ALLENBY & ALLENBY - [2012] FamCA 1083

FAMILY COURT OF AUSTRALIA

ALLENBY & ALLENBY

[2012] FamCA 1083

FAMILY LAW – CHILDREN – With whom a child lives – with whom a child spends time – allegations of violence – allegations of mental health issues – allegations of threats of filicide – order that child live with mother – order that mother have sole parental responsibility for the child – order that father spend no time with the child – order that father have limited written communication with the child

Family Law Act 1975 (Cth) s 60CC

Heath v Hemming (No 2) [2011] FamCA 749
Hartford and Ansilda [2009] FamCA 23
McCall & Clark (2009) FLC 93-405
Lindsey & Baker [2007] FamCA 1037
Grant v Downs (1976) 135 CLR 674
Re Bell: Ex parte Lees (1980) 146 CLR 141
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49

APPLICANT:

Mr Allenby

RESPONDENT:

Ms Allenby

INDEPENDENT CHILDREN’S LAWYER:

David Lewis

FILE NUMBER:

BRC

6847

2010

DATE DELIVERED:

21 December 2012

PLACE DELIVERED:

Hobart

PLACE HEARD:

G Town

JUDGMENT OF:

Benjamin J

HEARING DATE:

19, 20, 21 and 23 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Davies

SOLICITOR FOR THE APPLICANT:

Vomina Law

COUNSEL FOR THE RESPONDENT:

Mr Walker

SOLICITOR FOR THE RESPONDENT:

Walker Henderson

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr David Lewis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

David Lewis

Orders

All previous parenting and injunctive orders in relation to B born … May 2009 (“the child”) and Ms Allenby (“the mother”) are discharged and replaced with the following orders.
The child shall live with the mother.
The mother shall have sole parental responsibility in relation to the child.
The mother shall promptly keep Mr Allenby (“the father”) informed of any major issues in relation to the child’s education, health, welfare and development; including forwarding to the father annual school photographs of the child, copies of the child’s school reports and newsletters.
Subject to these orders, the father is entitled to have communication with the child’s schools and teachers to keep him appraised of the child’s education.
The father and members of his family are permitted to forward to the child letters, cards and presents (including for birthdays, Fathers Day, Christmas, and Easter). The mother is permitted to read and examine all such material and is entitled (on reasonable grounds) to withhold material from the child provided the mother informs the sender of the reasons in writing within a prompt period of time. The mother shall otherwise promptly give such material to the child. The mother shall forward to the father and/or members of his family any letters, cards or drawings the child wishes to forward to the father and/or members of his family.
The father shall not spend any time with or further communicate with the child except as agreed between the parties or otherwise as ordered by a Court exercising jurisdiction under the Family Law Act 1975 (Cth).
Neither party shall denigrate the other party or members of the other party’s family to the child or in the presence of the child, nor allow others to do so.
Each party shall keep the other advised at all times of their residential address, contact telephone numbers, emergency contact numbers and provide the other party with any new information within seven (7) days of any change in the details so provided.
The father is restrained from:-
a.approaching within 100 meters of the mother’s residence at C Street, Suburb D or her place of employment at E Street, Suburb D; and
b.approaching within 100 meters of the child’s school, pre school and/or day care centre.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 Fact Sheet attached hereto and these particulars are included in these orders.
All other outstanding applications in a case are dismissed (subject to any costs application made pursuant to the Family Law Rules 2004).
All subpoenaed documents are to be returned to the persons or institutions from which they emanated and all exhibits are to be returned to the person or persons who tendered the same.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: BRC 6847 of 2010

Mr Allenby

Applicant

And

Ms Allenby

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

These are proceedings concerning the parenting arrangements for B (‘the child’) aged three and a half at the date of the hearing.
The child’s parents, Ms Allenby (‘the mother) and Mr Allenby (‘the father’) first separated in November 2009 (when the child was aged about six months). At that time the father purchased a one way airline ticket for the mother and child to travel to Tasmania to live with the child’s maternal grandparents.[1] In February 2010 the parties’ recommenced living together (there was an issue as to whether this was a reconciliation – but in the context of this determination the circumstance this issue has little or no relevance).
[1] In fairness to the father he subsequently purchased a number of air tickets to encourage and later enable the mother and child to return to North-Eastern NSW.
In June 2010 the parties again separated and the mother and child returned to Tasmania and have lived with the maternal grandparents since that time. The child has not seen the father since about September 2010, a period in excess of two years at the date of hearing.
The parties lived in the Sydney area until about two months after the child’s birth, when they moved to F Town in North-Eastern New South Wales. At the time of both the 2009 and 2010 separations the parties lived at F Town. The father subsequently moved to Sydney after the Family Consultant tentatively suggested in her report dated 28 October 2010 that the city of Sydney may provide a place for both parents to live and enable a relationship to develop or re-develop between the child and the father.[2] The comment by the Family Consultant was by way of a suggestion but it was not followed by a recommendation. Unfortunately, the father took it as a recommendation and acted upon it.
[2] Paragraph 41 of the report which said “However, [the father] is reluctant to relocate to Tasmania; and [the mother] is reluctant to return to live in northern New South Wales. Therefore the prospects of a mutually satisfactory resolution may lie in the remaining option that [the father] and [the mother] both relocate to a destination such as Sydney where there are employment prospects and support systems for both parents. It seemed that this option may allow each parent to lead their own lives while [the child] will be able to spend time with both parents”.
The father seeks an order that the mother relocate to Sydney with the child and that the child spend time with him. Once the mother and child moved to Sydney the time arrangements sought by the father would initially be each alternate weekend and then developing to an equal time parenting arrangement. In addition the father seeks orders that once the mother was required to move to Sydney there be an injunction restraining the mother from changing the child’s principal place of residence from Sydney. The father also sought other orders in relation to special times. The father made it clear in his evidence and through his counsel’s submissions that if the mother and child were not ordered to move to Sydney then the father would, albeit reluctantly, not seek to spend any time with the child.
The mother seeks orders that she have sole parental responsibility for the child and that she live with the mother. She also seeks orders restraining the father from approaching her residence, place of employment or the child’s day care centre. She seeks an order that the father be arrested without warrant if there are reasonable grounds to suspect that he had breached the injunction. Finally she seeks an order that the father’s time with the child be reserved.
Outside the substantive conflict the parties agreed (and the Independent Children's Lawyer submitted) that the father ought to be able to send letters cards and presents to the child, and should be informed as to the child’s education and health. Having regard to that agreement and the evidence, I am satisfied that such an order ought to be made.
The Independent Children's Lawyer submitted that the mother should be permitted to remain in Tasmania, have sole parental responsibility for the child and that the child should live with her. He also submitted that an order should be made that the father spend some supervised time with the child in Tasmania at least four times per year at a contact centre, notwithstanding the father’s express view that he did not want such an order. The Independent Children's Lawyer submitted that the parties should be ordered to undertake a further intake session at the G Town Children’s Contact Service. He submitted that as a consequent of the impact on the father’s work no injunction should be put in place.
This was an unusual case in a number of areas, not in the least that the father sought to force the mother to relocate to a place other than where she had lived for the last two or so years and other than where the parties lived at the time the child was born and at the times they separated in 2009 and 2010.

THE ISSUES

The issues include:-
a)competing allegations of family violence, mental health and substance abuse including whether the mother father or both of them were violent to the other or to the child during the relationship;
b)whether the father is an unacceptable risk to the child;
c)whether the mother should be required to relocate to Sydney with the child;
d)the question of parental responsibility;
e)the time, if any, that the father should see the child;
f)the communication, if any, between the child and the father; and
g)the need for and nature of any injunctive relief.
In addition to the parenting dispute there was a dispute in respect of property and evidence was provided in that dispute. At the conclusion of the hearing the parties resolved their property dispute and consent orders were made in relation to superannuation, and having regard to the evidence that settlement was just and equitable. There was no order in respect of non superannuation property as the father had filed a debtor’s petition in bankruptcy in November 2011 and his non superannuation assets had vested in his trustee in Bankruptcy.

