DATE DELIVERED:

17 September 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

5, 6, 7, 8, 9, 12, 13, 14, 15, 16, 19, 20, 21, 22 & 23 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr A. Combes

SOLICITOR FOR THE APPLICANT:

Jane Baldwin

THE RESPONDENT:

In Person

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

Mr R. Hoult

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Donald S Lampe

Orders

That all previous parenting orders be and are hereby discharged.
That the child, a son, born in July 2003 live with the wife.
That the wife have sole parental responsibility for the child.
That the husband not spend any time with or communicate with the child.
That until … July 2011 the wife advise the Registry Manager of this Registry of the Court of the residential address of the child and provide the Registry Manager with prior notice in writing of any change thereto.
That until … July 2011 the husband advise the Registry Manager of this Registry of the Court of his residential and provide the Registry Manager with prior notice in writing of any change thereto.
That the addresses provided pursuant to the preceding two paragraphs not be released without the prior order of a Judge of this Court.
That the husband, his servants or agents not remove the child, a son born in July 2003 from the Commonwealth of Australia and it is requested that all officers of the Australian Federal Police give effect to this order.
That the Australian Federal Police place the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s names on the Watch List until further Order of the Court.

10.That the husband be and is hereby restrained from causing, permitting or suffering any application to be made for passport to issue for the said child.
11.I DIRECT that a copy of this Order be sent by the Registry Manager of the Court to the Department of Immigration & Citizenship to be forwarded to the government of the Republic of South Africa with a request that the Republic of South Africa not issue a passport for the child … born in July 2003 to the husband or on his application.
12.That subject to any further order of the court, paragraph 3 of the Order made on 20 February 2007 continue in full force and effect until 23 November 2007 or my determination of any application of, or with respect to, costs of these proceedings.
13.That any party wishing to seek costs of or incidental to the parenting proceedings file and serve submissions in writing to that effect by not later than 5 October 2007 including, but not limited to, an itemised memorandum of the costs sought calculated in accordance with the scale set out in the Family Law Rules 2004.
14.In the event that any party seeks costs against another party, the party against whom costs are sought file and serve any written submissions in opposition thereto by not later than 26 October 2007.
15.That any submissions in relation to costs be limited to five (5) A4 pages in length excluding any memorandum of costs on the basis that I will not give consideration to the sixth and any successive pages of any submission.
16.I DIRECT that my Associate review the file on 2 November 2007 to ascertain whether there is any dispute in relation to costs and, if there is, to draw same to my attention. If there is no outstanding application for costs, my Associate re-list the matter as soon as practicable for a discharge of the Order made on 20 February 2007.
17.I DIRECT that a copy of these reasons for judgment be sent to the following persons, it being the case that either that person and / or someone else from the organisation by which they are employed were required to give evidence at the trial and I have made findings as to the propriety of the witness in his/ her professional capacity:-
a)Ms M of Department of Human Services;
b)Ms L, N Contact Centre;
c)Leading Senior Constable P, Victoria Police;
d)Officer in charge, Family Law Branch, Australian Federal Police;
e)Mr X, family consultant.

18.That the order for the appointment of the Independent Children’s Lawyer be discharged forthwith.
19.That the Court certifies that it was reasonable to employ an advocate.
20.That all extant Applications be dismissed and removed from the List of Cases awaiting finalisation.
21.That subject to any further Order of the Court, exhibits and subpoenaed documents be returned to the persons producing same at the expiration of the appeal period or the determination of any appeal, if an appeal is filed.
22.That pursuant to section 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.

IT IS NOTED INCONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bennett delivered this day will for all publication and reporting purposes be referred to as Adams & Adams (No 8 – final orders).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2456 of 2006

Mrs Adams

Applicant

And

Mr Adams

Respondent

REASONS FOR JUDGMENT

Index

Orders
REASONS FOR JUDGMENT

Index

Introduction

The proposals
Findings of fact
The evidence

The husband
The wife
Mr T........................................................................................................................... 23
Mr E
Ms Y ......................................................................................................................... 28
Ms U ......................................................................................................................... 29
Ms G.......................................................................................................................... 30
Ms M......................................................................................................................... 30
Ms Z........................................................................................................................... 32
Ms D.......................................................................................................................... 37
Ms K.......................................................................................................................... 41
Ms L........................................................................................................................... 42
Ms O
Leading Senior Constable P
Dr I
Ms E........................................................................................................................... 50
Ms H.......................................................................................................................... 50
Mr H.......................................................................................................................... 51
Federal Agent F
Federal Agent Q
Mr X

History
Relevant law – residence and contact
Determining the child’s best interests
The primary considerations
The benefit of a meaningful relationship as a primary consideration
Protection from harm – as a primary consideration
Treatment of the additional considerations
The children’s views
The nature of the children’s relationships
The willingness and ability of each parent to facilitate and encourage the children’s relationship with others
The likely effect of any changes in the children’s circumstances
Practical difficulties and expense associated with contact
Capacity of the parents to meet the children’s needs
The children’s maturity, sex, background and other characteristics
The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents
Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children
Any other fact or circumstance the Court thinks relevant
Parental responsibility
Consideration of equal time or substantial and significant time with both parents

Conclusion

Introduction

These proceedings concern the child who was born in July 2003.
Very briefly, the child’s parents married on 29 June 1997 and separated late 2003. Since their separation the child has lived primarily with the wife and has spent time with the husband either by agreement between the parties or pursuant to orders of the court or a mixture of both. As will become apparent from my discussion of a history of the matter, there have been periods when orders providing for the child to spend time with the husband have been formally suspended or have been rendered unworkable with the effect that the time ordered to be spent has not occurred. The N Contact Service withdrew its services from the family on 18 November 2006. That withdrawal resulted in a de facto suspension of the operative orders for the child to see or communicate with the husband with the effect that the child has not seen the husband since 11 November 2006.
The proceedings commenced when the wife filed an application in the Federal Magistrates Court on 15 April 2005. On 1 June 2005 the respondent husband filed a response seeking different orders from those of the applicant, essentially for joint parental responsibility and shared care. Subsequently the proceedings were transferred into this court.
Since the commencement of these proceedings the Family Law Act 1975 (“the Act”) has been significantly amended by the Family Law (Shared Parental Responsibility) Act 2006 the provisions of which came into operation on 1 July 2006. Certain procedural elements of the amending legislation, found in Division 12A, do not apply to this case as it was commenced before 1 July 2006. The new law is complex so I will set out the relevant provisions in this judgment. This is a case in which the procedural history is significant and there is considerable overlap between of facts and considerations relevant to the exercise of my discretion. I will provide an overview of the proceedings and then my assessment of witnesses who gave evidence and discuss the matter chronologically, making findings of fact along the way. Then I will apply the relevant considerations to the facts of the case.
It is as well to mention now that the husband, Mr Adams, is the worst behaved litigant I have encountered in this or in any other court. His behaviour, conduct and demeanour flouted normal civil behaviour as understood in this community. From the outset he deliberately set out to be offensive to the court, practitioners and witnesses. Of gravest concern to me, however, was that in this process he showed no positive regard for the best interests of the child. Even if the husband had been interested in the child’s best interests, I doubt he would have behaved differently. This is because I do not believe, on the basis of evidence to which I shall refer below, that it is within the husband’s constitution to consider the interests of anyone except himself, or to behave other than how he desires, at a moment in time, to behave.
Perusal of the transcript will reveal numerous occasions where the husband’s behaviour was contemptuous in the face of the court. However, I proceeded on the basis that a badly behaved litigant does not necessarily make a bad father. I allowed the husband more latitude, indeed considerably more latitude, than it may reasonably have been expected that he would be allowed. This is because it was, and remains, my view that the specific and the overarching duty of the court is to ensure that the child’s best interests are ascertained and a determination made which is consistent with them. In this case, that involved not permitting the husband to distract the attention of the court from the real issues relevant to the child’s future and to provide the child and the mother with some conclusion. So, with the child’s interests in mind, I proceeded with the hearing as best as the circumstances created by Mr Adams (“the husband”) permitted.
These reasons should be read in conjunction with the several sets of reasons in support of rulings which I delivered during the trial which touching on various aspects of this case including procedural matters and some of the husband’s applications that I disqualify myself. I incorporate my findings in those judgements as findings of fact in these reasons.
On the second day of the hearing, I ordered that the husband be placed in custody until such time as he could comport himself reasonably. This was as a consequence of the husband acting in an uncontained and menacing way at the bar table and because of my concern for the physical safety of persons at the bar table. My ruling in this regard is Adams & Adams (No 1) [2007] FamCA 40. I will discuss later, in the context of my findings as to the husband’s allegations against the Australian Federal Police, the husband’s conduct following his being taken into custody.
On the 5^th day of the trial, 9 February 2007, I ordered that the husband be excluded from the court room and that his participation in the proceedings be confined to video link between the Court in which I was sitting and Court 2K. At that time, and whilst the husband was in Court, I commented on the risk he ran of weakening his own case if he refused to be cross examined. The medium neutral citation for that ruling and those comments is Adams & Adams (No 2) [2007] FamCA 52. The advantage of having the husband participate from another court room was that, in the event that he yelled or interrupted or was abusive for a prolonged period, his microphone could be turned to mute so that he could see and hear the proceedings in court but he was deprived of the opportunity of disrupting the hearing.
By and large, confining the husband’s participation to video link from Court 2K worked well until the 11^th day of the trial, 19 February 2007. Then he was again abusive to the point that, even given the latitude I was prepared to allow him, I was satisfied that he had no inclination to participate in any meaningful way in the proceedings and that his sole goal at that point was to disrupt proceedings. I ordered that the husband be placed on mute until further order with the effect that he could see and hear all that went on in our court room but that those in court could not hear anything from the court room in which he was situated, save for messages which were relayed from time to time by the court officer who sat in Court 2K. I reserved to the husband a right to make application to vary or discharge those orders and, on various occasions thereafter, I made it clear that I would stand the matter down to permit him a reasonable time in which to prepare any such application. He did not wish to do so. My order provided that any such application by the husband must be supported by an affidavit in which he deposed that, if permitted to ask questions and make submissions, he would do so in an orderly and civil manner. My ruling is recorded as Adams & Adams (No 6) [2007] FamCA 101. The husband did not make any application. The husband chose not to participate in the balance of the proceedings.
During the trial, the husband regularly made applications for me to disqualify myself from continuing to hear the matter. The husband had also made a number of applications for me to disqualify myself on 19 January 2007 which were unsuccessful. As to the disqualification applications made during the trial, initially they were said to be based on an apprehension of bias. In the end, however, the husband was using those applications as a means by which to be rude and disrespectful to the court. My reasons for dismissing various of the applications appear as Adams & Adams (No 3) [2007] FamCA 71, Adams & Adams (No 5) [2007] FamCA 100, Adams & Adams (No 6) [2007] FamCA 101.
Returning to the substantive matter. For ease of reference, I will refer to the parents as the husband and the wife although I note that they were divorced in August 2006. Pursuant to a request made by Phipps FM to Victoria Legal Aid on 9 February 2006, Mr Donald Lampe, solicitor was appointed as child representative. He is now an independent children’s lawyer within the meaning of Division 10 of Part VII of the Act. As such, his role is to form an independent view, based on available evidence, of what is in the best interests of the child and then act in the proceedings in what he believes to be the best interests of the child[1]. He is not a legal representative retained by the child and he is not bound by any instructions from the child[2]. Rather, the role of the independent children’s lawyer is to deal impartially with the parties, ensure that the expressed views of the children are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The independent children’s lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings[3] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the child to do so[4].
[1] Section 68LA(2)
[2] Section 68LA(4)
[3] Section 68LA(5)(d)
[4] Section 68LA(5)(e)
The husband has been very critical of the independent children’s lawyer and of Mr Hoult who is counsel representing the independent children’s lawyer. He has made a number of applications for the independent children’s lawyer to be discharged. Brown J dismissed one such application on 11 October 2006. I have dismissed the others. The husband has not appealed any of the dismissals. However, the husband persisted with his complaints about the independent children’s lawyer. As a means of protesting against the continued presence of the independent children’s lawyer, he arrived late to court on a number of occasions but then decided to abandon that course. The husband alleges that Mr Hoult, of counsel, has lied to the Court, acted in a rude and unprofessional manner towards him and others and, together with the independent children’s lawyer, has failed to represent the child’s best interests. The husband also alleges that Mr Hoult stole a compact disc from him which compact disk the husband was seeking to tender in evidence.

