ANDERSEN & TONKS
[2016] FCCA 2015
•9 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANDERSEN & TONKS | [2016] FCCA 2015 |
| Catchwords: FAMILY LAW − Whether final orders or interim orders should be made − whether order for unsupervised time would affect the mother’s mental health − whether mother’s mental health would affect the child’s neurological development. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 61DA, 61DAA, 65CA, 65DAC, 67N(1) |
| Applicant: | MR ANDERSEN |
| Respondent: | MS TONKS |
| File Number: | DGC 2884 of 2014 |
| Judgment of: | Judge Phipps |
| Hearing dates: | 21, 22 & 23 March 2016 |
| Date of Last Submission: | 23 March 2016 |
| Delivered at: | Dandenong |
| Delivered on: | 9 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mcleod |
| Solicitors for the Applicant: | Goodman Group Lawyers |
| Counsel for the Respondent: | Ms Hession |
| Solicitors for the Respondent: | Walls Bridges Lawyers | |||
|
Dandenong Family Lawyers |
ORDERS
That all previous orders are discharged.
That the mother have sole parental responsibility for the child X born (omitted) 2014.
That the mother keep the father informed of decisions she makes concerning major long-term issues in relation to the child.
That the child live with the mother.
That the application be adjourned for interim hearing on 27 April 2017.
UNTIL FURTHER ORDER
The father spend time and communicate with the child each week at the (omitted) Children's Contact Service on a supervised basis at such times as the Centre is able to accommodate the time with the father bearing the costs of same.
Upon the father providing to the Independent Children’s Lawyer evidence of satisfactory completion of the Post Separation Parenting Course which he is currently undertaking the father spend time and communicate with the child as follows:
(a)In week one for a period of two hours supervised by Ms R or her nominee at such times as Ms R is able to accommodate;
(b)In week two at the (omitted) Children's Contact Service on a supervised basis at such times as the centre is able to accommodate;
with all handovers to occur at the (omitted) Children's Contact Service and the father to bear the cost of such supervision.
The father ensure that he has an appropriately fitted car seat.
The father forthwith enrol in and provide to the Independent Children’s Lawyer evidence of his completion of a parenting skills course as nominated by the Independent Children’s Lawyer.
The parents and each of them forthwith enrol and engage in:
(a)Family Therapy at the direction of the proper officer of Family Life at (omitted); and
(b)The Parenting Orders Program at the (omitted) Children's Contact Service.
The Independent Children’s Lawyer be at liberty to provide to the (omitted) Children's Contact Service, Ms R and the Family Therapist nominated by Family Life (omitted) copies of the Family Reports of Ms T and the affidavit of Ms B.
The father identify and name the persons living in his home to the Independent Children’s Lawyer from time to time.
That each of the parents use a communication book to exchange information about the child’s needs and activities and development.
That the father and the mother, their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating each other in the presence or hearing of the child.
The Independent Children’s Lawyer be at liberty to obtain reports from the (omitted) Children's Contact Service and Ms R.
IT IS NOTED that publication of this judgment under the pseudonym Andersen & Tonks is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 2848 of 2014
| MR ANDERSEN |
Applicant
And
| MS TONKS |
Respondent
REASONS FOR JUDGMENT
Introduction and proposals
The applicant father and the respondent mother have one child X born (omitted) 2014. The child lives with the mother and has spent time with the father only at a supervised contact centre.