BACKGROUND

The father is aged 40 and lives in Sydney. The father is a qualified tradesman but says that due to injuries sustained in a motor cycle accident he has difficulties working in that job. He has had a number of jobs over the years and is presently doing temporary work through an employment agency. The week before the hearing the father earned about $700 although he says this work is tenuous. The father has from time to time worked at TAFE in New South Wales.
The mother is aged 38 and has since June 2010 lived in North-Western Tasmania. The mother is employed as a co-ordinator with the H Corp. She earns about $550 per week from this employment.
The parties commenced cohabitation in September 2006 and married in August 2008. The child was born in May 2009. The parties separated for about two to three months in November 2009 then recommenced living together, which may or may not have been a reconciliation. They separated again in June 2010. The mother moved to Tasmania on 17 June 2010.
The father says that he did not consent to the mother’s relocation to Tasmania with the child after the 2010 separation.
It is not in issue that throughout the time the parties were together the mother was the primary carer of the child and has continued in that role since separation. There is no real issue about the mother’s care of the child apart from her reluctance to facilitate the child’s time with the father. The father says he has other concerns about the mother’s care, but in the context of this dispute they are of little substance. I accept the assessment of the Family Consultant in her report dated 18 September 2012 when she said:-[3]
Since [the mother] presented as being a competent parent and [the child] presented as thriving in her care, there is no information to give weight to [the father’s] stated concern that [the child’s] needs are not being met in her mother’s care (apart from the possibility that [the child] is exposed passively to adults smoking cigarettes as shown by a photograph in his affidavit).
[3] At paragraph 21.
The father has not seen the child since September 2010 and the uncontested evidence is that the child has no memory of him.
After separation the mother contacted the New South Wales (‘NSW’) Police and provided a statement to them.[4] The NSW Police took AVO proceedings and in June 2010 an interim apprehended violence order was made at the I Town Magistrates Court. That order was made final in September 2010. The father filed an appeal to the NSW District Court and that appeal was allowed. The proceedings were remitted to the J Town Magistrate’s Court in for determination.
[4]Exhibit M3 at pages 4 – 7, Statement of a Witness for apprehended violence order dated 16 June 2010.
The mother asserts, and I accept, that she was not informed of the appeal nor was she given timely notice of the proposed rehearing at the J Town Court. The proceedings were listed for hearing in J Town NSW in early February 2011.[5] She says she was contacted by a NSW police officer on the day of the rehearing to attend court that day. As the mother was in Tasmania at that time she was unable to attend. As a consequence the application and interim order was dismissed. No criticism can be directed against the mother for that series of miscommunications.
[5]Exhibit M3 at pages 56 – 57, Tasmania Police FVMS Report.
On about 25 February 2011 Tasmania Police reported that the mother complained to them about her fears of the father and the outcome of the NSW proceedings. As a consequence new proceedings were commenced in Tasmania for police and family violence orders, apparently on 21 March 2011. The father subsequently gave a written undertaking to the Tasmanian Magistrates Court in April 2011 and in June 2011 on the basis of that undertaking the proceedings were dismissed. There was an issue as to whether the undertaking continued after that dismissal.[6]
[6]Exhibit M2 at page 6, of the father’s affidavit dated 26 June 2012.
In March 2011 the father had contacted the mother by telephone.
In October 2011 the father filed a debtor’s petition in bankruptcy and became a bankrupt.
These family law proceedings were commenced by the father in the Federal Magistrates Court in Brisbane in August 2010. The proceedings were subsequently transferred to the Federal Magistrates Court in G Town. An Independent Children's Lawyer was appointed and the proceedings were listed for hearing at the G Town Registry of the Federal Magistrates Court in late 2011.
In October 2011, the father’s allegedly threatened the life of the child in a telephone conversation with his then solicitor, Mr O. That solicitor terminated the retainer between himself and the father and notified the Independent Children's Lawyer of the alleged threat.
The hearing which was listed in the Federal Magistrates Court at about that time was adjourned and protective injunctions were put in place. The Federal Magistrate ordered a psychiatric assessment of the parties. That report was released in January 2012. 2011.
In addition, the mother again sought a family violence protection order in the Tasmanian State Magistrates Court. An interim order was made in about November 2011. Some time later this order was dismissed on the basis of the injunctive order made in the Federal Magistrates Court. The father applied to the State Magistrates Court in June/July 2012 for a release from his undertaking to that Court and he relied upon the injunctive order made in the federal Magistrate’s Court.
In the meantime the parenting proceedings before the Federal Magistrates Court were listed for hearing at G Town in April 2012. In March 2012 the father sent an email[7] to his then legal practitioners, the content of that email led those solicitors to write to the Independent Children's Lawyer and disclose the contents of the email and they terminated their retainer with the father. The father subsequently engaged another firm of solicitors to act for him.
[7] Letter to Independent Children's Lawyer 23 March 2012 is Exhibit ICL5, and the email dated21 March 2012 is Exhibit ICL6.
The April 2012 hearing was vacated by the Federal Magistrates Court and the proceedings were transferred to the Family Court for determination.
These proceedings were placed in the Magellan list once they were transferred to the Family Court. There was a delay between the transfer and the hearing as endeavours were put in place to facilitate supervised time between the child and the father. An updated Family Report was ordered and it was released in September 2012.[8]
[8] Exhibit ICL8.
Despite the April 2012 and May 2010 orders which were made to enable the child to see the father at a Children’s Contact Centre in Tasmania, the father did not see the child. He blames the mother, the Children’s Contact Service for the difficulty in being able to make arrangements to see the child there for those visits not proceeding. By late July 2012 the father declined to enter into arrangements to see the child.
These proceedings were heard before me in late November 2012. Each of the parties was represented by counsel.
Any statement of fact contained in these reasons should be treated as a finding of fact unless the contrary is clear form the context.

THE WITNESSES

Dr K

Dr K is a psychiatrist who prepared a report[9] in December 2011. That report related to both parents. Dr K was cross examined on his report and his qualifications were not challenged.
[9] Exhibit ICL1.
Dr K opined that the father did not meet the criteria for a diagnosis of a personality disorder but said that the father’s personality was characterised by a:-[10]
…marked but fragile sense of importance that compels him to deprecate or deprecate others and sustain oppositional attitudes whilst idealising past relationships and achievements. The characteristic superficially resembles narcissism (high self regard) but actually represents an egopathy based on a fragile self approval. The egopathy issues in controlling and threatening behaviour, a tenacious sense of right, and possessive jealousy.
[10] Ibid at page 14 A1.
He went on to say that:-[11]
In addition to natural and normal attachment to his Child there is a high probability of the Child being adopted as a ‘casus belli’ with characteristic tenacity.
[11] Ibid.
In saying this Dr K opined:-
He [the father] will tend to review any report or decision that does not advantage his claim as being biased or as a consequence of indirect practice. He will however rationally come to terms with a settled decision provided that it does not seriously disadvantage his claim for contact as a father. In the current level of conflict transfer of the Child should be through intermediatories at a contact centre, and not involve face-to-face meeting between the parents. A settled arrangement may make amicable contact possible. This depends in part whether he continues to have a settled partner.[12]
[12] Ibid at page 14 A1.