I will make further comment on the conduct of this matter by the independent children’s lawyer and the representation of him by Mr Hoult. However, it is appropriate to note at this early stage in my reasons that the court has been assisted by the independent children’s lawyer and his counsel. They have represented the child’s best interests and done so in the face of intemperate and challenging behaviour by the husband. The quality of the child’s representation reflects, I think, a consciousness by each of Mr Lampe and Mr Hoult of their weighty responsibility to the child. The role of the independent children’s lawyer involves dealing impartially with the parties. Amongst other things, that means that the independent children’s lawyer cannot allow himself be intimidated by either of the parties. The fact that they discharged their respective duties with a quiet dignity, did not rise to the bait and remained prepared at all times to assist the husband in the presentation of his evidence and case is admirable. It goes without saying that I reject completely any allegations of criminal behaviour on the part of Mr Hoult.
The child’s interests have been well served in this case.
There have also been some interim financial orders in this case, made in support of an application for costs. On the 12^th day of the trial, 20 February 2007, the independent children’s lawyer and the wife each made an oral application to enjoin the husband, his servants and agents from dealing with $20,000 (being a total of $40,000) of monies invested in the name of the child. The husband had earlier given evidence that those monies had been given to him by his parents for the purpose of funding these proceedings. The wife and the independent children’s lawyer each said that they wanted the injunction to operate in anticipation of them making an application at the conclusion of the proceedings that the husband pay part or all of their costs of the trial and that, in each case, the sum claimed would exceed $20,000. I made interim orders in the terms of the oral application. The medium neutral citation for that decision is Adams & Adams (No 7) [2007] FamCA 293. Subsequently, the independent children’s lawyer sought leave to cause a further subpoena to issue to the named bank and I was informed that, following service on the bank of my orders made on 20 February 2007, the bank had advised the independent children’s lawyer the $65,000 had been removed from the child’s account. I granted leave for the subpoena to issue. I have received no further applications for injunctive relief or to dissolve or vary the existing injunction. The wife and the independent children’s lawyer each maintained that they wished to make an application for costs. In final addresses I said that I will include in my final orders liberty to any party to make an application for costs within a certain time and that is what I will do. The injunction will remain in force until my determination of any application that the husband pay costs.

The proposals

At the commencement of the hearing, the applicant wife sought that the child live with her; she have sole parental responsibility and that the time which the husband is to spend with the child and his communication with the child be reserved[5]. At the conclusion of the hearing, the wife sought:-
[5] Summary of argument filed on behalf of the wife on 2 February 2007 (par 1)
1. That the child [a son] born the […] July 2003 live with the Wife and she have sole parental responsibility for him.
2. That the Husband not spend time with nor communicate with the child.
3.The Husband, his servants and/or agents, be and are hereby restrained from the following:
a)   approaching within 200 metres of the Wife’s residence or place of employment;
b)   approaching within 200 metres of the child;
c)    approaching within 200 metres of the child’s kindergarten or crèche or educational facility;
d)   telephoning the Wife.
4. That in the event that the Husband seeks to make an application to vary the preceeding (sic) paragraphs herein, he first file the following documents:
a)   an application setting out with specificity the Order he seeks;
b)    an affidavit sworn by him setting out a report of a psychiatrist setting out his psychiatric, psychological and emotional state;
c)    the facts on which he relies in support of an application to vary Orders 1, 2 and 3 or any of them herein.
5. That any application made pursuant to paragraph 5 (sic) herein be determined at first instance on the papers in chambers and if reasonably available, by the Honourable Justice Bennett and a decision made as to whether the Husband has leave to institute proceedings.
6. The husband pay the wifes (sic) costs of these proceedings.
7. That all extant applications be otherwise dismissed.
8. That the Independent Children’s Lawyer be discharged.
9. Section 65DA paragraph 2 and s.62B of the Family Law Act 1975 apply.
The respondent husband sought that the child live with him and that the wife spend time and/or communicate with the child each week from 9:00am on a day to be nominated by the wife until 6:00pm on the following day. He sought sole parental responsibility for major decisions such as religion and education and medical interventions. I asked the husband to formulate a fall back position. That is, in the event that he was not successful with his primary application that the child live with him, what time and communication he would seek to have with the child and under what conditions such as supervision. He sought that the time be shared equally. Initially, he would not countenance a supervisor for changeover purposes, even as a fall back position. Subsequently he made reference to a western suburbs Contact Centre but did not provide any evidence in respect of the centre or, very significantly for this case, whether this family would be accepted into the centre.
The one thing on which the parents agree is that each is unable to communicate effectively and constructively with the other about matters concerning the child and his welfare. That is very significant in relation to my assessment the practicability of the parents being able to discharge parental responsibility jointly, equally or in any way co-operatively. I will deal with this matter in more detail in the context of my consideration of s 61DA(1).
At the commencement of the trial the preliminary view of the independent children’s lawyer was that, subject to the husband being able to provide psychiatric evidence about himself and an impartial and appropriate person to supervise changeovers between the parents, that the child spend time with the husband on a gradually increasing basis culminating with overnights each alternate weekend. By the end of the hearing, the position of the independent children’s lawyer in relation to the outcome which will promote the child’s best interests had altered. It was as follows[6]:-
[6] Paragraph E of the Case Summary Document prepared by the ICL and filed 1 February 2007
1.THAT ALL PREVIOUS Parenting Orders be discharged.
2.That the child live with the wife and she have sole parental responsibility for him.
3.That the husband not spend any time with or communicate with the child.
4.That in the event that the husband seeks to file an Application with respect to the said child, he first file the following documents:-
(a) An application;
(b) An Affidavit sworn by him setting out:-
(i)The facts upon which he relies in support of his Application;
(ii)The nature and extent of any therapy or counselling received by a Psychiatrist;
(iii)An explanation for his conduct during the course of the Trial which commenced on the 5^th February, 2007;
(iv)An affidavit from a treating Psychiatrist setting out treatment received by the husband, a diagnosis, if possible and whether the Psychiatrist has read a copy of the Judgment of the Honourable Justice Bennett;
5.That any Application made pursuant to Order 4 hereof be determined at first instance on the papers in Chambers (and if reasonably available by The Honourable Justice Bennett) and a decision made as to whether it should be served on the wife and any other person or persons or dismissed at that time.
6.That the Independent Children’s Lawyer be discharged forthwith.
7.That all extant Applications be dismissed and removed from the List of Cases awaiting finalization

Findings of fact

I found the opportunity to observe the parties and their witnesses in the witness box to be of considerable benefit and a useful tool in deciding the truth of matters in issue in these proceedings.
The husband appeared on his own behalf, so his case was unfiltered by legal representation. Early in the proceedings I cautioned the husband that I could take into account his behaviour in Court as well as his evidence.
In assessing the evidence, I applied balance of probabilities as the standard of proof. Some allegations in these proceedings are very serious, such as the husband’s allegation that the maternal uncle, Mr E, sexually abused the child, and some allegations are unusual and some are both unusual and serious.
In an English case involving a wardship application, Lord Nicholls discussed the relevant standard of proof to be applied in non-criminal proceedings, such as these proceedings. In Re: H & Ors[7]. His Lordship stated:
"[145]. Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise various serious issues, but so do other forms of civil proceedings.
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event is more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. . . . Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established".
[7] (1996) 1 All ER 1 at 16.
In what I have already said and in what follows, statements of fact constitute findings of fact.