The father’s proposal is that:
a)The parties have equal shared parental responsibility for the child;
b)The child live with the mother;
c)The child spend time with the father on an unsupervised basis;
i)Until 1 September 2016 each Sunday from 9.00am to 3.00pm, each Tuesday from 4.00pm to 6.00pm and each Thursday from 4.00pm to 6.00pm;
ii)From 1 September 2016 to 1 March 2017 each Sunday from 11.00am to Monday 10.00am, each Tuesday from 4.00pm to 6.00pm and each Thursday from 4.00pm to 6.00pm;
iii)From 1 March 2017 to 1 March 2018 each alternate weekend from Saturday 5.00pm to Monday 6.00pm, each Tuesday from 4.00pm to 6.00pm and each Thursday from 4.00pm to 6.00pm;
iv)From 1 March 2018 to the child commencing primary school each alternate weekend from Saturday 5.00pm to Monday 6.00pm, each Wednesday from 4.00pm to 9.00am Thursday and such further and other times as agreed between the parties;
v)Following the commencement of primary school each alternate weekend from the conclusion of school Friday to the commencement of school Monday and half school holidays;
vi)For four hours on the child’s birthday and four hours on the applicant’s birthday.
The mother’s proposal initially was that there should be no time with the father. She said she proposed this because after 18 months of supervised time and numerous court appearances she could see no way forward with the father for him to see the child.
At the conclusion of the evidence the Independent Children’s Lawyer put a proposal which was supported by the mother. The proposal was unusual at the end of evidence in a final hearing because it proposed interim orders continuing, supervised time for 12 months and an adjournment for 12 months. The reason for the proposal was that the evidence did not support anything other than supervised time, did not show that supervised time must continue indefinitely but did not show how and when there could be a transition from supervised time to unsupervised time.
The Independent Children’s Lawyer’s proposal for interim orders during the 12 month adjournment is:
(16) That all previous orders be discharged.
That until further order:
(17)All extant applications be adjourned for interim hearing to 23 April 2017.
(18) The child live with the mother.
(19)The father spend time and communicate with the child each week at the (omitted) Children's Contact Service on a supervised basis at such times as the Centre is able to accommodate the time with the father bearing the costs of same.
(20)Upon the father providing to the Independent Children’s evidence of satisfactory completion of the Post Separation Parenting Course which he is currently undertaking the father spend time and communicate with the child as follows:
(a)In week one for a period of two hours supervised by Ms R or her nominee at such times as Ms R is able to accommodate;
(b)In week two at the (omitted) Children's Contact Service on a supervised basis at such times as the centre is able to accommodate;
with all handovers to occur at the (omitted) Children's Contact Service and the father to bear the cost of such supervision.
(21) The father ensure that he has an appropriately fitted car seat.
(22)The father forthwith enrol in and provide to the Independent Children’s Lawyer evidence of his completion of a parenting skills course as nominated by the Independent Children’s Lawyer.
(23) The parents and each of them forthwith enrol and engage in:
(a)Family Therapy at the direction of the proper officer of Family Life at (omitted); and
(b)The Parenting Orders Program at the (omitted) Children's Contact Service.
(24)The Independent Children’s Lawyer be at liberty to provide to the (omitted) Children's Contact Service, Ms R and the Family Therapist nominated by Family Life (omitted) copies of the Family Reports of Ms T and the affidavit of Ms B.
The father identify and name the persons living in his home to the Independent Children’s Lawyer from time to time.
That each of the parents use a communication book to exchange information about the child’s needs and activities and development.
That the father and the mother, their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating each other in the presence or hearing of the child.
The Independent Children’s Lawyer be at liberty to obtain reports from the (omitted) Children's Contact Service and Ms R.
Issues
There are two principal issues. The first is the mother’s mental state and ability to care for the child should she be so affected by unsupervised time that it will be a serious detriment to the child. The second is the father’s ability to care for the child.
Children’s provisions
Children’s provisions are contained in Part VII of the Family Law Act 1975 (Cth). The objects and principles are contained in s.60B. Section 60CA provides that the best interests of the child is the paramount consideration in considering parenting orders. The best interest considerations that the court must consider are in s.60CC.
Section 61DAA is a presumption that it is in the best interests of the child for the parents have equal shared parental responsibility. This presumption may be rebutted if there are reasonable grounds to believe that there has been family violence or abuse of the child or the court is otherwise satisfied that it is not in the best interests of the child for the parties to have equal shared parental responsibility.