A number of concerns arise out of this analysis. The first is that the father does not appear to have a settled partner. He has a relationship with a person in L Town Queensland. He does not live with this person and has no plans to live with her.
The other concern is that the father, on his own case, eschews a relationship with the child if the mother does not move to Sydney.
As to the mother, Dr K opined:-[13]
The mother has a typical history of Panic Disorder as defined in DSM IV TR and ICD-10. The condition is intermittent in its expression, taking the form of brief episodes of severe anxiety. In the mother’s case it has been abated in frequency, she is being taught excelling strategies for managing it, and she has not developed a common complication of avoidant behaviour. In personality she is in the normal range but with a tendency to be over-compliant and readily dominated. There is a history that may reflect a few episodes of pathological intoxication but these do not reflect a continuing problem of alcohol or other abuse. There is no evidence of any incapacity to care for the child and meet her physical, psychological, emotional and educational needs.[14]
[13] Ibid at page 14 A2.
[14] Ibid
In terms of the mother, Dr K said:-[15]
There does not appear to be any significant risk of physical or emotional or temperamental harm to the child whilst in the care of the mother.
[15] Ibid at page 14 2B.
As to the child Dr K said that:-[16]
Extended transfer to the care of the father at this stage of the Child’s development would substantially increase the risk of emotional harm to the child, but time limited contact would not give rise to a substantial risk.
[16] Ibid at page 17 2I.
Dr K said that in his opinion the father did not require supervision and that:-[17]
The father would appear to be capable of incontinent statement but apart from acknowledged episodes of intoxication his history is of proceeding through legal and administrative channels rather than by direct aggression. He is however is likely to be tenacious in pursuing his claim to residence or contact with the Child, and any Orders regarding parental resident and contact will need to be made in firm and enforceable terms.[18]
[17] Ibid at page 17 2H.
[18]Ibid at page 17 and 2I.
Dr K gave evidence and was cross examined during an interim hearing before a Federal Magistrate in April 2012.[19] Dr K said that the father constituted a low risk of committing homicide. In that evidence Dr K said:-[20]
[19] Exhibit ICL2 – Transcript of proceedings dated 4 April 2012.
[20] Ibid at pages 6, 7, 8, 9 and 10 at lines 8-45.
MR LEWIS (Independent Children's Lawyer): Now, at the top of that document,[21] Dr K – and you have it in front of you, do you?---Yes, I do.
[21] ICL3 - Doctor K’s ‘Homicide risk’ document.
You’ve said:
NB: General considerations.
There’s four dot points there. Are they simply referring to general considerations that you would take into account on an overall basis when assessing that sort of risk?---Yes.
And can you explain to the court in relation to the first overall consideration:
Prediction of specific act is unrealistic.
Would it be fair to say that what that means is that you just don’t know and can’t tell the future, and we can’t – we don’t have a crystal ball?---That’s right, and the best authorities on the subject agree on this.
All right. And the second one:
There’s no reliable method of risk assessment.
So again, does that really mean that however careful you are you just don’t know what’s going to happen?---That’s right.
The third one:
Actuarial methods may be unfair in a specific case.
Can you explain what you mean by that?---Well, there have been a number of instruments, statistical instruments, devised to try and assess risk in various contexts. I believe that it’s unethical and probably unlawful to apply them in a particular case in contexts such as this, first of all because there is a very high likelihood that they may produce a result that would be – produce an injustice in a particular case, and in view of their general unreliability I think that’s – they should not be used. And my understanding of the law is that the law is concerned with what is the truth in a particular case, and not by – not what – not what may be a statistical reason.
All right. And can you also explain what you mean by:
?---Insofar as recognising the unreliability of methods of risk assessment, the methods that are used – clinical assessment combined with the use of actuarial methods – they generally are only – have any degree of predictive capacity when it’s been considered in the short term. It doesn’t say anything about the person’s lifetime risk, or 10-year risk, or whatever.
Thank you. And then you have listed a number of factors that you consider are important to look at – perhaps I will go back and just preface it with another question. So taking into account the general considerations, are you able to, for example, give the court an opinion as to whether there is, for example, a high or a low risk?---My opinion is that there is a low risk.
All right. And that is an opinion that that’s a low risk of anything – of harm to [the child] by her father, is that correct?---Yes.
And you’ve come to that conclusion by virtue of looking at some of the factors that you think are important - - -?---Yes.
- - - on the left-hand side? And on the right-side you’ve written in what you think - - -?---Yes. Based on my examination of [the father] - - -
All right?--- - - - at the time .....
Just so that his Honour understands what you have taken into account there, can you just go through – if his Honour wants you to; I think it might be important for him to know – what you have written on the right-hand side in relation to each of those matters?---Yes. The – the most important predictive factor, according to [emphasis added] most authorities, is that a history of violence is the issue, and in – in this case I think that’s not significant. There may have been some history of domestic violence, but not at a level that would be considered a history of violence for this purpose. “Biological factors – the existence of a mental illness such as paranoia” – that’s not present. “Persecutory ideas” – [the father] has a history of being what would be regarded as a serial whistle-blower in administrative situations in the past, and at times like that he very much felt under threat. Persecutory ideation may exist as part of a delusion, but it may also occur if a person is in fact being persecuted, which I think there is good evidence that he was at the time. During that time he told his then-wife that he thought the house was bugged and wanted to have conversations outside of the – the house. In some contexts that might be seen – sound delusional, but in the context of the time he may have had a reasonable thought that that could – was possible. So persecutory ideation I say to be situational, and not in the present situation. He does not hallucinate. Intoxication does not appear to have been an issue, and the matter of treatment is not applicable, because he doesn’t have an illness needing treatment. “Psychological factors” – I couldn’t find evidence that he was sadistic or callous. “Affective instability” – that is, instability of mood – I only had the opportunity of observing him for an hour ..... and – but the history was not of significant instability, however I’ve questioned that. He does not appear to be impulsive. He appears to be tenacious, and to make plans rather than act on impulse. He’s not psychopathic, in my opinion. I put a question mark against “planning,” because he does have a tendency to plan. Stress tolerance does not seem to be an issue. Problem-solving skills are good, as are indicated by his career, his work. His ability to take other courses is I believe proven by his actions in relation to the whistle-blowing matters in the past, and to some extent in the present case. I don’t believe that he has any specific sub-cultural attitude to violence. His personal attitude – in general terms, I would think there’s no question there. Used to be a gun owner, but if every gun owner was regarded as at risk, the world would be a different place.
Can I just stop you there, Dr K? You’ve got a question mark there. Is that because - - -?---Yes.
- - - you put that there because you just don’t know enough about ..... - - -?---I don’t know enough about, no.
All right. And is one of the reasons for that, for example, as – and I’m referring to page 11 of your report – the information you received from [Dr M], who is [the father]’s treating psychiatrist, where he confirms that the father refused to discuss – this is in the one, two, third paragraph:
The father refused to discuss previous episodes of alleged aggression requiring that specific allegations should be discussed in a forensic context.
?---Yes.
So is it the case that both yourself and [Dr M] haven’t been able to explore that with him?---I think there’s a limitation to that, yes.
Thank you. I’m sorry, I interrupted you?---And clearly, specific questions on the matter might receive a self-serving answer, which cannot be relied on.
Yes. I interrupted you. You were up to “Insight into illness”?---Yes. That’s not applicable, as there isn’t one. “Social factors” – not a significant experience of abuse in early life. Not a history of violence from an early age. Not applicable. “Social resources” – certainly there were family and friends. I wasn’t aware of the present status of a relationship with a partner. At the time of my examination of him there was one. I understand that that may or may not be the case. Therefore, the question mark. “Opportunity” – I – I flag the impending Easter as a – in the – in the presence of any risk, it is a time of enhanced risk because of the absence of normal arrangements, normal services, contacts, time of difference when things happen that might not happen at other times.
So would it be fair to say that given the general considerations that you just can’t predict the future, if you’re going to do anything, don’t do it at Easter?---That’s right
I flagged earlier, [Dr K], that I would ask you this question, and I ask it now: are you able to in terms of what the emails that you’ve seen, which were the exchanges between [the father]and his solicitors, you also received information about verbal exchanges between him and his solicitors?---Yes.
Can you tell the court what information you had received?---I was – the only information was about the nature of the communications. The question that was put to him in my presence was whether it was all on these emails, or whether there were actual conversations involved.
Thank you. Now, you’re aware that [the child], the child at the centre of this dispute, is – I think she’s nearly three?---Yes.
Three in May this year. You have in your report suggested that you are not, you say, at the last paragraph:
It is not my opinion that any contact with the father requires supervision.
Now, if his Honour finds that [the father] has not had any contact with [the child] since the first family report was made? That’s the report of ..... ?---Yes.
It was certainly more than 12 months ago?---Mm.
Would it be likely that [the child] in that intervening period of time would have retained a memory of her father?---It’d be a very, very limited memory.
All right. And when his Honour is considering what sort of interim contact he may or may not want to order so that there can be contact between the father and [the child], are you able to comment on the importance or non-importance of there being a gradual or slower build-up of the relationship and recognition between the child and the father?---I’m sure that’s most important.
So that at this stage, would you still recommend that there be no supervision?---It depends on what interpretation ..... puts on supervision. In some contact centres that’s interpreted as meaning that there must be someone else in the room at all times. I don’t think that level of supervision is – is warranted. I think it would be reasonable to leave father and child together for a certain amount of time in a place where there are other people around, but not necessarily with immediate line-of-sight supervision.
All right. So that for example in the short term, would – if I suggested to you that contact should take place at a contact centre where there was some supervision, but not with a person in the room at all times – perhaps at the beginning and at the end of the - - -?---Yes.
- - - contact session - - -?---Yes.
- - - do you think that would be appropriate?---That’d be appropriate.
And if I suggest to you that that in the circumstance – well, I will come back. One of the issues that – if I suggested to you that one of the issues that the father has to take into account and understand is the impact of the comments that he has made, whether they’ve been – I think you referred to them as “incontinent statements” – or not, that he might not mean, but would you agree that he should understand and empathise with the reaction of the mother to those statements?---Yes, I think that would be necessary.
And if I suggested to you that the mother’s reaction to those statements will be one of fear and despair at the thought of him having contact with [the child] - - -?---Yes.
- - - would you agree with that?---I could understand that.
Given [the father’s] – your conclusions in relation to [the father], where you say at page 14 in your opinion, at 1, paragraph A1 on that page:
In my opinion, the father has a personality characterised by a marked but fragile sense of importance that compels him to deprecate others and sustain oppositional attitudes, while idealising past relationships and achievements. The characteristic superficially resembles narcissism/high self regard, but actually represents and egopathy based on a fragile sense of self-approval. The egopathy issues in controlling and threatening behaviour, a tenacious sense of right and possessive jealousy. The characteristics described are salient and influential in the father’s life, but they do not meet the criteria for a diagnosis of personality disorder.
?---Yes.
Given your opinion and your observations, do you think the father is able to empathise with and understand the mother’s reaction?---I think he’s capable of understanding it in intellectual terms and meditating on it. Whether he can fully empathise with it, it’s not clear.
Do you consider that in view of the fact that the mother has the primary care of [the child], that the court should take into consideration in terms of crafting orders, orders that give the mother some comfort as well as the father some contact?---I’m sure that would be necessary.
Dr K’s prepared a schedule of homicidal risk which was tendered in the proceedings before the Federal Magistrate and was in evidence before me. In addition I have the letters from the father’s previous solicitors, to which I refer to elsewhere in these reasons.
These are allegations about threats made by the father. Dr K opines that the risk that they would be carried out (if in fact they are threats) is low.
I accept his evidence in that regard, however, I am not so sanguine about the threats, of this I will discuss later.
Dr K opined that the father was likely to seek a solution. From the evidence of the father it seems more likely that the father seeks problems rather than solutions.
The evidence of Dr K, which evidence I accept, is that the mother would be fearful as a consequence of these threats and given her emotional state it would have significant emotional impact on her.

Family Consultant

A family report was prepared by a family consultant of the Federal Magistrates Court, Ms N (‘the family consultant’), in October 2010. A second report was prepared by her in September 2012. The father attended in person at the preparation of the first report. He did not attend in person in relation to the second report, although he participated by telephone.
The two reports were tendered in evidence.[22]
[22] Family Report dated 28 October 2010 Exhibit ICL7 and Family Report dated 18 September 2012 Exhibit ICL8.
The Family Consultant was not challenged on her qualifications or her methodology. In her first report she recommended[23]:-
[23] At page 14.
1.      the Court consider the need for an independent children's lawyer be appointed;
2.      [the father] and [mother] share parental responsibility equally;
3.      the father and mother are required explicitly to share information about [the child’s] progress and welfare e.g. by e-mail;
4.      [the child] live with her mother;
5.      [the child] live at a location which best supports her opportunity to maintain relationships with both parents;
6.      [the child] spend time with the father as the Court considers appropriate following consideration of the allegations made between the parents;
7.      the Court consider the assistance likely to be provided to the Court by an assessment of the mental health of both parents from a suitably qualified independent forensic psychiatrist or clinical psychologist;
8.      the Court consider the merits of subpoena of police records in relation to the behaviour of both parents;
9.      the Court consider the assistance of a report about [Mr Allenby's] mental health status from his treating practitioner [Dr M];
10.    most importantly, the mother and father reduce their parental conflict and improve their parental communication further benefit [sic] of their daughter by:-
·   attending a parenting orders program, or
·   attending family counselling and/ or mediation in order to develop a businesslike co-parenting relationship as well as a comprehensive parenting approach, or
·   attending parenting courses which address children’s developmental needs in the post-separation context especially regarding the effects of family conflict, or
·   reading books or information on Internet websites.

The father took this tentative suggestion seriously and moved from North-Eastern New South Wales and returned to live in Sydney, with an expectation that the mother and child would soon be obliged to follow.
In her second report the Family Consultant recommended:-
1.      the court make an order about parental responsibility with regard to practicality and the capacity of the parents to co-parent.
2.      [the child] live with the mother, regardless of the geographical location.
3.      [the child] spend time and communicate with her father and her extended paternal family as the Court considers to be in her best interests, and if some visits are to occur then the possibility of some such visits to occur in New South Wales be considered.
4.      provision be made for the father to be able to send [the child] gifts and cards and current photos of himself and significant family members including her paternal grandmother.
5.      the Court consider, as the most minimal outcome, provision for [the child] to have the opportunity in future of making contact her father, to the extent that is practical and protective.
The present evidence of the Family Consultant is that the child should continue to live primarily with the mother, regardless of the geographic location.
In her second report[24] the Family Consultant noted that the father said he would not ‘pursue time if the mother did not move to Sydney’. The report says:-
[The father] seemed to place significant value upon the option raised in the previous family report that [the mother] return to live in Sydney with [the child]. Such an outcome may be the kind of acceptable remedy that he seeks from the court. [The father] said that if an acceptable remedy is not provided and without further postponement of a trial, he will cease to pursue a relationship with [the child]. On the other hand, elsewhere, [the father] seemed to raise a dilemma. He explained that [the mother] has a heart condition and her vulnerability to cardiac malfunction may be enhanced by her anxiety and also that her parents’ aging is a reality. These combined factors, he said, raise the issue of who will care for [the child] in future in the event that [the mother] and her parents are unavailable and if he withdraws from [the child’s] life at this stage.
[24]At paragraph 10.