The evidence

On 10 November 2006, Brown J ordered that by 18 January 2007, each party file and serve an affidavit of their own evidence in chief and an affidavit of each other witness which he or she proposed to call at the trial. The applicant wife complied. The husband did not. On 19 January 2007, I effectively extended the time in which the husband could file further witness affidavits to 25 January 2007 and also by that date to provide a list of affidavits already filed in the proceedings upon which he wanted to rely. The husband expressed a preference to file a supplementary affidavit of evidence in chief bringing up to date matters to which he had already deposed. He was given until 25 January 2007 to do so. The husband did not comply with those orders for filing of material or a list of affidavits relied upon.
A large part of the first hearing day was taken up by the husband sorting through documents until he identified those that he relied upon. It transpired that those affidavits were all but one of the affidavits filed on his behalf since the commencement of these proceedings. That included 16 affidavits (304 pages) by the husband, 10 affidavits (106 pages) by the husband’s friend, Mr T, and affidavits by 3 others. The husband also relied upon a Notice of Appeal of some 100 or so pages and other documents. The documents and materials upon which the husband relies are listed in exhibit “H1”.
I have also considered the following documents filed or relied upon by the Applicant, namely:
a)a 9 page letter under the letterhead of a young people’s organisation signed by an employee of that organisation, undated, annexed to the affidavit of the Applicant dated 01 February 2007;
b)a 13 page letter signed by a relative of the husband, dated January 2007, annexed to a further affidavit of the Applicant dated 01 February 2007;
c)an unsigned typewritten reference dated 3 February 2007 from the husband’s father which is Exhibit “H13”;
d)a printout from African Canadian Legal Clinic endorsed “Black don’t crack” which is Exhibit “H10”.
Those documents are relied upon by the Applicant without objection by the other parties who both consented for the letters to stand as affidavits notwithstanding that they are not sworn documents. The authors were not required for cross examination. The statements contained in the letters are not, in any material way, directed to or relevant to the issues for decision. However, no objection was taken to the admissibility of them. Similarly no objection was taken by the wife or by the independent children’s lawyer to the plethora of inadmissible material annexed to affidavits by the husband.
The wife relied on the material listed in exhibit “W1”.
The documents relied upon by the independent children’s lawyer, whose involvement I will come to later, relied on the material listed in exhibit “ICL1”.
All parties wanted to rely on some documents produced by Department of Human Services, Victoria (“DHS”) in compliance with a subpoena. The documents of interest to any party were tagged, photocopied, numbered and put into a court book which was exhibit “C1”. Each party was provided with a copy of exhibit “C1”. No party took issue with the admissibility of any of the documents included in exhibit “C1”.
Each party also relied on numerous exhibits.
Pursuant to orders which I made on 19 January 2007, the husband’s case preceded the wife’s case, notwithstanding that the wife is the applicant. The husband consented to this course and I was satisfied of the appropriateness of it because it enabled the wife and the independent children’s lawyer to hear the husband’s case, including the serious allegations of sexual abuse of the child by the wife’s brother in law Mr E, before they had to answer it.
The husband and the wife were both granted leave to adduce extra oral evidence in chief by themselves and their witnesses.
The husband and the husband’s friend, Mr T, and Mr T’s estranged wife were required for cross examination. The husband gave evidence in chief and was cross examined by counsel for the wife. The husband was cross examined for some time by counsel for the independent children’s lawyer but then refused to go back into the witness box and be cross examined further. That was the subject of a ruling made by me on the 7th day of the trial, 13 February 2007, the medium neutral citation for which is Adams & Adams (No 4 ) [2007] FamCA 92. The husband’s case was concluded without the independent children’s lawyer being able to complete his cross examination of the husband and, thereby, without the husband’s evidence being able to be tested.
Mrs T was not produced for cross examination. It follows that I can not accord the admissible parts of her evidence much weight at all.
I have disregarded irrelevant and inadmissible material in my determination of this case.
At the stage when the husband was actively participating in proceedings, he said that there were a number of witnesses from whom he required to obtain evidence. At an interlocutory stage, the husband had been directed to produce proofs of evidence of those witnesses but he did not do so. Nonetheless, the independent children’s lawyer secured their attendance at Court and they were called. These included DHS workers, Ms G, Ms M, Ms Y, Ms U, Ms Z and Ms D and Leading Senior Constable P. The wife’s parents Mrs H and Mr H, Federal Agent F and Federal Agent Q.
The husband led evidence, which was akin to cross examination, from the wife’s parents and the Federal Agents. However, a number of the witnesses upon whose evidence the husband said he wished to rely attended Court after the husband’s participation in the proceedings was restricted to listening and he chose not to participate more actively than that. The independent children’s lawyer adduced from those witnesses what evidence he considered would advance the matter.
In closing submissions, counsel for the independent children’s lawyer referred to the cross examination of the wife, which occurred after audio transmission from the court from which the husband participated had been muted, and the husband had not sought to participate further. Counsel for the independent children’s lawyer made the following observation[8]:-
But I must say, your Honour, […] we can't run his case for him. It must be said that the wife nonetheless was cross‑examined robustly, if I can use that phrase, as much as possible by the independent children's lawyer, and your Honour asked as many questions as you possibly could in order for us to make the effective inquiry, if I can use that expression, into the welfare of [the child].
I am satisfied that the same can be said of all of the witnesses who the independent children’s lawyer arranged to attend court on the basis that the husband had previously indicated he required them to give evidence. I repeat that if the husband had wanted to ask questions after my orders of 19 February 2007, he could easily and quickly have made the application which I required[9] but he chose not do so.
[8] Transcript of proceedings on 23 February 2007, page 39
[9] Discussed in Adams & Adams (No 6) [2007] FamCA 101
The husband and/or the independent children’s lawyer required the wife and all of her witnesses for cross examination. That was the wife’s friend Ms K, the wife’s sister, Mrs E and Mr E. The husband also required that the independent children’s lawyer’s witness, Ms L be cross examined. She is the Team Leader, N Contact Centre. Ms L, Ms K and the wife’s sister and brother in law were not cross examined by the husband because, by that time, the husband was not participating in the proceedings over and above being able to look on and listen to the proceedings from Court 2K.
I will now discuss my assessment of the parties and other witnesses from whom I heard viva voce evidence or who were cross examined. Aspects of their evidence also appear in the parts of these reasons that set out the relevant history.

The husband

There is a distinction between the husband’s behaviour in Court and my assessment of him as a witness.
The husband’s behaviour in Court was inconsistent. He was at times well behaved, appeared to be reasonable and capable of thinking through a proposition. At times he accepted direction and was polite. At other times he was abusive. On one occasion physically threatening to those sitting at the bar table.
The husband’s presentation as a witness was reasonably consistent in that he was an unsatisfactory witness most of the time. He usually did not respond to questions directly, if at all. He frequently resisted direction that he respond. He was ill mannered and disrespectful to counsel and the Court. The transcript will reveal numerous warnings by me that I would record him as having failed to respond to a question. The transcript will also reveal that when on a topic that he wanted to talk about, his answers were fluid and long to the point of rambling. My assessment is that he understood the questions asked of him but if he chose not to respond he would try to deflect it. For example the husband gave evidence that on 18 November 2006, Ms L of N contact Centre referred to him as “a little black bastard” and he said that he had recorded her having done so. However, when the CD relied upon the husband was played in its entirety, there were no such comments. On 13 February 2007, Mr Hoult, counsel for the independent children’s lawyer asked the some questions, transcribed as follows. Any words not attributed to me or to Mr Hoult having been made by the husband:-[10]
[10] Transcript of proceedings on 13 February 2007, pages 3 and 4
MR HOULT: Mr [Adams], yesterday we were able to hear some tapes of recordings that you had with various people. In relation to the recordings at the contact centre on or about 18 November with Ms [L], did you tell Ms [L] that you were recording these conversations?---Yes, I did.
MR HOULT: Where was that on the tape?---It wasn't recorded yet. The second half of the tape was only recorded after I had told - after we've talked, and I said to her. "Well, I will record this."
MR HOULT: Mr [Adams], have you edited these tapes [of Ms [L] on 18 November 2006]?---No, I have not.
MR HOULT:   Because you agree, don't you, that in relation to, in particular 18 November, you've recorded some comments and conversations with Ms [L], but not all conversations and comments. Correct?---The fact is I recorded what I could get on the recording, and that is what you have. Now, be happy with it or take a hike.
MR HOULT:   Mr [Adams], what do you mean ‑ ‑ ‑
HER HONOUR:   I beg your pardon? Repeat that answer please. Repeat the answer, witness?---I said that what was recorded was a fact. Now I said he can take it or take a hike. That's what I said.
MR HOULT:   Did you not say, Mr [Adams], be happy with what you've got?---Just deal with it.
MR HOULT:   Mr [Adams], just answer the question if you don't mind?---It's a fact. You've got it. You've got the recording. There's nothing been edited. You're clasping for straws because you opened up a Pandora's box yesterday because you are disgustingly corrupt.
MR HOULT:   Mr [Adams] ‑ ‑ ‑?---If I was you, I would stick my head in the sand.
MR HOULT:   Mr [Adams], for example, the comment - and this is a quote from you - "arrogant black bastard", why is that not recorded?---Perhaps you should ask the recorder why it didn't pick it up.
MR HOULT:   I'm asking you, Mr [Adams]?---I am not a machine. I'm a human being. You can ask the machine why it didn't pick it up.
MR HOULT:   Her Honour will make a note of that answer but, Mr [Adams], when you say that the machine didn't pick it up, you mean that if we heard the tape, we would hear a mumble or there would be silence or something like that where that phrase ‑ ‑ ‑?---You wish, because that's what you'd like to hear, isn't it? What you will hear is what's been recorded. Now, it's a fact it's been recorded and everything is on that tape, and that's it. You're not going to get anywhere with this one. So just take it and move on to the next thing.
MR HOULT:   Mr [Adams], when you were at the contact centre, do you make decisions from time to time as to when you're going to record something?---Do I make decisions? No. What do you mean do I make decisions?
MR HOULT:   Because it's clear, Mr [Adams], that you never chose to record everything that happened that day?---That's what you think.
MR HOULT:   We're asking you?---Where's your evidence? Where's your evidence for that?
MR HOULT:   So I take it from that answer ‑ ‑ ‑?---You don't have it.
MR HOULT:   Mr [Adams], I take it from that answer that there is a recording of everything that day. Am I right?---What?
MR HOULT:   Mr [Adams], I take it from your answer that there is a recording of everything that took place at the contact centre on
18 November. Am I right?
---Look, you asked me if - so you're trying to be tricky, and I've told you that everything of 18 November, Mr Hoult - you bent barrister, whatever - I don't know how you got your position. Everything is on that tape. So just take it or move on to the next point.
MR HOULT:   Mr [Adams]‑ ‑ ‑?---You don't have a case. You don't have a duty to investigate any further. You've got your facts deal with it.