Discussion
The mother says in her affidavit of 11 March 2016:
I continue to experience stress, anxiety and depression as a result of Mr Andersen’s treatment of me. Coming out of relationship I felt fragile and traumatised. Mr Andersen is a tall and solidly built man. I am genuinely fearful of the day uncontrollably physically shake but I have to come within close proximity to him.
The history of the parties’ relationship requires examination. The mother was born on (omitted) 1981 and is 35 years of age. The father was born on (omitted) 1978 and is 38 years of age. The parties met in (omitted) 2011, started socialising in (omitted) 2012 and commenced a de facto relationship (omitted) 2013, married on (omitted) 2013 and separated on 12 April 2014.
The mother says that the father was initially very charming towards her. She says he was a regular heavy drinker. She drinks very minimally and said after they had been seeing each other for six months she questioned his behaviour and during the following months he stopped smoking and reduced his drinking.
Before the parties commenced living together there were a number of breaks in the relationship. She said that in (omitted) 2013 the father was to move into her home. Around this time she witnessed him have a fight with his family and they broke up as she was concerned about his behaviour. She says he continued to call and visit her home and they got back together in (omitted) 2013. The father moved into her house in (omitted) 2013 and they married in (country omitted) in (omitted) 2013.
The mother learnt that she was pregnant at (omitted) 2013. She said that up until then she had been concerned about the father’s behaviour but his behaviour worsened particularly after she became pregnant. She describes him as denigrating her, both privately and physically; treating her with disrespect and as though she was “his property”. She became unwell with the pregnancy and his level of tolerance declined.
She describes particular examples:
a)She says that the husband gambled. He was a member at Crown Casino and he and his brother frequently went there to drink and gamble. She did not approve;
b)Around July 2013 the father attended “(omitted)” dog training with her to help with the dog’s behaviour. She says he started to use dog training behavioural control techniques on her using the word “bah! to correct her. The father says this was a joke but that is not the way the mother saw it;
c)She says that he told her he talked openly about her body to his friends. She says on one occasion he telephoned her while travelling in a taxi and spoke of her sexually to the taxi driver;
d)Whilst out at dinner with his family he got drunk and repeatedly touched her breasts in front of everyone.
She says that about (omitted) 2013 they attended a wedding. She suspected she was pregnant. Towards the end of the evening she removed her bra as it was uncomfortable and told the father. She said he then started telling her about his friend Mr R and the marital problems he was having. She says he said to her that his friend “hasn’t had a good feel in a long time” and said that he told his friend he could feel her breasts. She was extremely embarrassed and appalled. She questioned him in the car on the way home and he repeated similar sentiments. She says he did not demonstrate any insight that what had happened was inappropriate or offensive to her.
The father arranged a New Year’s Eve party. She did not drink but the father did. She said that another of the father’s friends, Mr O was sitting with them. She said the father said to her that he had told this friend about her breasts, how great they feel and that he had invited his friend to touch her. As she leaned forward to pick up a drink the friend ran his hand down her breast. She “bolted” inside. She says when she told the father he said it is not a big deal get over it.
The father denies both of these incidents. I am satisfied that both occurred.
The mother’s description of the two incidents is detailed. She is unlikely to have made them up. When they are combined with other evidence of the mother about the father talking to others about her body and touching her breasts in public they show a pattern of behaviour. There is other evidence, described later, which shows that the father is aggressive and not concerned about the mother’s condition.
The maternal grandmother says that on 21 February 2014 she met the father in a cafe in (omitted). She says she asked him if he had made a loud and aggressive phone call using abusive language with the mother. She says he said he had and he regretted it. She says she asked him about the New Year’s Eve party and asked did his friend touch the mother’s breast. She says the father said yes he did.
I can see no reason why the maternal grandmother would make up this evidence. She had a positive view of the father when the mother and father first met. She now does not and obtained a family violence intervention order against the father. She received some highly abusive text messages referred to later and her view of him is now different but I am satisfied that she has not made up this evidence or that she is mistaken.