At paragraph 19 of her second report, the Family Consultant observed:-
In the absence of adequate direct contact with him, [the child] could grow up to unreasonably fear or to idealise her father. Either alternative will not be beneficial or easy for her. [The child’s] paternal family are a part of her identity and will constitute an aspect of how she feels about herself as a person. The absence of these relationships may leave her with a sense of loss. Developmentally it will be more likely that these relationships will be more deeply rooted and enriched if [the child] experiences her father and significant others such as her paternal grandmother at this younger stage, rather than when she is older, although arguably it may never be too late to explore relationships with significant others.
In the alternative the Family Consultant said at paragraph 20 of her second report :-
On the other hand, [the child] is a developmentally vulnerable child highly dependent upon the care and protection of others. If [the child] is to spend time away from her mother, who is her primary caregiver, she will need to feel emotionally secure with significant others including her father who has regrettably become unfamiliar to her. She would need the appropriate opportunity to become emotionally secure with [the father] before being able to settle for extended periods in his sole care. Usually and most desirably this process would be facilitated by the primary caregiver in circumstances of sufficient goodwill or facilitated by another familiar and secure person, typically a close family member. In this situation however those options are not feasible. Accordingly the most appropriate circumstances for [the child] to be re-introduced to her father would be in a neutral and secure children's contact service, which typically provides a child-friendly environment. Although [the mother] strongly is of the view that [Mr Allenby’s] mother should not participate in such sessions to a great extent, her role possibly may aid [the father] and [the child] and may do no significant harm. However, since this most obvious re-introductory step has stalled, the best process to advance [the child’s] relationship with her father is elusive [emphasis added].
The Family Consultant said that the question of ‘risk’ was a matter for Dr K (and presumably the Court).
In addition the Family Consultant said the mother exhibited a clear fear of the father. That evidence was significant as it seems the level of fear in the mother (the primary carer) has increased since separation. The Family Consultant said:-[25]
[The mother] said that her earlier strong and abiding fear of [the father] had been increased greatly by learning through the court proceedings of the threats he allegedly made to harm [the child] and of his criminal history prior to their relationship; which differed from his accounts of the relevant incidents to her that she had believed. She noted his capacity to take action over a long period of time such as knowing him to “fight the government for six years”; and she explained that he used to drive by the home of a person he was aggrieved about and talked of fire-bombing the person’s house. She claimed that he had taped her conversations with him and she found evidence of him rehearsing a story line prior to continuing a further conversation with her after an argument. [The mother] thus expressed the view that [the father] has shown a pattern of behaviour over time that indicates that he has the potential to harm [the child] as revenge upon her ([the mother]) for crossing him.
[25] At paragraph 14 of the second report dated 18 September 2012.
I accept that the mother is fearful of the father and that such fear has increased since separation.
The Family Consultant was cross-examined in relation to the assistance of Skype. She said this could not work alone but that Skype could be an aid, however, the child would need somebody to assist her. In terms of time, it should be not more than ten minutes and frequency not more than once per week. The first meeting should be a face to face meeting at a Children’s Contact Centre. Her preferred approach would be weekly at a contact Centre, if not fortnightly, however, frequency would depend on the financial circumstances of the parties.
The Family Consultant said that there should be no reason why the father could not send letters, cards and parcels to the child and obtain information from schools.
The Family Consultant also observed that the father’s focus may be more on the litigation than on the child. She was concerned that the father is impeded in his desire to see the child by his approach to court proceedings. Unfortunately the father seems to be dismissive of the mother’s concerns and did not seem to express any insight into the impact of the threats to the child on the mother.
Her evidence was, and I accept, that it is unlikely that these parents could co-parent. The parties are unable to agree on any course of action.

The father

The father relied upon his affidavit of 19 March 2012 and 6 August 2012. In addition he relied upon his financial statement filed 6 August 2012.
The father was uncontained in his evidence and often answered questions with lengthy explanations about his circumstances. In many ways that approach reflected the assessment of his personality by Dr K.
The father endeavoured to blame the mother for him not seeing the child between April 2012 and the date of hearing. Whilst the mother did not act as proactively as she could have done in the circumstances, there is clear evidence that the mother agreed to dates. The father rejected those dates and sought other dates. He was sent a letter on 1 June 2012 suggesting dates in late June. The father said neither the fax nor the letter arrived and he only had two days notice, of that evidence I am not convinced. There is evidence that he had a telephone call on 13 June. He prevaricated or obfuscated in terms of that evidence. The father agreed to see the child on 13 July 2012 and was informed that the mother agreed on that date. The father then chose not to see the child on that date and his evidence in that regard was troubling.
It was open for the father to see the child this year but he chose not to do so. One of his explanations was that his mother (the paternal grandmother) was not allowed to attend the supervised time with the child. He said he wanted his mother present as a witness, and there was conflict or miscommunication about this request. However, there was no reason why he could not have brought his mother to the centre if he wanted a witness, and she need not have attended and seen the child on that or those occasions. The child had not seen the paternal grandmother for over two years. These were problems which could have been easily surmounted by the father and he could have seen the child on a number of occasions. He chose not to do so. The father was looking to find problems not solutions.
The father’s evidence was that in August 2012 he decided not to come to Tasmania to see the child.
The father said he is maintaining Christmas cards, birthday cards etcetera but has not given them to the child and his explanation for why he has not done this related back to an incident in 2010. He has made no serious endeavours since that time to see the child other than continuation of the litigation.
The father has a history of changing jobs although he has qualifications to work and earn a reasonable income (he earned $700 per week in the week preceding the hearing).
The father described the separation as one of the mother ‘kidnapping’ the child. He had little insight into the nature of the relationship between the child and the mother at this time.
The father was cross-examined by the Independent Children's Lawyer in relation to arrangements for him to see the child at a contact centre between Easter and May 2011. Arrangements had been made at the Contact Centre and the father cancelled those arrangements blaming the mother and the violence proceedings. There was no substantive reason why he should not see her, apart from his predilection to look for a problem rather than to find a solution. I am satisfied this time the father had an opportunity to see the child but chose not to do so.
The father gave evidence as to the separation in November 2009 and June 2010. His evidence in relation to these events was not impressive. He used it as a platform to criticise the mother. Often his answers were non-responsive and he endeavoured to be his own advocate.
The father understated his behaviour at the times of the separations in 2009 and 2010. He conceded that he forcibly took the mother’s mobile telephone from her. He broke into a room where she was sheltering and he bruised her arm. He minimised his involvement. The father’s evidence about the conversation with Mr O in October 2011 had a sense of reconstruction and was not impressive. Similarly his evidence about the meaning of his email to his then solicitors in early 2012 was not convincing and seemed revisionist in its nature. The father was argumentative and at times dismissive of counsel when being cross-examined.
In terms of what orders he sought in his case outline the father said that if the child remained in Tasmania he would not see the child. In cross-examination his approach changed and he said he would see the child but the mother would need to bring the child to Sydney. He clearly had no serious reflections on how that could be funded and in re-examination he made it clear to his counsel that he would not be seeing the child if the child remained living in Tasmania.
Counsel for the mother submitted that the evidence of the father was characterised by being argumentative, aggressive and evasive. It had elements of prevarication. Further that the father’s style is forceful. He submitted that the father turned back complaints against him by alleging similar conduct by others, such as the paternal grandfather’s alleged lack of care when holding the child. I observed similar patterns in the father’s demeanour when he asserted the mother was a risk to the child because of relatively innocuous remarks she made prior to and after the birth of the child.
When comparing the evidence of the father with that of Mr O (the father’s first solicitor) the explanation provided by the father is risible. The conversations are substantially different and in an objective sense Mr O did not have partisan support for the mother, quite the contrary, he was the father’s legal representative but such was his concern for the wellbeing of the child he disclosed that conversation which, save for the threat, would not have been otherwise available for him to disclose. The evidence of the father was fabricated to avoid the consequences of the October 2012 threat. In the particular timelines, that is on 19 March 2012 the father swore an affidavit saying “at no stage did I threaten to harm the [child]. I never would. She is my whole world’.[26] The father’s assertion that an email, sent on the day that the affidavit was filed supporting father’s who commit filicide, was innocuous and is fanciful.
[26]At paragraph 102 of the father’s affidavit sworn 19 March 2012 and filed 23 March 2012.
Overall I was not impressed with his evidence and I do not regard it as reliable.

Mr O

Mr O was a solicitor who was employed by P Lawyers in 2011. He acted for the father in these proceedings until October 2011. He gave evidence that he had a conversation with the father on 6 October 2011 at which time the father said to him:-
If the Magistrate finds that my daughter is to stay in Tasmania then the mother will only have her for a month and then she will have some problem with her heart, and when that happens and she wants me to take [the child] at the end of that month, I will kill [the child].
This evidence was consistent with what he had said in the letter of 11 October 2011.[27]
[27] Exhibit ICL4.
In cross-examination Mr O confirmed that it was a lengthy telephone conversation where the father was concerned about the issue of subpoenas. Mr O could not see the father’s facial expressions but he formed a view that the comments were serious.
Mr O was challenged as to his recollection of what was said and the ‘version’ asserted by the father was put to him. Mr O said that his recollection was accurate and that the words were said at the end of the conversation.
Mr O immediately reported the conversation to the directors of the legal firm he was employed with and made a note of the words. Mr O was frank and clear in his evidence.
The disclosure had an impact upon him to the extent that instructions were terminated and a report of the conversation was provided to the Independent Children's Lawyer. It is indicative of the seriousness of the threat which he perceived.
When compared to the evidence of the father in his affidavit,[28] the words are unlikely to have been confused and the frightening nature of the words quoted by Mr O could hardly be confused with the plaintiff words asserted by the father as a threat, not by him, but by the mother.
[28] At paragraph 102 of the father’s affidavit sworn the 19 March and filed 21 March 2012.
I accept Mr O’s evidence as being accurate and I prefer his evidence to that of the father.