The husband’s failure to answer questions wasted a considerable amount of time in this case. In the process of trying to deflect questions put to him in cross examination, the husband also insulted counsel for the mother and counsel for the independent lawyer which was most inappropriate because they were only doing their job. I regret that Mr Hoult and Mr Combes were exposed to the husband’s unacceptable conduct, it is more than professionals should have to tolerate. The fact that each pressed on quietly and without taking exception, resulted in the husband being extended more then adequate opportunity to say anything that could assist me in making a determination about the child’s welfare and where his best interests lie. However, counsels’ broad shouldered approach does not detract from the fact that for the overwhelming majority of the time during which he could be heard, the husband acted in an inappropriate manner without observing basis courtesies. The consequence of their forbearance is that I have no doubt that, if the husband had had something relevant and probative to say, he had a more than adequate opportunity to do so.
I am satisfied that the prolongation of his evidence and, therefore, the case, was done intentionally by the husband in the misplaced hope that the Court might run out of hearing time and not be able to complete the matter at the sitting at which it was commenced. As I discuss later, the husband originally agreed with an estimate of more than 2 days and not more than 5 days but fairly early on in the trial revised his estimate to “26 days” or thereabouts.
The nature of the enquiry in a parenting case does not necessitate that findings be made as to credit of parties or witnesses. However, this is an unusual case in which it is necessary and proper for me to make credit findings. I will mention a few instances in which I am satisfied that the husband gave evidence which was untruthful.
The husband tape recorded conversations with various persons including staff from N Contact Centre and with Leading Senior Constable P of Victoria Police. The husband gave evidence that persons whose conversations he taped were well aware that they were being taped because he used a hand held recorder which was conspicuous. His evidence was that he used it as a professional journalist would use a recorder when openly recording an interview. Ms L of the N Contact Centre and Leading Senior Constable P each gave evidence that they had no knowledge that their conversations were being recorded. I accept their evidence and reject the husband’s evidence on this point. This constitutes an adverse finding as to the husband’s credit.
As indicated, on 6 February 2007, I directed that the husband be detained by the Australian Federal Police until such time as he could comport himself appropriately. That occurred at approximately 10:30am. Subsequently I was able to make arrangements for the husband to participate in the proceedings from another Court room, with a Court Officer and with video facilities which would enable him to see and hear what went on in my Court room and visa versa. At that point there was no reason why the hearing could not recommence because, even though the husband had not indicated that he would behave appropriately, the potential for his behaviour to be a risk to the safety of others was minimised by his remote location and the presence of Federal Agents in the body of the Court room from which he was to participate.
There was delay in recommencing the hearing and, eventually, I was informed that the Federal Agents had advised that the husband was behaving in such an unsettled manner that it would not be safe to return him to Court. That occurred after 12 noon. Shortly prior to lunch, I reconvened the Court, without the husband, and formally ordered that he be released and the matter be adjourned to the next day.
On 7 February 2007 the husband appeared. From the bar table he made a series of allegations about mistreatment perpetrated by the Federal Agents. In particular, he said (referring to the husband in the first person and the Federal Agents as “they”) :-
a)They bashed me up;
b)They twisted my ankle;
c)They dislocated my shoulder;
d)I laid on that floor in that cold cell for the whole day at which time apparently you made orders for me to be released and that I arrive here today;
e)Whilst I lay on the floor as if unconscious, they kicked me on the side of his face; they carried me in the shape of a wheelbarrow which even being as flexible as I am, I found hard and from there they swung me into the lift, throwing me against the lift almost to the point where I fainted;
f)I was carried in the shape of a wheelbarrow by three – no six - men. I couldn't see them except for their shoes;
g)I was dragged all the way from those cells into the lift, thrown against the lift, and then the police assimilated a sort of buggery behaviour as my legs were in the air and they were carrying me, and laughing, joking and making very insulting comments. They were assimilating having sex with me and they did that because they say it's under their orders and your orders;
h)Then I was dragged down the stairs. As I said, I could only see feet. My lips and my nose, my chest, sternum, almost passing out - dragged across the stairs like that to which I was thrown out around 4:00, 4:30;
i)I was thrown out, just like that, again as they did in the lift and before they got out they said to each other “Be careful now. We're going to be seen by people,” because they thought I was unconscious, and then they said, “No, everyone quiet and professional. Look strong,” blah blah blah, and I heard all of that, and so did I hear most of the things that were discussed by security and police, even though they thought I was dead or asleep;
j)yesterday I saw a doctor;
k)the media came and took footage of everything and what happened;
l)I was left there to lie down outside the side staff door in the forecourt of this building, even though people were coming in and outside of the court doors;
m)I was blindfolded, I couldn't see. So I called to people going in and out of the building but I didn't know how far - the distance they were away from me, because I was blindfolded, I couldn't see. I had [Mr T’s] phone with me which I knew to be in the shoes, because that's what they said. So feeling my way around the stairs, I finally came to. So [Mr T] was looking for me. I got the phone and pressed to answer it but every time I did so, I switched it off because I've never tried to answer a phone without looking. So, I kept answering and it keeps switching off.
n)about half an hour later the Victoria Police arrived, and I asked them to make a call to this number. I said to them, “These are the numbers to make a call and tell them where I am, because I don't know where I am.” I couldn't see.
o)The Victoria Police asked me for my name, and I said, “I can't speak. I'm blind,” and they couldn't understand. I was so unconscious, and then they slapped me and tipped me to try and bring me back alive, but my eyes were kind of shaking, shaking, but I wasn't there. I couldn't even speak back to them.
Significantly, the husband alleged from the bar table (again not on oath) that the mistreatment which he described as having been perpetrated on him was specifically directed by me. That is, that I ordered that he be “tortured”. Furthermore, that I had put chemicals or pepper spray in his cell. He was not sure which, but said that:-
I don't know what you did, but the doctor will tell you what happened after her tests yesterday.
As will become apparent, I heard evidence from the Federal Agents whose evidence conflicted with the husband’s allegations of abuse and ill treatment. The husband’s statements about the Federal Agents and the security personnel are not supported by security footage of him recorded in Commonwealth Law Courts Building (“this building”). Three compact disks of closed circuit camera (“CC TV”) footage were tendered in evidence and marked exhibit “ICL5”. The footage is in 10 minute intervals, much of it is concurrent. It is as well to set out the sequence of events now.
Disk one records between 10:20am and 10:30am on 6 February 2007 and depicts the husband being escorted out of court 4D in the company of the Federal Agents. He was taken by lift to the secure cell on Level 1 of the building where he remained approximately until 11:00am.
Around 11:00am the husband was moved to the holding cell on Level 2 which is adjacent to court 2K. Once in the holding cell he sat on a bench and spoke to Mr T, the Federal Agents having allowed Mr T into the cell. Mr T and the husband interacted in an animated fashion with the Federal Agents. The CC TV recordings are visual only. However, it is apparent from hand gestures that the Federal Agents were trying to get Mr T to leave the cell. At various times the husband stood between the Federal Agents and Mr T as if to shield Mr T from the Federal Agents. Mr T and the husband were constantly gesticulating.
At approximately 11:55am Mr T was forcibly removed from the holding cell. My assessment of the actions recorded in the CC TV footage is that the Federal Agent used no greater force than was reasonably required to remove Mr T.
After Mr T was removed, the door to the cell was closed. The top half of the door is a glass panel. There is a similar glass panel running along that wall. The Federal Agents or any persons in charge of the holding cell have a clear view inside the holding cell and the husband could see out. The recording in segment 7 of disk 1 of exhibit “ICL5” is taken from the perspective of looking out of the cell and into the area occupied by the Federal Agents. The footage shows that, after Mr T left, and the cell door was closed, the husband began to slap his open hands against the glass panel in the cell door. Then he started to slap his open hands against the sides of the door. The husband’s slapping was vigorous. I accept the evidence of the Federal Agents to the effect that it was hard slapping which made a lot of noise and reasonably led them to be concerned that the glass may break if it was not reinforced glass.
The husband moved down the wall and began slapping the glass observation panel and at certain times slapped the cell door with one hand and a glass observation panel with the other hand. Then the husband’s hips began to sway whilst he continued slapping the glass panels. His feet started to move in dance-like steps. He was prancing up and down rhythmically. He appeared to have complete freedom of movement. He then started dancing away from the glass panels. For the avoidance of doubt, and on one occasion when the relevant footage was being played in court, I asked the husband if he was dancing to which he replied “make what you will of it Victoria” or words to that effect from which I inferred that he does not deny that he was dancing. On two or three occasions he kicked the door to the cell. The footage in the holding cell concludes at approximately 12 noon with the husband continuing to prance around the cell and bash the wall and the cell door.
There is no footage of the husband being moved from the holding cell adjacent to court 2K back down in the lift to the basement area. Footage commencing with disk 3 of exhibit “ICL5” depicts the husband in the custody of the Federal Agents being taken from the lift in the basement area to the secure cell. There is no footage of the husband whilst held in the secure cell, it being a facility in which no cameras are permitted to be installed because of the lavatory placed within the cell.
The footage recommences with segments 9 and 10 on disk 1 on exhibit “ICL5” with the husband being removed from the building and placed outside the building. Segments 11 to 21 of disk 2 of exhibit “ICL5” run from 4:20pm until 6:10pm during this time the husband was lying on the concrete tiles either face down or face up. He was observed by various members of Victoria Police who were called to render assistance. They rolled him over but then left the area without appearing to take any further action.
The CC TV footage depicts the husband being able to move his arms so that he could rest his head on them.
The husband was collected by Mr T at about 6:10pm.
There are some breaks in the CC TV footage which are not attributable to the restrictions on visual or audio recordings of prisoners in custody, such as the secure cell by reason of the open lavatory. I caused enquiries to be made of the Registry Manager as to the missing footage. I was advised, and I relayed to the parties and their practitioners, that a number of CC TV cameras within the building were non operational. Some footage had been made but automatically taped over because it was not preserved within a period of 5 or 7 days of being taken and the system works by re-using tapes on a loop basis. The loss of footage is unfortunate. It would not have occurred if any party seeking to rely on had requested that it be preserved but that is a lesson for the future. There is nothing to suggest that there is any other footage in existence which has not been made an exhibit.
I find that the husband’s allegations against the Federal Agents and the security personnel are false. In the absence of evidence from an appropriately qualified person to the effect that the husband is delusional I can only assume that the false allegations were made by him with the intention of misleading the Court. Although the husband did not make the allegations on oath, he said them from the body of the Court where he is still expected to tell the truth. His false allegations reflect poorly on him and poorly on his judgment.
Finally, I draw a distinction between evidence or assertions which the husband made falsely and evidence and assertions which he made and which I am satisfied are wrong and without foundation. For example, the husband contended that the wife is overly directional and condescending of him and that would be evident from the communication books passing between them. Not only did an examination of the communications reveal that not to be the case, it demonstrated that the husband was overly directional and condescending in his messages to the wife. However, I am satisfied that this incorrect evidence was given by the husband out of a lack of insight rather than dishonesty. In terms of parental capacity a lack of insight, as significant as that pertaining to the husband, is more of concern to me than if the husband was merely dishonest.