There is a further reason. The father’s friend Mr O was not called. On 6 & 9 July 2014 an application for an intervention order against the father brought by police was heard at a contested hearing. The application was dismissed. The mother says in her affidavit of 11 March 2016 that the magistrate said that in her view the father was boorish and sexist and talked about his wife’s body in a sexual manner with his friends based on the evidence. She says the magistrate, whoever that was, was not convinced that there was sufficient evidence of family violence to grant a family violence intervention order.
The father’s friend, Mr O, was not called to give evidence in these proceedings. His absence was not explained. In cross-examination by the Independent Children’s Lawyer the mother says that the father’s friend Mr O gave evidence in the intervention order proceedings. She says that he admitted that the father had spoken about her body but he avoided answering the question about touching her body. She said the judge asked about the touching outright. She said the friend Mr O avoided the question and would not answer.
When cross-examined by counsel for the father about her statement in her affidavit of 11 March 2016 about the Magistrate’s finding the mother says she obtained the Compact Disk of the hearing for the intervention order and had listened to it. The cost was $55. When asked by counsel for the father if she had it transcribed her answer was “No. But I have the CD if you would like it.” This was on the first day of the hearing, a hearing which lasted 3 days. If the mother’s invitation to provide the CD was taken up it was not put into evidence.
The mother’s evidence about the intervention order proceedings is admissible because the hearsay rule does not apply to children’s proceedings. I have more confidence in the evidence because the mother says she had listened to the recording and she offered to make the recording available. If the recording showed that the mother was wrong it could have been tendered.
The father’s friend Mr O was not called and no explanation was given for his absence. He gave evidence in the Family Violence Intervention Order proceedings. The father’s friend Mr O would be the father’s witness if anyone was to call him. I draw the inference that the evidence the father’s friend Mr O could have given would not have been favourable to the father’s case.
I am satisfied on the balance of probabilities that what the mother says of the incidents in late 2013 is correct. I am satisfied that on other occasions the father spoke about the mother’s body to other persons and that he did touch her breasts in the presence of others at a family birthday.
The mother’s statement that she was extremely embarrassed and appalled by the father’s behaviour is the obvious reaction of someone in her position. I accept what she says.
The mother says when she was about six weeks pregnant she suffered from morning sickness and was feeling very tired. She says the father became very demanding insisting that she report to him what she ate. She says he demanded she start a food diary. He accused her of courting other people’s food and junk food. She says he told her to cook “your own fucking food” when she was unable to eat what he had prepared.
She says the father was not interested in her reading pregnancy information to him. He demanded to know how she felt and was irritated by her feelings. She says he made rude comments about her weight gain.
The mother says that the father regularly used offensive language. She made it clear she did not like this language however he dismissed her feelings and said he felt it was okay to swear at her and around her. She says after they were married the father was critical of her clothes. He wanted more “sex appeal” and told her to show more cleavage. About financial matters he said he would make the decisions because he knows what is best.
She says he swore at her and in text messages. He accessed her Facebook account without her consent and accepted a friend’s request for friendship. She says he denied this initially then admitted it. She says he did not understand why she was upset.
She says that at approximately 10.00pm on 12 February 2014 she was in bed. The father came in and had a heated argument with his brother on the phone. She says he was yelling loudly and swearing very abusively and aggressively in the next room. She says as he put the phone down he said “you’re as useless as my missus”. She felt frightened. She felt abused and unsafe and worried for herself and her baby. She decided to leave and went to her parents.
She sent a text message to the father the next day and asked him to leave the house for two weeks after which they could talk about their marriage. In his text response he refused to leave and called himself “neglected husband”. His second text criticised her for not ironing shirts: another text message read “… I am not doing this shit again because of u. I am working too hard and have too much on for your hormonal crap. GROW UP… Harden up Ms Tonks!!!!!!!”.
On 14 February 2014 the father came to the mother’s parents’ home with flowers and demanded to speak to her. She says she was not able to face him and her mother spoke to him.