The mother

The mother gave evidence in accordance with her affidavit filed 3 October 2011 (sworn 12 October 2011), 15 June 2012 (filed 19 June 2012) and 12 October 2012 (filed 15 October 2012). The annexures to the mother’s affidavit of October 2011 are Exhibit M3. The annexures to the mother’s affidavit filed 15 October 2012 are Exhibit M2. The mother also relied upon her financial statement filed June 2012. All of that material was read into evidence.
The mother was generally an impressive witness. She was thoughtful, considerate and made concessions against her interests from time to time. Her counsel submitted that she was direct, open, honest and unshaken. I accept that submission.
The mother gave evidence as to the events at separations in 2009 and 2010. She was frank in giving that evidence. The mother concedes she has from time to time suffered from bouts of anxiety. As to her heart she says she has an ectopic heart complaint, which is an additional beat in the heart, but says it has no significant impact on her health nor is it likely to threaten her general well being.
The mother acknowledges that there was no real reason why the paternal grandmother could not have travelled with the father to visit the child, except that it was not included in the orders. She later said that if an order was made the paternal grandmother could attend the visits, as long as she knew. That was a sensible and reasonable concession.
The disclosures of the alleged threats to the child had caused the mother to be in fear of the father.
The mother was cross-examined in relation to her work with the Department of Community Services (DOCS) and the extent of that work, as to whether she used that experience to fabricate and/or enhance her evidence. There is no cogent indication that the mother fabricated or enhanced her evidence in that regard.
The mother’s evidence in relation to equal shared parental responsibility was that she said she would have difficulty liaising with the father except through a third party. Having regard to the history I am satisfied that she would have difficulty in any way communicating with the father.
I accept the evidence of the mother was generally factually correct from her own subjective point of view. I am satisfied that she was subjected to verbal abuse and threats during the relationship, that her evidence of violence and threats at separation were accurate, including the injuries to her arm in June 2010, caused by the father.
If there is an issue of fact between the parties I prefer the evidence of the mother to that of the father, unless the evidence of the father is objectively supported by other evidence.

Mr Q

Mr Q is the child’s maternal grandfather. He gave evidence in accordance with his affidavit of 13 October 2011.
He was subjected to challenge in cross-examined in relation the veracity of his evidence but was not significantly shaken.
He clearly supports his daughter, but he answered the questions directly and frankly. From his subjective point of view, I regard his evidence as generally reliable.

Mr Q

Mrs Q is the maternal grandmother of the child. She gave evidence in accordance with her affidavit of 12 October 2011. She confirmed matters asserted by her husband, the maternal grandfather, and her own observations of the father’s behaviour.
The maternal grandmother said that she and her husband had lived in Suburb R New South Wales from 1977 to 2004. They have lived in Tasmania since 2004 (a period of about 8 years). Much of their family now lives in Tasmania although they have some relatives in the Suburb R area.
The maternal grandmother says, and I accept, that she cannot materially assist the mother in moving to Suburb R as her resources are limited.
Unsurprisingly her evidence was somewhat partisan. Her recollection of the last telephone conversation between the father and the mother contained a degree of reconstruction. However, her evidence was frank and to the point, although not perfect, memories never are. I generally accept her evidence.

Mr S

Mr S is the manager of the T Contact Service and the G Town Children’s Contact Service in Tasmania. He gave oral evidence in relation to whether the service would be available to these parties in the light of the evidence. His affidavit sworn the 23 October 2012, annexed the copies of the files in respect of these parties.
The evidence of the comments made by the father through his previous solicitors was given to Mr S and he said that there would need to be a further face to face intake assessment or a review of the assessment process and that a decision would be made at that time.
The approach of the Children’s Contact Centre is to endeavour to facilitate contact between a child and parent, but in this case a new face to face assessment would need to be undertaken. Understandably, he gave no clear answer as to whether the service would assist in facilitation of time between the child and the father.
In terms of services available through Relationships Australia to assist the mother in coping with her fears arising from the email and solicitor disclosures, about the father’s threats the only suggestion Mr S could make was for the mother to attend the post parenting orders program which did not seem to address that issue.
There was no evidence in relation to the availability of the Children’s Contact Services in Sydney. For this purpose I have treated those services as being available as this was the case for the mother and, to a limited extent to the father, in the case of the father, at least initially that time should be supervised. He wishes to quickly move to each alternate weekend and then equal time.

RELEVANT LEGAL PRINCIPLES TO BE APPLIED

Part V11 if the Family Law Act 1975 (Cth) (‘the Act’) sets out the pathway in determining parenting arrangements for children.
Section 60B of the Act sets out the objects and underlying principles to make sure that the children’s best interests are met. Section 60CA requires the Court to regard the best interest of the child to be the paramount consideration.
In determining the best interests of the child the primary and additional considerations are set out in s 60CC of the Act. The considerations must be read in the context of the objects and principles contained in s 60B and in particular the need to ensure children have the benefit of both of their parents having meaningful involvement in their lives and at the same time to protect children from abuse, neglect or family violence.
In Heath v Hemming (No 2) [2011] FamCA 749 Kent J set out the legislative approach to parenting orders under Part 7 of the Act, I have endeavoured to address this decision in accordance with that direction. In additions Kent J considered a pathway in determining parenting orders under Part V11 of the Family Law Act 1975 (Cth) (‘the Act’), including an outline of the source of the Court’s powers pursuant to s 87 when he said:-
87.Upon my review of the authorities it seems to me that the following is a logical and practical approach by the Court, and one which meets the statutory imperatives in a parenting case, including such cases involving a proposed relocation:
(a)Identify the respective proposals of each of the parties and any proposals of the Court substantially different to those of either party that were identified to the parties in the course of the proceedings as being proposals the Court might consider and about which the parties were given an opportunity to be heard. (AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238)
(b)Informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) (and where relevant s 60B(3)) undertake consideration of and make findings about each of the “best interests” considerations set out in s 60CC having regard to the respective proposals. It may be preferable to look at the additional considerations in s 60CC(3) (incorporating subsections (4), (4A) and (6) (where relevant)) before consideration of and findings about the primary considerations in s 60CC(2). (Collu & Rinaldo (supra))
(c)Consideration of and findings about the s 60CC considerations will result in findings one way or the other about “abuse” and “family violence” within the meaning of those terms as they are defined in s 4 of the Act (s 60CC(3)(g),(k) and s 60CC(2)(b)).
(d)In determining best interests the obligation upon the Court is to consider, weigh and assess the evidence adduced on behalf of the parties touching upon each of the relevant matters. After consideration of all those matters the Court should indicate to which of those matters greater significance is attached and how all of those matters balance out. (Collu & Rinaldo (supra) at [355] cited with approval in Sigley & Evor (2011) 44 Fam LR 439 at [142]).
(e)Next, determine in accordance with s 61DA whether or not the presumption of equal shared parental responsibility applies having regard to any findings as to “abuse” or “family violence” (s 61DA(2)) and the findings on “best interests” considerations (s 61DA(4)).
(f)If, as a result, the s 61DA presumption is found not to apply, or is rebutted, and it is determined that the parenting order will not provide for the parents to have equal shared parental responsibility, s 65DAA is not triggered and the Court may make parenting orders, consistent with the s 60CC findings, having regard to ss 60CA, 60CC and 60B.
(g)If the presumption applies, or if it is determined that the parenting order should make provision for the parents to have equal shared parental responsibility, then s 65DAA is triggered and the Court must consider:
(a) Whether an order for equal time is in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, equal time; and if not,
(b) Whether an order for substantial and significant time would be in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, substantial and significant time.
(h)The questions about “best interests” posed by s 65DAA will be answered by reference to the s 60CC findings undertaken in steps (b),(c) and (d) above.
(i)To answer the question of “reasonably practicable” regard must be had to the factors identified in (a) to (e) of s 65DAA(5) some of which will have also been considered in addressing the s 60CC considerations (as but one example, parental capacity to implement arrangements and to communicate and resolve difficulties). As the High Court highlights in paragraph 15 of its judgment in MRR v GR (supra) s 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there will be equal time (and the same can be said of s 65DAA(2) and substantial and significant time) and s 65DAA(1)(b) (and s 65DAA(2)(d)) requires a practical assessment to be made of the feasibility of equal time or substantial and significant time respectively.

I have considered and adopt the procedure adopted by Kent J.
The provisions in the Act relating to children rest on the importance of a child having a meaningful relationship with his/her parents and the need to protect children from harm. These objects are contained in s 60B(1) of the Act, which provides:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
When determining parenting orders a court must put in place orders which will endeavour to be in the child’s best interests, as the paramount but not sole consideration. In undertaking this exercise the Court must consider the primary and additional considerations set out in s 60CC of the Act.
There is a rebuttable presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child. If there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence the presumption does not apply.
If there is an order for equal shared parental responsibility (by application of the presumption or otherwise), a court must consider whether equal time with each parent would be both in the child’s best interests and reasonably practicable. Further, if an order for no equal time is made, a court must consider whether an order should be made providing that a child spends substantial and significant time with each parent if that is in the child’s best interests and is reasonably practicable.
As to alleged sexual abuse, Brown J summarised the principles in such determinations in Hartford and Ansilda [2009] FamCA 23, where she said:-
19.      The core principles are those enunciated by the High Court in M and M (1988) 166 CLR 69. The High Court (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) made it clear that the ultimate and paramount issue to be decided in proceedings for what are now called parenting orders is whether the making of the orders sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation of sexual abuse by the parent who seeks residence or time with a child does not alter the paramount and ultimate issue which the court has to determine. The High Court found (at 76) that although findings on the disputed allegation of sexual abuse will have an important, and sometimes a decisive, impact on the resolution of that issue,
…it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318: McKee v McKee (1951) AC 352 at pp 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf J v Lieschke (1987) 162 CLR 447 at pp 450, 458, 462, 463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a context between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
20.      In a joint judgment in B and B (1993) FLC 92-357 the Full Court (Fogarty, Baker and Purvis JJ) discussed the relevant principles, having regard to the High Court’s decision in M and M and at 79,778 said:
The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access’. In other words, where the court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
21.      In Re W (Sex abuse: standard of proof) (2004) FLC 93-192 the Full Court (Kay, Holden and O’Ryan JJ) examined the principles applicable in cases involving difficult questions of sexual abuse where the only witnesses to the alleged abuse are the alleged perpetrator and the alleged victim, noting the particular difficulties where the victim is young and does not give any direct testimony that can be the subject of forensic testing.
22.      The Full Court considered the relevance of the decision in WK v SR (1997) FLC 92 -787. In that case the trial judge had found that the father had sexually molested both his step-daughter and his own daughter. The Full Court said, at 84,691:

26. However, the evidence of ZH was in fact the core evidence relied upon by his Honour in order to substantiate the allegations of abuse against the father. Given the gravity of the allegations raised by the evidence, and the Court's duty to apply a rigorous civil standard of proof pursuant to the test enunciated by the High Court in Briginshaw (supra) and restated in s 140 of the Evidence Act 1995 (Cth), her evidence needed to be very carefully evaluated.