The wife

At the conclusion of the trial, it was submitted by the independent children’s lawyer that, in essence, the wife was a sound and believable witness whose evidence I should accept. I had earlier described some of her evidence as being vague, particularly, in relation to financial matters and when monies had been deducted from her account. The wife gave evidence that in January 2004 the husband was “begging” her to increase a personal loan from $5,000 to $7,500. She deposed that she felt pressured into it at the time and “I was still in love with him”. She agreed with the husband that she would increase the loan but did not act on it further. She denied that a signature attributed to her on a loan agreement dated 29 January 2004[11] is her signature and stated on oath that it was a forgery. She said that she first saw the document on 5 February 2007.

I was surprised that the wife did not know that the loan had been increased unbeknownst to her when the repayment instalments increased. They were being taken out of her bank account and the husband had fallen into arrears and she had received letters about recovery action. Also, she could not give evidence about the fee structure of the school at which she is employed and at which, most relevantly, she wants the child to be enrolled as a student. She did not know about any concession rates applicable to the children of school staff. Apropos of her inability to give evidence about financial matters, counsel for the independent children’s lawyer made the following submission.
[11] Exhibit “W10”
May I say, your Honour, that one must analyse the mother's evidence in relation to her own state of life at the moment. She is depressed. It doesn't seem to be serious, your Honour, and she's medicated, but she's depressed. She's a single parent. She's not getting any child support. She's been in court repeatedly over the last year, and that's an issue that shouldn't be minimised. She has put up with abuse. She's referred to by the husband repeatedly as a fanatical Christian. Issues of her own private sexual abuse have been brought up.
[…]
She's had to engage her parents in these proceedings. She's had to deal with a child not being returned after a recovery order and somehow being blamed. She's turned up to contact centres at the [N] contact centre and been escorted out, and driven down to the police station while the husband is rattling the doors and yelling out to the child.
[The child’s] mother might have just had enough, and that might give some explanation to - not necessarily a flat demeanour in court, but some explanation to perhaps a forgetfulness or a not knowing, because the independent children's lawyer also found it interesting, your Honour, that the mother couldn't recall some very basic things and wasn't that forthcoming on a number of issues, like schools and ‑ ‑ ‑[…] basic financial matters, your Honour. […] Your Honour has to, in my respectful submission, conclude that she's a good mother. She is a good mother. There can be no criticism that can be seriously levelled at her, and when I say "no criticism", one is always on dangerous ground criticising the role of mothers, but I mean in the context of these proceedings.
When I expressed scepticism about lack of detail in the wife’s evidence, vis a vis financial matters, I had not paused to consider the unremitting pressure she has been under and nor had I thought through the fact that in responding on a continual basis to the barrage of insults and provocations directed to her by the husband she would, in real terms, be left with inadequate resources to plan ahead in other areas of her life. On reflection, I accept the submission of the independent children’s lawyer that the wife is worn down and exhausted and that I ought to excuse apparent lapses in her recollections or in her ability to plan ahead. The financial history was relevant to her relationships with the husband post-separation. It has less bearing on my determination than her other evidence, including responses in cross examination during the two days over which she gave evidence, 20 and 21 February 2007.
The wife gave evidence that the husband is assessed to pay child support of $116.50 per month for the period 1 January 2006 to 30 November 2006[12] based on a child support income attributable to him of $21,750. However, she received only $600 in 2006 and that was by way of interception of an income tax return payable to the husband.
[12] The administrative assessment of child support dated 28 November 2006 is Exhibit “W12”
The wife denied, on oath, an allegation made by the husband that she had hit the child when he had run over her foot with the wheel of a scooter or similar toy prior to separation. She alleged that the husband had been violent to her on one occasion in February or March 1999 when he slapped her across the face. She said that she was terrified and fled to some friends.
She gave evidence in the third week of the trial. She described her impression of the husband’s behaviour during the trial as “unpredictable, I am scared in a sense because I do not know what he will do next.” She said that she always found the husband to be “unpredictable. I think that I have done everything I can do to try to minimise his behaviour.” She sought counselling for herself at the K Community Care and V Community Centre but was vague as to dates. Counselling at the V Centre was to assist her with management of the child’s disruptive behaviour after seeing the husband. She did not go back after two sessions because she realised that the husband would have to give permission for the child’s involvement in the counselling.

I observed the wife in Court for three weeks and in the witness box for 2 days. She has a reserved composure. I think that she struggled whilst giving evidence, particularly in relation to financial matters, but I am satisfied that it was just detail that she could not recollect, if it had ever been known to her.

I had no sense of her giving evidence falsely. Apart from being a far more satisfactory witness than the husband, I am satisfied that she was a truthful witness. Where there is a conflict between the evidence of the husband and the wife, I prefer the evidence of the wife.

Mr T

He is the husband’s friend, landlord, employer and litigation support person and I mention him in various capacities throughout these reasons, consequently I will not re-state his evidence here. He gave evidence on 14 February 2007 having affirmed affidavits upon which the husband relies on 1 June 2005,