A police officer applied for and obtained an interim family violence intervention order and on 15 February 2014 served the order on the father and he was removed from the house. She returned on 16 February 2014 and her mother came to stay with her for a while. Her mother organised for the locks to be changed and a security door was ordered. Window locks and screens were ordered. Over several occasions the father collected his belongings from the mother’s house.
The mother’s mother stayed at the house for a time. On 27 March 2014 at approximately 3.30am both awoke to a loud banging noise. In the morning she discovered that large river rocks had been thrown onto the flat roof over her bedroom at the back of the property. To do so the person throwing them would have to enter the property and throw the rocks onto the roof from the side of the house.
On 25 April 2014 the mother was alone in the house. Her mother had gone home for the night. Sounds from the side of the house woke her at about 2.00am. She says it sounded like small stones being thrown onto the roof. She called the police and while on the phone to police while sitting at the back of the house there was a loud glass smashing and crashing sound from the front of the house. The police attended shortly afterwards. A large concrete retaining garden wall block weighing 8 kg had been thrown through the front of the house.
The mother’s mother returned to the house and next day the mother left to stay with a friend.
The father denies that he was responsible for the rocks and concrete block being thrown at the house. He denies that anybody did either on his behalf. No finding can be made either way but the mother’s fear that it was the father or someone on his behalf is a rational fear.
On 24 June 2014 the mother had been feeling unwell with strong pressure on her chest. Her general practitioner sent her to (omitted) Hospital and after tests the conclusion reached was that the pressure was caused by stress. The mother says she felt like she couldn’t breathe, her chest felt like it was in a vice and her heart would palpitate, stop then start pounding rapidly before palpitating again.
On 7 and 9 July 2014 a contested hearing for the Family Violence Intervention Order took place in the Magistrates Court Moorabbin. The mother says that at the conclusion the magistrate said that in her view the father was boorish and sexist and had talked about his wife’s body in a sexual manner with his friends based on the evidence but was not convinced there was sufficient evidence of family violence to grant a final intervention order.
The mother says that on 11 July 2014 she received an email from Facebook notifying her of attempted logins to her account after she changed her password. She says that between 11 July and 20 August 2014 there were nine blocked calls made to her phone. She had blocked the father’s telephone number. She says she answered one of the blocked calls. It was from the father. She hung up. The mother also alleges there were attempts to access her Gmail account.
The father denies that he made any telephone calls to the mother while the interim intervention order was in place between 15 February 2014 and 9 July 2014. He denies attempting to access the mother’s Facebook page or Gmail account. The evidence does not permit a finding the father made phone calls or did attempt to access the mother’s Facebook page and Gmail account. I accept the mother’s evidence that there were blocked telephone calls and that there was evidence of attempts to access her Facebook page and Gmail account. Her belief that these are done by the father is a rational belief.
After the intervention order hearing in July 2014 the mother wrote to the father proposing that after the child’s birth he see the child on three occasions each week for one hour at a cafe that she named in (omitted). She wrote letters on 10 July, 17 August and 26 August. She says she proposed this cafe because there was both a front and a back entrance and she could wait at the back outside the cafe where she was close by. She says the father rejected this proposal and wanted the mother to come to his home. The father claims there was an agreement that he would see the child three times a week. A letter he wrote after the child’s birth suggests he considered that he could come to the mother’s home pursuant to this agreement. The mother says that the proposal was for three times a week at a café. She offered a park but she did not agree to any other proposal.
The mother was in labour from (omitted) 2014 and the child was born on (omitted) 2014 by emergency Caesarean Section. She was known by an alias of the hospital so that the father would not be able to identify where she was. She had her telephone on aeroplane mode so that the father would not be able to contact her. She was very unwell after the birth.
On 7 September 2014 the mother wrote to the father informing him of the birth and that the child’s name was X. She advised him of the child’s weight his length and head circumference and said that he was healthy and well and came out of hospital that day (omitted) 2014.