[…]
46.          It is clear therefore, that a finding that abuse has occurred can only be reached by a strict application of the onus of proof as set out in Briginshaw. Section 140 of the Evidence Act 1995 (Cth) has adopted this test as follows:
'140 (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)    the nature of the cause of action or defence; and
(b)   the nature of the subject matter of the proceeding; and
(c)    the gravity of the matters alleged.

47. In children's matters under Part VII of the Family Law Act, where the issue is a child's contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s 140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
48. This is a matter which must be specifically borne in mind by a Court which is exercising jurisdiction under Part VII of the Family Law Act. When exercising its jurisdiction under this Part, the Court's paramount consideration must be the best interests of the child, in accordance with s 65E. The application of this overriding factor often allows the admission into evidence of material which would otherwise be excluded if a rigid application of the rules of civil evidence were followed. Furthermore, when deciding what orders are in the best interests of a child, a trial Judge may often be confronted with a multiplicity of issues and facts. In these circumstances, evidence which, for example, is relevant and probative in relation to the question of an unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incident of abuse has in fact occurred.

The Full Court found that the trial judge had not paid attention to these views, and that unless the rigorous approach set out in WK v SR is taken, in circumstances where the often inevitable result of a positive finding of abuse is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and the child the disastrous effects of a positive finding that is reached in error. The Full Court found that the termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort, noting (at 79,217-8):

The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to remain conscious of this imperfection at all times.

23. The Full Court then referred with approval to the dissenting judgment of Kay J. in K v B (1994) FLC 92-478 where his Honour said, at 80, 972:

In cases of alleged sexual abuse, there is a significant risk that the ultimate effect of orders to be made by the court, and of the proper operation of the legal system, will be overlooked in the court’s anxiety to ensure that the risks of sexual interference are minimised. Where the evidence of sexual abuse consists of ambiguous statements of a pre-kindergarten aged child coupled with perceived but possibly otherwise explicable behavioural changes, it is almost impossible for the party denying any impropriety to prove that party’s position.
In an article entitled 'Prediction, Prevention and Clinical Expertise in Child Custody Cases In Which Allegations of Child Sexual Abuse Have Been Made', appearing in Volume XXVI No 2 Summer 1992 Family Law Quarterly (Publication American Bar Association Section of Family Law), at p 170, it was observed:
'Unfortunately the magnetising force of the simple allegation of a heinous event such as child sexual abuse, which legitimately invokes consideration of the possibility of that event, draw the clinician — and perhaps even judges and jurors as well,... away from what ought always to be the starting point of her or his evaluation enquiries, which is that the event did not (or very highly probably did not) occur. Because the null hypothesis (and, correlatively the absence of an event) cannot be proved, in their testimonies concerning possibilities of alleged events, clinicians strongly resist exonerating the targets of their evaluation. Because it is always possible that a given individual — even one randomly drawn from the general or a specific population — has sexually molested a child, an inconvertible proof that the individual has not molested a child is impossible.' (emphasis in original)
The article concerns itself with research carried out at the University of Michigan. Case notes concerning the possible sexual abuse of a three year old child were provided to 8 senior clinical psychologists, 23 graduate students undergoing clinical training in psychology and 50 members of staff of child guidance clinics including social workers, clinical psychologists and psychiatrists all specialising in child development in areas of child mental health. They were asked individually and then in groups to evaluate the probabilities that sexual abuse had occurred and then to recommend what if any ongoing child/father contact should take place.
The range of opinion on whether there had been abuse was so wide that the authors concluded as follows:
The most striking feature of these studies’ findings is the extremely large range across experienced and non-experienced clinicians of estimates concerning the likelihood that M was sexually abused by her father. When given all of the relevant facts of the case, child experts and trainees varied greatly in their individual judgment... These findings lend strong support for the view that individual experts can provide courts little if any assurance that they are able to provide even crudely reasonable (i.e. objective) estimates of likelihood that child sexual abuse has occurred or will occur, when they are confronted with the same set of ambiguities faced by the courts in these cases.
24. In Re W, the Full Court concluded its analysis of the relevant legal principles by remarking, at 79,218:

The lessons to be learned have not changed. The risk that the Court will find heinous behaviour where none has occurred needs be borne in mind at all times. The harm and injustice that flows to both parent and child from an erroneous positive is almost too horrible to contemplate.
25.      As I have observed before, and with respect to the Full Court, one might as well say that the harm and injustice that flows to both parent and child from an erroneous negative finding is almost too horrible to contemplate, that harm including repeated sexual abuse of a child. Nevertheless, I am bound by the exposition of principle in the judgment.
26.      In W v W (Abuse allegations; unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) examined principles relevant to child sexual abuse cases with particular emphasis on what is meant by unacceptable risk, the potential cessation of a significant or meaningful parent/child relationship and the appropriateness or otherwise of supervised contact. As a starting point the Full Court referred to the significant detrimental harm to a child who is sexually abused, noting (at 79,906) the discussion by Fogarty J in N and S and the Separate Representative (1996) FLC 92-655 where His Honour said, at 82,709:
The sexual abuse of a young child by a parent or care giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long term, can be devastating.
27.      The Full Court also had regard to Fogarty J’s acknowledgement of the potential for false allegations. Referring to Thomas J’s judgment in S v S [1993] NZFLR 657, Fogarty J said (at 82,711):
Courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception or information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.
28.      After considering a number of decisions in which the concept of unacceptable risk was considered, the Full Court in W v W (Abuse allegations: unacceptable risk) concluded (at 79,910):
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognized the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty.

A court must assess and determine the relevant facts in issue and in the context of those facts and the non contentious relevant facts, the Court must then conclude whether abuse has or has not been established and/or whether an unacceptable risk of abuse exists into the future.

THE S 60CC CONSIDERATIONS

Section 60CC(3)(a); Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

The child is three and a half year old and is too young to express any views. .

Section 60CC(3)(b) The nature of the relationship of the child with:

(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);

The mother has at all times been the primary care of the child, even the father’s case is that relationship ought not be changed in the short to medium term, except to the extent of the orders he seeks.
I accept the evidence of the mother that she and the child have a close loving bond and a strong attachment. This is supported by the evaluation by the Family Consultant in her most recent report.[29]
[29] At paragraph 21.
The child has a close and long term ongoing relationship with her maternal grandparents.
Unfortunately the paternal grandmother cannot assist, as the child has no relationship with her and the tentative relationship that existed between the mother and paternal grandmother has ended. The paternal grandmother has not seen the child for over two years and in the course of the proceedings has been seen by the mother as being closely aligned to the father.

Section 60CC(3)(k) any family violence order that applies to the child or a member of the child's family, if:

(i) the order is a final order; or
(ii) the making of the order was contested by a person;

Elsewhere in these reasons I have set out the history of the family violence orders and the applications, which I have had regard to in particular after considering the underlying facts upon which the interim orders and applications were based.

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

These proceeding have been delayed and expanded as a consequence of the threats made by the father in October 2011 and March 2012.
Final orders are necessary to avoid further conflict particularly having regard to the assessment of the father by Dr K.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant

I have considered all of the relevant evidence in terms of this parenting application.

Section 60CC(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:

(a)has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and

(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and

(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.

The father has not taken opportunities to see the child when they were available to him, which has been discussed elsewhere in these reasons. This was done in his search for problems rather than solutions and I am satisfied he was endeavouring to show the mother as being intransient and difficult. The father created issues in respect of seeing the child. In 2011 he did not see the child because he said there was an AVO in place. There was no reason why he could not see the child. There was no evidence of reason as to why he could not see the child despite the AVO.
The mother was willing for the father to see the child and the Independent Children’s Lawyer supported this and arrangements had been made with the Children’s Contact Centre. The father chose a different course.

Section 60CC(2)(a) The benefit to the child of having a meaningful relationship with both of the child's parents;

The Full Court in McCall & Clark (2009) FLC 93-405 said in respect of a meaningful relationship, at paragraphs 119 and 122:-
We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
…
In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
The mother says that she would like the child to have a meaningful relationship with the father but her fears are such that she has fears for her own health and that of the child.
I accept that the mother would return to New South Wales if I ordered her to do so. She has shown some reluctance to comply with the orders that the child see the father but despite her reservations has engaged in the process.
The mother’s evidence was that when the father was to see the child she had photographs of him and began preparing the child for that meeting in a positive way.
There are significant benefits in the child having a relationship with the father, provided it is safe to do so. Those benefits were set out by the Family Consultant in her second report,[35] the details of which are referred to earlier in these reasons.

Section 60CC(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

[35] Exhibit ICL 8 dated 18 September 2012.