6 February 2006, 21 April 2006, 26 April 2006, 9 May 2006, 27 October 2006, 29 October 2006, 15 November 2006, 17 January 2007 and 12 February 2007.
Mr T was married to Mrs T who affirmed an affidavit on 29 January 2007 upon which the husband sought to rely. Mr T gave evidence that his former wife was too busy to attend court as she was going to Japan shortly. That evidence was not challenged in cross examination.
Mr T conducts a business called “[GB Company]” which imports electronic bathroom fittings. He employs the husband on a casual basis and has done so during the last 18 months. The husband was paid approximately $30,000 to $39,000 per annum in the last financial year. Allocation of work is casual and fluctuates. The husband’s pay is calculated at an hourly rate he was employed to complete a public relations summary statement and prepare a marketing document. Mr T said that he was not aware of what other income the husband derived. In terms of expenses he has agreed with the husband to accept $750 per month as a contribution to rent, but it is an informal arrangement and sometimes when Mr T forms a view that the husband is unable to afford to make this contribution “I help him out”.
Mr T met the husband in approximately March 2004 when he was a regular customer at a City restaurant. He saw the husband a couple of times a week and describes him as “everyone’s favourite waiter”. Mr T and the husband commenced to share accommodation at their current residence on 1 March 2005.
Mr T confirms that the husband had raised with him that the child had made certain comments such as “[Mr E] … pull penis”. He could not recall when the conversation took place. He could not recall whether the conversation took place before or after 17 January 2006.
Mr T affirmed an affidavit on 6 February 2006 which was prepared by Ms Rigoli, solicitor for the husband to be relied upon by the husband at the final hearing which was set down for 9 February 2006. No mention is made in that affidavit of any concerning statements made by the child or any concern by Mr T or the husband that the child could have been sexually abused. Mr T agreed that the alleged statements from the child were shocking and disturbing. He testified that he considered the possibility of sexual abuse to be a very serious allegation to make. He said “I wanted to speak to people” or words to that effect. Nonetheless, he did not raise the sexual abuse issue with Ms Rigoli at all. His evidence was that Ms Rigoli sent a draft affidavit to him on or about 3 February 2006 for approval and that he subsequently affirmed it without significant amendment. When asked why he did not raise the issue with Ms Rigoli having regard to the fact that the affidavit was affirmed for the purpose of a final hearing, he responded “I did not know much about Ms Rigoli”. He said “I wasn’t prepared to raise … I knew the husband was trying to consult the wife”. When pressed, he responded “I was just not ready to tell Ms Rigoli”.
I am satisfied that Mr T was considering the possibility of sexual abuse prior to 6 February 2006. On or before Wednesday 1 February 2006, Mr T had sent an e-mail to the National Administrator of Advocates for Survivors of Child Abuse[13], addressed to whom it may concern, saying:-
I have just had a look through your website but could not find any information about signs of abuse in toddlers.
I am a teacher and have some concerns about a close friend’s toddler who is 2 and ½. I realise the scope of such an allegation were it to be made. I would like to obtain some information first then perhaps speak to someone about it.
[13] Exhibit “CB1”, page 27
Mr T is not employed as a teacher although he does hold some qualifications to teach. Mr T received a reply, at 9:33am on 1 February 2006[14] which referred him to NAPCAN. He then sent the same message to NAPCAN[15], together with a “brief of what has occurred so far”. He received a reply[16] to the effect that the parents ought to be referred to the police sexual offences unit and “his parents should not allow the child further access with the uncle …”.
[14] Exhibit “CB1”, page 26
[15] Exhibit “CB1”, pages 27 and 28
[16] Exhibit “CB1”, page 27
Mr T gave evidence that he had heard the child say the words “[Mr E] pull penis”. His evidence was that he had not heard the child say “[Mr E] big penis”, “Papa big penis” and that he would not be concerned if the child had said “Papa pull penis” because “it is how he says it”. He testified that on one occasion the husband had placed a telephone call to him whilst he was changing the child’s nappy and ask him (Mr T) to listen to what the child was saying about Mr E.
Mr T gave evidence that from mid-January 2006 to June 2006, the child made a number of “disclosures”. He had heard the child say in the car “[Mr E] pull penis” with “anger and seriousness”. He described how the child would sit in the car and stare out the window and then “snap out of it and say, ‘I don’t want to go home’”. He said that, whereas the child was previously a happy child, he would sit on the floor and look into space “I could see he was sad” and he would “interrupt the sadness with an activity.” He testified that he observed that the child when “on the way back to Mum, was very sad.”
Mr T confirmed that he accompanied the husband into the cells on 6 February 2007. He had deposed[17] that the Federal Agents “repeatedly told me that I could not accompany them to the holding cell. I ignored their demands and followed the three to the holding cell.” The evidence of the Federal Agent was that Mr T was permitted to accompany them.
[17] Affidavit of Mr T affirmed on 12 February 2007, paragraph 13
I am confident that, had the husband and/or Mr T actually thought that the child had been sexually abused by wife’s brother in law, Mr E, prior to 3 February 2007, then they would have mentioned it in the affidavits which they each swore in anticipation of the final hearing which was due to commence on 9 February 2007. It is likely that they discussed raising the allegations and then decided not to do so until just before the hearing so that the wife could not possibly answer the allegations on the day and the trial could not commence, but that is speculation. It is sufficient for my assessment of Mr T’s veracity as a witness for me to be satisfied (as I am) that if he held a genuine belief that the child has been sexually abused as at 3 February 2007, he would have said something to the solicitor acting for the child’s father and he did not.
He also deposed that he and the husband had not been permitted to make a telephone call to obtain legal advice[18]. Mr T confirmed that, in spite of being directed not to makes a call, he proceeded to make a call anyway, which call he describes as follows[19]:-
I managed to make one phone call to a friend who works on talk-back radio then the officers threatened again that they would confiscate my phone and arrest me if I didn’t leave.
Under cross examination he conceded that he had been told not to use his telephone in the cell but that he had been advised that he could use his telephone freely if he left the secure area. Mr T did leave to make calls.
[18] Affidavit of Mr T affirmed on 12 February 2007, paragraph 14
[19] Affidavit of Mr T affirmed on 12 February 2007, paragraph 17
Mr T returned to the Court building at about 2:00pm, which may have been in response to being requested by the Federal Agents to do so, to collect the husband’s belongings. He was advised that the husband had been released from custody and was free to go. However, he did not take the husband, only the husband’s belongings. Mr T’s evidence was that the husband had directed him to leave and “I inferred that he wanted to stay in the cells”.
Mr T gave evidence that when he collected the husband from outside the court building at about 6:10pm on 6 February, the husband said that he could not see and said that he thought that something had been put in the cells which had blinded him. Mr T took the husband to a doctor who came out to the car and washed the husband’s eyes with gauze and water and then the husband could see. Mr T deposes that he took photographs of the husband’s ripped clothing and bruising that evening and the photographs are annexed to his affidavit.
Mr T alleges that he was physically mistreated by Federal; Agents on 6 February 2007. He deposes[20] “[one] of the officers pushed me into a wall and shoved me along a corridor while shouting offensive abuse at me”. On

7 February 2007, the husband informed the Court that Mr T was not in attendance because he was undergoing medical treatment due to injuries sustained at the hands of the police. Mr T testified that “I needed to check if my shoulder was OK. It is fine, fine. Of course, I had pain. I have been having chiropractic treatment – I wanted to see if everything is OK. I know my GP quite well, he’s close by.”
[20] Affidavit of Mr T affirmed on 12 February 2007, paragraph 25
Mr T gave evidence that “[The child] is a big part of my life and my kids’ life.” It is also clear that he is enmeshed in the husband’s legal proceedings, he confirmed that he had made or assisted in formal complaints against the independent children’s lawyer[21], Connolly FM (possibly), Hughes FM and

Mr Hoult of counsel.
[21] Exhibit “ICL4”
Mr T was asked about the prudence of involving his son, K, by having him record the execution of the recovery order on 20 June 2007. He said “I did not want my kids exposed. They were vacuumed into it.”
Mr T was asked whether he had a solicitor with him on 18 November 2006 when he had an open line to the husband. The husband had asked Ms L and the attending police officer to “speak to my solicitor” and offered them his telephone. Mr T said that there was no solicitor present.
Mr T gave his evidence in a calm and controlled manner but I do not accept his evidence in relation to disclosures by the child or the allegations of mistreatment of him at the hands of the Federal Agents on 6 February, 2007.
From the video footage of 7 February 2007 which I have seen, it appears that the Federal Agents showed Mr T forbearance rather than conducting themselves aggressively. I do not accept that Mr T was injured in any way on 7 February 2007.
I do not accept Mr T as a truthful witness insofar as I have discussed his evidence above.

Mr E

Mr E, the wife’s brother in law is the person in respect of whom the husband makes allegations about the sexual abuse of the child. He attended Court to be cross examined on 21 February 2007 having sworn an affidavit for the wife on 17 January 2007 upon which she relies. At this stage, the husband was in another Court room and not permitted to be heard unless he made an application to do so. Given the husband’s sexual abuse allegations and the fact that the trial was in its 19^th day, I was not prepared to excuse Mr E from attending because, had the husband decided to participate, the trial would have been even further delayed. Moreover, I considered it necessary to observe

Mr E’s demeanour for however brief a time he was required to give evidence.
Mr E denies each and every allegation of the husband of which he is aware. He denies having pulled or bitten the child’s penis or caused or permitted the child to bite or pull his (Mr E’s) penis.
Mr E said that he may have changed the child’s nappy on one occasion but not more than once. He denies ever having changed the child’s nappy in the early hours of the morning as is alleged by the husband.
Mr E gave evidence that he had consented to an intervention order being made against him, on the husband’s application, last December 2006. He said that the reason for doing so was, had he opposed the application, he was advised (and accepted) that the case would have been adjourned for a contested hearing in the New Year with the possibility of an interim order being made against him which prohibited him from having any contact with the child at all. His evidence was that he and the wife’s sister thought that it was very important that the whole family be able to be together for Christmas so, for that reason alone, he had not opposed an order to the effect that he could not be left alone with the child.
Mr E presented as an agreeable man who appeared to be telling the truth. Mr E’s evidence was effectively unchallenged and I accept it.