She referred to constant SMS and blocked calls from him and said they caused her to feel pressured, harassed and stressed in the last weeks of pregnancy. She said that she had six weeks of surgical recovery ahead while establishing a breastfeeding routine and care for the child. She said that any stress or anxiety during this time would have a powerful and negative affect on her health which would in turn impact on their son. She advised that the Family Dispute Resolution Centre in (omitted) made a decision that there should be no mediation until six weeks after the birth.
The mother says that on 8 September 2014 the father sent several angry texts regarding the letter and demanding to see the child. She says he came to her house twice but she and her mother did not answer the door. The father says he sent one text message. Given the content of the letter the father sent the same day I consider it probable that the contents of any text message he sent was angry. I accept that they were.
The father responded by letter dated 8 September 2014. The letter expressed no concern for the mother’s health. It referred to his “significant and substantial” rights to the child. It said that the mother had accepted the father’s proposal for Tuesday/Thursday/Sunday. It said that he would be over on Tuesday 9 September 2014 at 3.00pm to bond with his child as well as Thursday and Sunday. It then went on:
If you want to be there for these bonding sessions than I will come to your home and you can be around.
If not then I would expect X to be ready by this time… and I will take him with me!
Otherwise I will call the police on the spot as they will be expecting my call…
The letter contained a P.S. It reads in part:
Make this easy on yourself Ms Tonks and reply immediately via SMS. You cannot keep me away from my son without being prejudiced so stop your games immediately or in the future this will affect you with disastrous consequences… The police, legal councils, and councillors already think you are crazy, inhumane, selfish, disrespectful and a compulsive liar.
Prior to the child’s birth the mother had made contact with a Family Relationship Centre and had been advised that there should be a period of six weeks after the child’s birth before mediation took place.
On 10 September 2014 a family dispute resolution practitioner from the (omitted) Family Relationship Centre advised that the parties’ situation was not suitable for mediation due to family violence. On 11 September 2014 the father left the voice message on the mother’s phone which she wrote down in her notes as follows:
Ms Tonks, you lying fucking cunt. You said we could do mediation and I just spoke to Mr A. You really want to pay don’t you
On 12 September 2014 the father left another voice message which the mother again wrote down in her notes as follows:
Ms Tonks you are a crazy, crazy, crazy woman. Everyone knows you are so inhumane. I am going to continue to do just what you don’t want me to do. What are you going to do? Change your phone number? Change your address? I don’t think so. I have been holding everyone back but now….
On 12 September 2014 the mother says her mother attended at the (omitted) Police Station. The mother received a text message from the father saying “Your mother is at the police station, hmmm”. The father says he sent a text to show that that he knew what the mother was trying to do. In cross-examination he acknowledged that he was trying to intimidate the mother and said he did not (now) think it was appropriate. He says he was frustrated and upset.
The mother’s mother organised a safe place at (omitted). The mother says she was relieved to be there. She put her phone on aeroplane mode because she says the father’s text messages and calls were incessant and alarming.
While at (omitted) the mother became ill and was admitted to (omitted) Hospital. She was in hospital from (omitted) 2014 with the child. On 17 September 2014 the police applied for a Family Violence Intervention Order on behalf of the mother. On 19 September 2014 the father consented to a final intervention order naming the mother and the child as protected persons. On 6 October 2014 a final Family Violence Intervention Order naming the mother’s mother as the protected person was made against the father.
The father commenced this application on 19 September 2014. On 3 October 2014, 9 October and 10 October the father sent the mother text messages asking to see his son the last of them on 10 October 2014 reads:
Last chance Ms Tonks or we will be back in court sooner to see out son:) You will then have to explain why u r keeping X away from the when there has never been any family violence. Just spoke to the police and they said stop being nice as Ms Tonks is not cooperative at all about X. If she let you see him by now it was worth it but don’t make it easy As she is not being cooperative. Let me see X or else I am going on their adviceJ
The mother says that on 9 October 2014 she attended at (omitted) Maternal Health Centre for the child’s four week appointment. She says that when she left the house and turned to walk towards (omitted) she froze broke down in tears and was sobbing. She said the idea of moving towards (omitted), knowing the father was the in the area, made her feel ill.