In Lindsey & Baker [2007] FamCA 1037 Carmody J said of unacceptable risk:-
78. The so-called unacceptable risk test has become the standard used by the Family Court to achieve a balance between the risk of detriment to a child from sexual abuse and other forms of harm and the possibility of benefit to the child of unrestricted contact. Under the High Court's formulation in M v M, where a court makes a finding of unacceptable risk it is a finding that continued contact might do more harm than good[36] or a conclusion that its perceived advantages are outweighed by the potential disadvantages. However, a finding of unacceptable risk in respect of unsupervised contact does not preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered. [37]
79. The relevant exercise is not a strictly legal one. It requires an assessment of the factors which might indicate the risk of any relevant harm to the child in the future.
80. Risks consist of chances and consequences. The more serious the consequences the higher the risk even if the odds of the happening of the relevant event are comparatively low. Conversely, it may be perfectly reasonable to take a risk on something in circumstances where, even though it is likely to occur, the consequences are comparatively insignificant and the potential benefits are worth it.
[36] [Footnote omitted].
[37] [Footnote omitted].
In this case the risks are very high.
I am satisfied that the father has on two occasions threatened the life of the child, either expressly or impliedly. The first threat led to the father’s then solicitor taking it so seriously that instructions were terminated and details of a conversation between the father and his solicitor were forwarded to the Independent Children's Lawyer. As a consequence a hearing was delayed, a psychiatric report ordered, injunctions were put in place and an application was made to a State Magistrates Court for a family violence order. In December 2011, Dr K had made comments in his report about the father’s controlling and threatening behaviour and his capacity for incontinent statement. This was in the circumstances of Dr K observing the mother’s history of a Panic Disorder with associated severe anxiety. The mother was said by Dr K to have a tendency to be over compliant and readily dominated. The mother provided a history to Dr K of family violence at the hands of the father.
Yet in the light of all of these consequences the father sent, what I regard as a threatening email[38] to his then solicitors. He prevaricated in his evidence as to what the email meant. Clearly it supported men who killed their children. He knew or ought to have know what impact such a threat would have had on his solicitors (it had caused a ruction with his previous solicitor) and the mother.
[38]Exhibit ICJ6.
What could the father possibly gain from such ‘incontinent’ language? At best it was to terrify the mother, which it did. At worst it was to send her, again, a clear message that he intended to harm the child.
The father conceded that he had firearms in his possession at the time that the interim protection order was made against him in June 2010. The firearms were removed by the police.
The history of the domestic violence proceedings are set out earlier and when the proceedings were the father arranged for his firearms to be collected and transferred into a friend’s name. I am satisfied that the father still has access to those guns and part of his evidence indicates that he has an interest in those guns. His answers to evidence in that regard were such that he initially obfuscated but when pressed in cross-examination conceded that the guns were in the hands of his friend.
Added to this are the procrastination, prevarication and obstruction in the father spending time with the child. He had the opportunity to see the child in 2011, and chose not to do so. Arrangements were made in mid 2012 and again the father found reasons not see the child (generally blaming other). His focus was on the dispute and/or the mother. This evidence was of behaviour which resonated with the evidence given by the mother of the father’s meeting with the child (and the mother) in September 2010, at which time the father focused on the mother and his desire to rekindle the relationship with her. I prefer the mother’s evidence in respect of that encounter.
The father’s relatively consistent position is that unless the mother moves with the child to Sydney all contact with the child will cease.
Further there is the father’s history of violence and abuse as set out in the mother’s affidavits. That evidence is consistent with the assessment of the father in his controlling and threatening behaviour with a tenacious sense of right and possessive jealously as observed by Dr K.
I accept the evidence of Dr K that the father is of low risk as to homicide, but this evidence is to be weighed and considered with the doctor’s cautions; that prediction of a specific act is unrealistic; there are no reliable methods of risk assessment; actuarial methods may be unfair in a specific case and confidence is highest in the short term.[39]
[39]Exhibit ICL3.
I am concerned in all of the circumstances that there is an unacceptable risk that the father could harm the child.
The detail of the father’s evidence is troubling.
The evidence of Mr O was inconsistent with that of the father. The father says[40] that the conversation was to the following effect:-
102. I recall a conversation with my previous solicitor on or about 2/10/2011 by telephone. This was shortly before the upcoming final hearing and I was most anxious that my instructions to issue relevant subpoenas had not been followed. The conversation became a little heated because I was frustrated by my solicitor’s lack of action in pursuing my case. In the course of discussion I said to [Mr O] words to the effect of;
“If you don’t want to issue the subpoenas in my case I’ll do it”
[Mr O] said; “You’re not going to get your kids cause (sic) you’re violent”
I said “[the mother] threaten (sic) to fucking kill [the child]. …Do you know how that made me feel? Have you had someone in your family die?”
[Mr O] said “yes”.
I said; “Well then you’d understand that at first you are devastated and then you get closure. This way I have no closure ever”
At no stage did I threaten to harm [the child]. I never would. She is my whole world.
[40]At paragraph 102 of the father’s affidavit filed 21 March 2012.
It is significant that this paragraph was contained in an affidavit was prepared in the office of his then solicitor, Ms W. The affidavit sworn by the father in the presence of Ms W on 19 March 2012. Another threat (and I am satisfied it was a threat) was made by the father in his email to Ms W just two days later, on 21 March 2012.
The explanation by the father was fabricated by him to avoid the consequences of the frightening words he used in his discussions with and as recalled by Mr O.
What is concerning is that the father having endeavoured to exculpate himself from his previously threat in that affidavit, and yet could not contain his anger, such that two days later he made another serious threat.
These are not single events, they are consistent. I take these threats, in these circumstances, seriously.
In the email sent by the father to his solicitor in March 2012 the father used strong language in relation to the mother moving to Tasmania with the child. He described the move as “theft of [the child]”. The father said:-[41]
I am thinking I should be an advocate for fathers who have committed filicide as the Family Court system clearly supports children being separated from their fathers by mothers who are liars and thieves (sic).
[41] Exhibit ICL5.
As a consequence of this email the father’s then solicitor, Ms W by letter dated 23 March 2012 ceased acting for the father and disclosed to the Independent Children’s Lawyer the email to her. [42]
[42] Exhibit ICL5
The father’s endeavours to explain the filicide email and the telephone conversations, was chilling. At the very least he has no insight into the impact that such words would have on his former wife, whom he knew suffered from anxiety and stress.
The father’s response in re-examination to the threat of filicide was, to say the least, glib.
The mother describes various incidents of violence and/or controlling behaviour:-
a)         The violence occasioned against the mother at the time of the November 2009 separation;[43]
b)         The violence at the time of the June 2010 separation;[44]
c)         The father’s verbal denigration of the mother to the child;[45]and
d)         The controlling, intimidating and/or violent behaviour as described by the mother.[46]
[43] Mother’s affidavit filed 13 October 2011, at paragraphs 9.2 to 9.17.
[44] Ibid, paragraphs 9.19 (including the statement to the police in June 2010).
[45] Ibid, paragraph 9.21.
[46] Ibid, paragraphs 9.23 to 9.29, 10.10 to 10.16, 10.30 to 10.32 (noting the paternal grandmother provided no evidence in respect of this claim and was available to do so) & 17.7 to 17.8.The mother’s affidavit filed 15 October 2012, paragraphs 17 - 27, 78 & 79.
The mother claims that she saw the father lying on a bed with the child in troubling circumstances. This was evidence given during the hearing. I asked counsel for the mother what submissions he would be making with respect to this evidence. He said he would be making no submissions and the Independent Children’s Lawyer said likewise. As a consequence, no cross-examination of the mother was undertaken in this area. I am satisfied that the mother and the Independent Children's Lawyer do not assert that this is evidence of which I need to have concerns, and I have adopted and accepted that approach.
Having considered, weighed and assessed the evidence I find that the father continues to constitute an unacceptable risk to the child both in the context of supervised and unsupervised face to face time and that the perceived advantages are outweighed by the potential disadvantages of the child spending time with the father.

PARENTAL RESPONSIBILITY

The mother and Independent Children's Lawyer each submitted that there should not be an order for equal shared parental responsibility. The findings of violence are such that the presumption pursuant to s 61DA does not apply.
The mother is afraid of the father and the parties are unable or unwilling to communicate. The mother has difficulty in being assertive and the father is a dominant or dominating character. The father has no insight into his level of aggression, manipulation or control.
The father looks to find conflict and/or problems and is not child focused. Counsel for the Independent Children’s Lawyer outlined the criteria set out by Federal Magistrate Ryan (as she then was) in H&H (2003) FMCAfam 41, for equal time which must also by its nature include some criteria for shared parental responsibility, such as:-
·The parties’ capacity to communicate on matters relevant to the child's welfare. In this case there is virtually no capacity to meaningfully communicate and little likelihood of that changing.
·The physical proximity of the two households. In this case the mother lives in Tasmania and the father in Sydney. Neither is willing to move residences.
·The prior history of caring for the child. The answer to this is that there is no such prior history at least for the last two years.
·Whether the parties agree or disagree on matters relevant to the child's day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern and where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise. In this case the parties have not agreed on parenting the child since June 2010 and perhaps as early as November 2009. There is little likelihood that they could reach a reasonable compromise on any meaningful aspect of parental responsibility.
·Whether or not the parties respect the other party as a parent. The father does not respect the mother and has little apparent regard for her. The mother is afraid of the father and dies not trust him
The father sees no fault in his role and the assessment of Dr K is correct. The father has an inflated sense of his own importance and excludes himself from any culpability in terms of the conflict that has arisen.
In addition his, at best analysis, intemperate language, which having regard to the mother’s evidence of his allegations of control and violence during the marriage, would make the operation of an equal shared parental responsibility regime unworkable and dysfunctional.
Shared parental responsibility is likely to fail in the circumstances of this case and having regard to the relevant factors it would not be in the child’s best interest.
In the light of those factors, the mother is the only likely candidate for parental responsibility and I will make that order.

RESIDENCE

I need to consider where the child should live. That is not the most difficult forensic exercise having regard to the circumstances of the child. The child has been in the primary care of the mother for all of her three and a half years. There is no criticism of the mother’s care of the child except in so far as it relates to the child’s relationship with the father and his family.
The father does not, at this time seek residence and the overwhelming evidence assessed against the relevant factors is that the mother should remain primary care of the child. Accordingly, I will make such order.

RELOCATION

The only two options available for me to consider is that the mother move with the child to Sydney or remain in Tasmania with the child. The father is not prepared to live in Tasmania.
In the s 60CC factors I have discussed the various aspects of the evidence in these proceedings. The father’s case is that the mother ought to move to Sydney with the child to enable a relationship between father and child to be re-established.
In support of the mother remaining in Tasmania, counsel for the mother submitted that in Tasmania :-
·The mother has stability (including accommodation for two and a half years and the child has lived almost three quarters of her life in that state).
·The mother has been stable employment for some time.
·The mother and her family have capacity to care for the child.
·The mother has the support of a large family in that area.
·The mother has well established community ties generally and particularly with the Aboriginal community and culture.
·The mother presents no risk to the child.