Ms Y

Ms Y, worker from the Department of Human Services (“DHS”) gave evidence on 19 February 2007. Her involvement in this matter relates to the last round of DHS investigations into the husband’s allegation that Mr E has sexually abused the child. Ms Y confirmed the accuracy of her file note dated 8 August 2006 which appears at pages 76 to 82 of the book of copy DHS records which is Exhibit “C1”.
Amongst other things, Ms Y was cross examined about the statement in her file note[22] that “[the] father’s housemate is a member of the “Blackshirts” – a group that oppose single mothers. Mother believes that the father might now be affiliated with this group. Housemate is [Mr T], who has two children, [J] – 13 and [K] – 11 (no CASIS history found).” She confirmed that she had no idea as to whether or not Mr T is a member of a group called the Blackshirts. I accept that the statement that Mr T is a member is attributable to the wife, not Ms Y. I note that there is no evidence before me which supportive of the proposition that the husband and/or Mr T are members of a group called the Blackshirts.
[22] Exhibit “C1”, page 78
During the interview with Ms Y, the wife provided her consent in writing for the protective workers to make enquiries about her and the child of the occasional care facilities used by the wife in the K area and a Melbourne Crèche, V Medical Clinic (Dr I’s rooms), K Community Care and V Community Health[23]. The wife also gave a written undertaking, first, to agree to accept visits from and co-operate with DHS and, second, to agree not to allow Mr E any unsupervised contact with the child until advised otherwise by DHS[24]. In all, the protective workers assessed the child as being at no immediate risk of harm in the care of the wife.
[23] Exhibit “C1”, page 49
[24] Exhibit “C1”, page 14
Ms Y makes reference in her file note to there having been “several unsubstantiated notifications made to DHS involving these issues”[25] and elsewhere to background information being an intake record “31/03/06 – 04/04/2006”[26]. Documents pertaining to earlier notifications in relation to the child appear at pages 87 to 99 of Exhibit “C1”. Those records indicate that a notification was received on 23 February 2006 about the child being at risk of significant harm due to sexual abuse whilst in the care of the wife within the meaning of s 63(d) of the Children & Young Persons Act 1989 (“C&YP Act”). It is recorded[27] that “child is currently having overnight access with his father and returns to his mother’s care on Saturday. Information provided does not demonstrate that the child is at immediate risk of harm at this time”. A subsequent note clarifies that the alleged, but not accepted, risk of sexual abuse was said to arise whilst the child is in the care of the wife. The case is recorded as having been closed on 24 February 2006. However, there are a number of recorded enquiries made by protective workers between 31 March 2006 to 3 April 2006, the results of which appear to be consistent with the file being closed.
[25] Exhibit “C1”, page 81
[26] Exhibit “C1”, page 80
[27] Exhibit “C1”, page 89
The earliest notification is recorded as having been received on 4 April 2005 about substantial emotional trauma within the meaning of s 63(e) of the C&YP Act. DHS closed its file in that regard on 8 April 2005. It appears[28] that the notification followed on the husband having removed the child from the wife’s care on 2 April 2005. The records[29] indicate that DHS had no concerns about the wife’s care of the child and there was “no information to suggest that he is at immediate risk of harm if he continues to be with his father” and that “[both] parents have legal rights to child given there are no orders in place.”
[28] Exhibit “C1”, pages 98 and 99
[29] Exhibit “C1”, pages 99
Having observed Ms Y give evidence and be cross examined, I accept her as a truthful witness.

Ms U

Ms U, worker from the Department of Human Services gave evidence via telephone link on 19 February 2007 she was unable to give evidence personally due to a medical condition. She confirmed that the wife was observed by her and Ms Y on 8 April 2005 to respond appropriately to the child and there appeared to be an appropriate “mother/child relationship” in place.
She confirmed that she had never met the husband and that there was no interview with him following a direction from her superiors, Ms J and Ms M.
I accept her evidence.

Ms G

Ms G, worker from the Department of Human Services gave evidence on 14 February 2007. Documents relevant to her included some in the book of extracts from DHS files which is Exhibit “C1”.
Ms G is a protective worker who was acting team leader for three weeks prior to the Department closing its file for the investigation into the child’s welfare, in particular, sexual abuse, from 21 July 2006 to 4 September 2006. Ms G, together with Ms M, Unit Manager were consulted on closure of the file. Ms G did not have personal contact with the wife, husband or the child but liaised with the protective case worker, Ms U.
The husband cross examined Ms G as to why she did not direct the protective workers to contact him and to interview him or Mr T prior to making a decision to close the investigation. Her evidence was that she had been requested by senior management not to contact the husband. Her understanding at the time was that the husband had “been sending e-mails and there was lots of communications” between the husband and senior management within the Department. It is confirmed in her file note of 11 August 2006[30] that Ms G was advised by her team leader that neither the husband nor the child were to be interviewed.
[30] Exhibit “C1”, page 72
She also gave evidence that protective workers, Ms U and/or Ms Y had contacted various professionals as such as a counsellor upon whom the wife had attended twice, a child care worker and the medical practitioner for the wife and the child. She advised that the wife and child were seen in interview and that the protective workers had formed the view that the child was not at immediate or significant risk of harm.
Ms G presented as a reasonable and helpful witness. I accept her evidence.

Ms M

Ms M, from the Department of Human Services gave evidence on 14 & 19 February 2007 and some evidence given on 19 February 2007 was by telephone. She was the unit manager at the time of the Department’s investigation into the child’s welfare, in particular, sexual abuse, from 21 July 2006 to 4 September 2006.
Ms M had no face to face contact with the wife, the child or the husband but the Unit by which the investigation was conducted was under her supervision. She gave evidence that Ms U, who was one of the protective workers on the case, was unfit to attend court to give evidence and has been certified as not currently fit for operational responsibilities. Ms M testified that Ms U has been shifted to other work, non-operational work, within the Department.

This is a final hearing of three weeks duration. Whilst I estimate that the husband wasted at least one half of that time by acting disruptively or not giving direct answers or making applications which failed, a great deal of evidence was given and tested. Of course, parenting proceedings are never final in the sense that children and their parents’ circumstances change and arrangements may need to alter as a consequence of those changes. However, absent a significant change in circumstances in, say, the husband’s attitude to the wife, the child and coupled with an appreciable and positive change in his behaviour, I do not envisage that the husband would be entitled to a second hearing. The principles to be taken into account by the Court when it is contended that one party is seeking re-ligate what has already been decided are well settled[151].
[151] Rice v Asplund (1979) FLC 90-725 & KB & TC (2005) FLC 93-224 at 79,695
It is not my role to prescribe the circumstances in which either of the parents may subsequently be permitted to re-litigate this matter. However, in the context of considering whether I should make the order sought by the independent children’s lawyer and the wife, I am unable to see how an explanation by a psychiatrist of the husband’s unacceptable and at times bizarre behaviour since March 2005 is going to constitute a “change or fresh circumstance” in the context approved of by the Full Court in KB & TC. An explanation of why the husband acts in the bizarre way that he does is unlikely to be of assistance to a subsequent court unless it is coupled with some expert evidence which identifies whether any condition the husband has is amenable to treatment, what the treatments is, that the husband has complied with the treatment and that the treatment has had some effect and that there is a favourable prognosis. In summary, any future proceeding must be evaluated by the judicial officer before whom it comes. I don’t think it is appropriate for me to erect barriers now. That said, the kind of expert evidence sought by the independent children’s lawyer as a pre-condition to the husband re-filing would appear to be the minimal requirement. An application supported by anything else may well attract an application to enjoin him from issuing any proceedings without leave of the Court.
Finally, there is no indication from the husband that he is contemplating any psychiatric assessment of himself. I have discussed above the orders by Brown J which facilitated the husband adducing psychiatric evidence from an expert of his choice and the fact that he declined to do so. As counsel for the independent children’s lawyer mentioned in his closing submission[152]:-
[…] it was made clear in submissions that were made on 10 November by Mr Moore, who was appearing for the wife at that stage, how important psychiatric evidence would be. The husband, when asked about this or when issues were raised about psychiatric evidence in this case, sat in court last week and said, "No. Your Honour [Bennett J] should be mentally examined." He made that issue three or four times.
[152] Transcript of evidence on 23 February 2007, page 31
I infer that the husband is not much interested in being psychiatrically assessed. In the present case, I am satisfied that I should not make the order sought by the wife and the independent children’s lawyer. Finding out why the husband acts the way he does may be a means to and end but not an end in itself.
Finally, I am satisfied that these proceedings have been an exhausting process for the wife and have made her ability to care for the child very onerous. I am informed, and accept, that the wife’s legal costs have long since exceeded the usual cap imposed by Victoria Legal Aid for funding in family law proceedings, as has the independent lawyer. As a result of my determination, which includes that I am satisfied that there is no unacceptable risk to the child of sexual or other abuse if he lives with the wife, this matter will cease to be classified as a Magellan matter. The wife and the independent children’s lawyer will lose the preferential funding considerations applicable to Magellan cases which, to date, have enabled the wife to remain legally represented and for the independent children’s lawyer to remain in these proceedings. The fact that all relevant witnesses have been heard from and the wife and independent children’s lawyer have run a trial to conclusion will also be considered in the context of any new application.

Any other fact or circumstance the Court thinks relevant[153]

[153] Section 60CC(3)(m)

Each parent is enjoined from removing the child from Australia without the consent of the other party. The wife seeks that the husband be enjoined from removing the child from Australia.
The husband has been pressing for some years to be able to take the child to meet his family in South Africa for, I understand, neither of his parents have come to Australia to visit. The parenting orders which I will make will not entitle the husband to remove the child from Australia.
It is not suggested that the wife seeks to travel out of Australia with the child. She gave evidence about being able to travel to Queensland to see her parents only once a year (for which they pay). I infer from that evidence that overseas travel is not an option for the wife or the child in the foreseeable future.
The wife and the independent children’s lawyer each seek a continuation of the injunction so that the child will remain on the watch list maintained by Australia Federal Police. The husband did not seek to participate in the proceedings to make any contrary submission. It occurs to me that, upon appropriate application being made, the child may well be entitled to a South African passport. I am not aware of any necessity for the child to have a South African passport. In all the circumstances of this case, including the husband’s apparent need to push boundaries and to disregard orders of the Court, it appears to me prudent that a copy of my orders be brought to the attention of the South African authority concerned with the issuance of passports for a child in the child’s position. I raised this with counsel for the wife and counsel for the independent children’s lawyer who each agreed. The husband did not seek to participate in the proceedings in opposition to that course. I will, therefore, make an order which will facilitate my request, that no passport issue for the child, to be passed on the South African authorities.
The wife seeks injunctions against the husband being within a certain distance of her home and/or the child’s school. Apart from following the wife to regional Victoria on 4 Match 2006 and snatching the child on 2 April 2005 there is no evidence of the husband loitering around the child or the wife.