The mother wants to continue to reside with her family in Tasmania.
There are significant features which predicate against forcing the mother to relocate to Sydney with the child, not the least being the impact upon the mother, the risks to the child and the sheer lack of practical ability to do so. The Family Consultant supports the mother and child remaining in Tasmania.
The submission of the Independent Children’s Lawyer was that ‘the door ought to be left open’. The father’s position is that he does not seek time with the child if the mother does not relocate to Sydney.
The Independent Children’s Lawyer says that the risk to the child in not seeing the father is greater than the risk of harming or injuring the child, with respect to him I disagree despite his assertion that there is no evidence that the father has breached any undertakings or orders since 2010. The father did not comply with the orders to see the child in 2012, when it was open for him to do so.
The Independent Children’s Lawyer submits that orders should be made for four visits per year at the Children’s Contact Service upon the father giving one months notice to the mother. He says the parties should be directed to undertake further intake assessment at the Children’s Contact Service in G Town.
The father’s case was clearly that the child should return with the mother to Sydney and that there should be regular fortnightly or weekly supervised time leading to unsupervised equal time.
The father’s case continued to be that if the child remained in Tasmania then he would not see the child.
Having regard to the concerns I raised in terms of the child being at risk of abuse, I am not satisfied that the child should have any face to face time with the father. The child is at unacceptable risk of harm in the care of the father, even if that care is in a supervised environment.
The risk to the child where the father has, on two occasions, threatened to harm the child, is so great that notwithstanding that the risk may be small, it is, in all of the circumstances, unacceptable into the future.
I do not accept the submission of the father’s counsel that the remarks contained in the email to and the remarks made to Mr O were intemperate. As I have said earlier the threats in the conversation and the email are worrying.
In the circumstances I am satisfied, on balance that it is not in the child’s best interest to spend face to face time with the father and I will so order.

INJUCTIONS

The injunctions sought by the mother fall into three areas. The first is to prevent the father from contacting the mother.
Having regard to the consent between the parties to send letters, cards, presents etcetera and the orders I have made, that order could not operate effectively. There is evidence that the father telephoned the mother once and, at least on the evidence of the mother, the father was polite and not threatening. On another occasion the father sent the mother an empty envelope. I am not satisfied that there is sufficient evidence, at present, to base the orders sought by the mother.
The evidence of the father is that if an injunction was put in place he is unable to work at the TAFE. I have some concerns as to the veracity of that evidence. At the hearing no papers or documents were produced which could have objectively supported that assertion.
The order made by this Court is not under the Crimes Act New South Wales, it is a common order made in proceedings such as these which are, after all, private law.
The mother also seeks an injunction preventing the father from approaching her home, place of employment and the child’s school.
The threats made by the father have had a profound impact on the mother.
Dr K’s report dated 23 December 2011 was released to the parties in January 2012. The father would have read that report and would have read in it that the mother has a typical history of panic disorder taking the form of brief episodes of severe anxiety. His evidence was that she exhibited that anxiety to him.
In many ways the father twisted that evidence. The mother expressed concerns about giving birth to a baby (which is perhaps not unreasonable) and the father had twisted that into a threat by the mother against the life of the baby. The mother had expressed concerns about her ability to cope with a new born baby (again this is perhaps not an unreasonable expression of a first time mother), and yet the father treated this as a threat to the life of the child.
The father would also have read in the report that Dr K described the mother’s personality as ‘in the normal range but with a tendency to be over- compliant and readily dominated’.
Yet despite all of that information the father again raised the filicide in an email to his next solicitor.
In the context of a parenting procedure and a nervous mother this demonstrates is lack of insight at best and predatory and dominant behaviour at worst. In endeavouring to explain the email the father resorted to semantics. This Court can only regard the email and the statement made to Mr O and Ms W as threats.
The father’s approach in making the second threat to his then solicitors has to be seen in the context of the impact of the previous threat which has been disclosed.
Having regard to the threats made by the father referred to elsewhere in these reasons, I am satisfied that such an injunction ought to be put in place.
However, I am not satisfied in all of the circumstances, that there ought to be provision that the father be arrested without warrant pursuant to s 68B, which is the final injunction the mother seeks. As a consequence I do not intend to make that broader order.

ETHICS & LEGAL PROFESSION PRIVILEGE

The father’s then solicitor, Mr O, forwarded a letter to the Independent Children’s Lawyer on 11 October 2011.[47] The solicitors for the father withdrew at that time and disclosed the detail of the threat to the Independent Children’s Lawyer. The letter detailed the threat as being:-
If the Magistrate finds that my daughter is to stay in Tasmania then the mother will only have her for a month and then she will have some problem with her heart. And when that happens and she wants me to take [the child] at the end of that month, I will ‘kill’ [the child].
[47] Exhibit ICL4
As to the second threat, a letter from Ms W dated 23 March 2012 was tendered in evidence. Ms W took sensible steps, which is she sought guidance from a Law Society of NSW[48], and then disclosed the detail of the threat which may have shown that the child was at risk of harm. She relied upon rule 2.1.3 of the Revised Professional Conduct Rules 1995 (as amended) (NSW);
2.1.3 the practitioner discloses information in circumstances in which the law would probably compel its disclosure, despite a client's claim of legal professional privilege, and for the sole purpose of avoiding the probable commission or concealment of a felony.
[48] It is clear whether she sought advice from an officer of the NSW Law Society not a ruling from the President of the Law Society.
As I have said, at best the father has no insights into the impact of these threats upon the mother, at worst they are what they appear, threats to the existence of the child.
The objects and principles of the Act oblige parents to protect children from abuse, violence and/or neglect. However, there are no specific statutory provisions under the Act requiring legal practitioners in Family Law proceedings to do so[49]. There are however, the broader statutory and common law duties to the court as legal practitioners. It is trite but accurate to say the legal practitioners have an obligation to the court.
[49] Except if that happen to be Family Dispute Resolution Practitioner, an Arbitrator or and Independent Children's Lawyer, s67ZA.
Generally disclosures made by clients to their legal practitioners in the course of litigation are generally subject to the protection of legal professional privilege. Legal professional privilege protects the confidentiality of certain communications between a lawyer and a client and/or material prepared for a case, including communications in court which cannot be disclosed.[50] The rational of this head of privilege being, as stated by Stephen, Mason and Murphy JJ in Grant v Downs (1976) 135 CLR 674 at 685:-

…according to the traditional doctrine, that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by their legal advisors, the law being a complex and complicated discipline.
[50] Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 at 64 - 65.

The privilege belongs to the client, not to the practitioner. It is in essence an entitlement for a client to make disclosures generally about past behavior to which the legal practitioner ought not to disclose to others (including prosecution authorities) nor is the legal practitioner compellable to provide evidence of that privileged material. It is open at times, for a client to waive that privilege either expressly or impliedly.
It is equally clear that the legal professional privilege does not entitle legal practitioners to participate or shelter plans for future criminal offences, nor can solicitors participate in offences such as conspiracy to pervert the course of justice.
In Re Bell: Ex parte Lees (1980) 146 CLR 141 the High Court found that there are exceptions to the privilege rather than there being a balancing of the privilege against other interests. His Honour Justice Gibbs found an exemption to the privilege existed at common law and said:-[51]
…The privilege will not apply where the communication was part of a criminal or unlawful proceeding, or was made in furtherance of an illegal object, e.g., where the client sought legal assistance as a step in, or preparatory to, the commission of a crime or fraud, even though the solicitor was unaware of the purpose of the communication at the time it was made.
[51] At page 145.
His Honour went on to say:-[52]
7. I am unable to see any distinction, for present purposes, between the position of a child who has been made a ward of court and that of a child in relation to whom an order for custody has been made under the Family Law Act 1975 (Cth), as amended ("the Act"). In both kinds of case the court must regard the welfare of the child as the paramount consideration. The privilege is inapplicable, in the case of wardship, because the case goes beyond, "mere questions of civil right" and because the privilege, if given effect, might frustrate the efforts of the court to secure the benefit of the child and might have the result that the child remained in conditions detrimental to his or her welfare (cf. Ramsbotham v. Senior (1869) LR 8 Eq, at p 579 ). Exactly the same considerations apply where an order for custody has been made under the Act. This view appears to have been accepted in the United States, where it has been held that a solicitor is not entitled to withhold information as to the address of his client who has removed a child from her home in violation of a custody order: Dike v. Dike (1968) 448 P 2d 490 . In that case, in the course of giving reasons for holding that the information was not privileged, it was said (1968) 448 P2d, at p 498 : "The primary purpose of disclosure is to protect a minor child's welfare which is, at least potentially, being harmed by the client's continuing wrongful actions." (at p146)
[52] At page 146.
Consequently, if a legal practitioner, in the course of a Family Law proceeding becomes aware of a serious threat by his or her client to harm or injure the other party and/or to the child or children; then that practitioner has an obligation to the court to warn and disclose to the other party, the Independent Children's Lawyer and State Welfare Authorities of that or those threats.

CONCLUSION

In terms of other contact there is no reason why the father cannot send letters and cards to the child and Christmas, birthday and other presents at significant times. There is no reason why the father cannot know about the education and significant events affecting the child and have photographs of the child.
Similarly there is no reason why the child cannot have photographs of the father and his family.
In relation to Skype, there is evidence that the mother would facilitate Skype. However, the evidence of the Family Consultant is that Skype alone is not sufficient as it would only be used as an addendum to face to face contact. The child does not know the father; he is a stranger to the child. A relationship would need to be established between the father and the child before Skype would be able to work successfully.
In the current circumstances having regard to the age and maturity of the child, it does not seem to me that Skype communication, at this stage, could be managed by this young child, it would have a significant impact on the mother and it seems to be leading nowhere.
The child is well settled in her current environment. The evidence of the family consultant was that the child was thriving and flourishing.
I have identified the proposals of each of the father, mother and Independent Children's Lawyer. The court doers not have any proposals of the Court substantially different to those otherwise identified.
In respect of those various proposals and having regard to the objects and underlying principles expressed in s 60B of the Act, I have considered and made relevant findings in respect of the s60CC considerations set out in s 60CC, initially the additional factors and then the primary factors.
Having considered, weighed and assessed the evidence (particularly giving weight to the history of controlling behaviour of the father, the violence behaviour of him to the mother and the threats he has made to the child since separation and the effects of that behaviour on the mother, I have found that the child is at risk of violence in the care of the father and that the father presents as an unacceptable risk to the child. This is despite the other finding that, if safe, the child would benefit from a relationship with the father.
Having made the findings of violence, the s 61DA presumption does not apply. Further having regard to the 60CC factors in the factual circumstances of this family, I am satisfied that it is not in the best interest of the child for there to be an order for equal shared parental responsibility.
As to time the child should spend with the father, I am not satisfied that he should spend any time with the child, having regard to the evidence, findings and there is an unacceptable future risk to the child. In addition there is the impact of his threat upon the mother, who is and has been the child’s primary carer.

I certify that the preceding two hundred and seventy two (272) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 21 December 2012.

Associate:

Date: 21 December 2012