Parental responsibility

I now give specific consideration to the application of parental responsibility for the child.
Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children[154]. In making parenting orders in relation to children, I am (subject to a few exceptions) required to adopt as a starting point that it is in the best interests of the children that the parents have equal shared parental responsibility[155]. Equal shared parental responsibility relates to decision making about major long term issues which are elsewhere defined[156] as issues about the care, welfare and development of the child of a long term nature and includes (but is not limited to) issues of that nature about:
●the child’s education (both current and future); and
●the child’s religious and cultural upbringing; and
●the child’s health; and
●the child’s name; and
●changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
[154] Section 61B
[155] Section 61DA(1)
[156] Section 4
The presumption does not provide a starting point about the amount of time or communication that a child is to have with parents.
Where 2 or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly[157]. The concept of joint responsibility carries with it the requirements to:-
consult the other parent in relation to the decision to be made about that issue[158]; and
make a genuine effort to come to a joint decision about that issue[159].
[157] Section 65DAC(2)
[158] Subsection 65DAC(3)(a)
[159]Subsection 65DAC(3)(b)
These provisions mean that consultation and some discussion is required about the major long-term decisions the responsibility for which is shared.
Relevantly, the presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:-
a)If the court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence or abuse of the child or another child who is a member of the parent’s family[160];
b)Where evidence is adduced upon the court is satisfied that the application of the presumption is inconsistent with the best interests of the child in that it would not be in the best interests of the children for the parents to have equal shared parental responsibility[161].
[160] Section 61DA(2)(a)
[161] Section 61DA(2)(c)
Family violence is defined[162] as conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety. There is also a note to the legislative provision which says that a person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
[162] Section 4
In the context of sub-s 61DA(2)(b), I am satisfied to the required standard that the husband has conducted himself vis a vis the wife in such a way to cause her to be apprehensive about her personal safety at the time and into the future. Such behaviour includes pushing past the wife and forcibly removing the child from her flat on 2 April 2005[163]. I am satisfied that a reasonable person, placed in the same circumstance as the wife, would be fearful for and apprehensive about her personal safety in the husband’s presence and, particularly, in discussion or consultation about matters concerning the child and his long term welfare.
[163] See paragraphs ‎241, ‎242, ‎243, ‎244 above.
In the context of sub-s 61DA(4) I am satisfied, on the evidence, that the hostile attitude of the husband to the wife’s role as the child’s mother, the husband’s disregard of the impact of his actions on the child and his aggressive and unacceptable behaviour to the wife and to others disqualifies the husband from having parental responsibility in relation to the child, at least until there is a demonstrable and significant change in his disposition.
Finally, I note that both parents seek that he/she have sole parental responsibility for the child. In this regard, each acknowledges that they would be unable to consult the other about long term issues in relation to the child. I am not going to require the parents to do something that each acknowledges is beyond his/her capacity. I should mention, however, that even if one parent had submitted that equal shared parental responsibility was workable and that consultation and discussion were viable, I am satisfied on the evidence that is not so. It would be quite contrary to the child’s best interests to leave decisions to be made about his long term welfare in the hands of parents who are, for different reasons, unable communicate effectively or constructively with one another.
I conclude that it is not in the best interests of the child that the husband and the wife have equal shared parental responsibility for him. The child’s best interests require that the wife have sole responsibility for major long term issues in relation to the child.

Consideration of equal time or substantial and significant time with both parents

Because I have determined that it is not in the best interests of the child that

I make an order providing that his parents have equal shared parental responsibility, I am not required to consider whether I should make an order providing that the child spend equal time or substantial and significant time with each parent[164].
[164] pursuant to subsection 65DAA
In any event, however, I have no hesitation in concluding that equal or substantial or significant time with each parent is not only “not reasonably practicable” but that it is wholly untenable given that the husband and the wife (for different reasons) have no capacity to communicate with each other to establish or implement such an arrangement or to resolve the difficulties which might arise in such an arrangement. I also conclude that any arrangement whereby the child were to spend equal or substantial or significant time with each parent, would impact adversely upon him.

Conclusion

It has not been possible to include all aspects on which I heard, or on which there was, evidence. Nonetheless I have taken the totality of the evidence into account. Just because I have not mentioned something, it does not follow that

I did not have regard it.
I have assessed the evidence in the context of the primary considerations as well as such of the additional considerations as I consider are relevant to the child. I find that, absent a very significant change in the husband’s behaviour and attitudes, I am unable to conclude that it would be in the child’s best interests to spend any time with the husband. In fact, I find that it would be contrary to the child’s best interests to live, communicate or spend time with the husband. Similarly, without a demonstrable change in the husband’s disposition, it would be contrary to the child’s best interests for the wife to be required to involve the husband in or to consult with the husband about major long term decisions for the child.
On the evidence I am comfortably satisfied that the husband has been prepared to portray a false set of circumstances in order to advance his own position which, it appears to me, is to be the centre of attention, and for much of the history relevant to this case, to be a victim of racial discrimination and violence. He takes no responsibility for precipitating the interventions by DHS (which took the decision not to interview him), the Victoria Police and Federal Agents who used reasonable force to remove of the child from the husband’s home for the recovery order, the expulsion of the family from the N Contact Centre on 18 November 2006 and the Federal Agents removal of the husband from court when he was disruptive and eventually having to place him outside the court building when he refused to leave the cells. A great deal of evidence has been adduced in relation to the husband’s allegations that agencies or people have acted improperly. It is appropriate that those people, who were witnesses, be provided with these reasons.
I have no evidence of the husband’s psychological or psychiatric functioning. However, doing the best I can, I am satisfied that his behaviour falls outside behaviour which is normal or acceptable in our society. It is behaviour with which I find neither the wife nor the child could cope into the future with the consequence that I am satisfied that there is no benefit for the child in having a meaningful relationship with the husband. In fact, exposure of the child to the husband is contrary to his best interests.
I recognise that it is a harsh result. I don’t come to it lightly. I do not criticise the wife. My assessment overall is that she has acted very reasonably and with forbearance, but it is not feasible for her to continue to do so. The abusive, disregarding and nasty conduct directed by the husband at her has been unremitting since March 2004. All she has tried to do is to be an effective parent to the child and yet, since mid-March 2004, the husband has been unrelenting in his attacks on her.
I remain of the view that a bad litigant does not necessarily make a bad father. However, it is the husband’s behaviour and attitude generally (not just in Court) which make him an unsatisfactory father at this time. I make no finding as to why the husband acts the way that he does. I merely find that his behaviour is intolerable vis a vis the wife and the child and that there is no indication that his disposition will change or that he will behave otherwise in the future.
Complex cases such as this case cannot be decided merely by reference to a checklist of considerations, no matter how well constructed those considerations may be. Therefore, I have carefully considered the result. Standing back and looking at the case as a whole, I am comfortable with my conclusion. The orders which I am about to make are the only result which will promote the child’s welfare and interest at the present time and into the foreseeable future.
It is unfortunate that the husband’s behaviour is so bad and his disregard for the mother (and the child’s relationship with her) so palpable that the only conclusion which is reasonably open to me is that any direct involvement by the husband in the child’s life must cease until such time as the Court can be satisfied, to the required standard, that the husband has changed is capable of behaving appropriately with and about the child.
It is unfortunate to have to deprive any child of input from a parent who seeks to be involved in his life. I recognise that the child will miss the husband. It is likely that the child has been pining for the husband over these last nine months. These are some of the short term implications of my decision.
The longer term implications of my decision include that the child will not have the benefit of any positive elements that the husband could bring to his life including, but not limited to, the richness of the husband’s South African culture which I accept that the husband is better placed than the wife to impart.
The child will always have a biological relationship with the husband. However, for as long as my parenting orders operate that relationship will not be a meaningful relationship within the meaning of s 60CC(2). In my assessment, a meaningful relationship between the child and the husband carries with it too many negatives and corrosive elements which will impact adversely on the child both directly and indirectly, through his primary caregiver, the wife. For the time being, the child’s impressions of the husband will be as he comprehended him in late 2006 and the wife promotes him to the child in the future. It will be up to the husband to demonstrate a sufficient change in his attitude to the mother and to the child and in his behaviour before a meaningful relationship between father and son could be considered to be consistent with best interest principles.
It is my hope that the husband will accept this determination as an impetus for change in his approach to the wife, to the child and to parenthood. That said, it is also possible that he will close the door on the child. Only time will tell. For now, the greatest imperative for me is to protect the child and the wife from the negatives which the husband will bring to the child’s life. These, I am satisfied, would put at peril the child’s short and long term emotional development, his relationship with the wife (who is by far the better parent) as well as constitute an intolerable burden for the child.

This is not a finely balanced case. There is no question in my mind that the effect of the husband’s destructive and undermining behaviour vis a vis the wife and, through her, the child, means that the net affect of permitting the husband to remain involved in the child’s life would be overwhelmingly negative. That may not be permanent but the responsibility for effecting the necessary change lies solely with the husband.
I am reminded that, when the husband wrote to the wife in January 2005 to explain why their relationship failed, he said[165]:-
[165] The husband’s letter is extracted in full at paragraph‎226 of these reasons
[…] [Mrs Adams] you now have the onerous burden of raising [the child] on your own due to some obvious reasons…
And you are – as I have said before – doing a grand and fine job with [the child].
This was not prescience on the part of the husband but, coincidentally, the husband’s early sentiments encapsulate, in simple and concise terms, the conclusion at which I arrive as a result after my extensive deliberations in this case.
These are my reasons for making the parenting order identified at the start of this judgment. I am satisfied that my order is consistent with the child’s best interests.

I certify that the preceding six hundred and ten (610) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate:

Date: 17 September 2007