She says that her mother rang and the Maternal Health Nurse spoke to her and she was able to take a longer route.
On 16 October 2014 the mother’s solicitors wrote to the father proposing he spend time with the child at (omitted) Children's Contact Service. The letter enclosed information about the service and a CD of photographs the mother had prepared together with information that the mother had put together about the child at five weeks.
The father sent the mother text messages on 17 October and 20 October 2014. They thanked her for the photos but contained similar sort of language to earlier text messages.
On 28 October 2014 Ms H, practice leader at (omitted) Children's Contact service, wrote to the mothers solicitor. Ms H made an affidavit verifying the correctness of the contents of the letter. She was cross examined during the proceeding.
The letter states that on 23 October she called the father to inform him that she had received both applications and was able to put him in for Intake and Assessment. There were some discussion about dates and in the course of the conversation the father said of the mother that she was a “bitch”. The father was unable to commence time on Saturday 15 November as offered by Ms H. She proposed the following week. The father asked if he could make the visit sooner and suggested the next Monday or Tuesday. Ms H informed the father that they were only open on Saturdays and suggested a one hour visit due to the baby’s age. The letter then says:
Mr Andersen then became verbally aggressive and used lewd and offensive language directed at Ms Tonks, stating that she was a “cunt”. When I asked Mr Andersen “did you just say what I thought you said” he hung up the phone.
The letter refers to an earlier conversation on 23 October 2014 with the mother’s solicitor. The mother says that the solicitor informed her of this conversation.
On 30 October 2014 the father sent the mother a text message which was in similar aggressive tone to earlier text messages. It included the statement “your spitefulness and immaturity is ridiculous”. The mother alleges this was in breach of the Family Violence Intervention Order.
The mother says that on 10 November 2014 she had seen the father drive past her house that day and she says on 13 November 2014 she also saw him drive past. The father denies both events. Whether or not he did drive past on either of those dates I accept that the mother believes that he did.
The mother says that on 20 November 2014 she went with her mother to the local primary school to vote. She said she had been there 15 to 20 minutes when she saw the father arrive and join the queue. She said he was standing outside the only exit. The mother says she panicked. She was assisted by an election official. She left after her mother told her that the father had gone.
The maternal grandmother gave evidence about her dealings with the father. She was at the mother’s house on several occasions after the parties had separated when the father, sometimes accompanied by police, came to collect his possessions. She describes aggressive behaviour by the father and says that on the last occasion, 8 April 2014 he wanted to go through the house but she said there was nothing of his there and the police present informed him he could not go through the house. She said he was angry. He started to walk to his car and started calling out how he would cause financial ruin and declare the mother an unfit mother. She says he said to her “do the world a favour Ms J and go and commit suicide”. She says he was warned by the police officer about his behaviour. It was after this that the mother obtained a Family Violence Intervention Order against the father.
On 9 September 2014 she met the father at the mother’s house. She had photos on her phone to forward to the father. She says she offered to meet the father so she could let him know the mother was unwell. The father wanted to discuss arrangements for seeing the child but the grandmother said she was not there to do that. He had the letter from the mother. She said he was abusive and when told to leave he refused. After she rang 000 he left and stood on the footpath. He left before the police attended and as they were leaving the father returned. She says she spoke with the police.
The grandmother then received many text messages on 9, 10 and 11 September 2014 which she says contained threats and abusive language, including the following passages:
U r a selfish cunt with no heart Ms J. I just want to see my baby
U r a heartless bitch Ms J
U think u know the law but keep fucking up
This will shit in your face I will win again
your mental issues rubbed off on Ms Tonks and the baby will be all mine and visiting rights u can shove straight up ur cunt
if you had a fucking brain u would realise this stops when I see my baby
you and your daughter are fucked up! Get a fucking life Ms J!! With your mental issues this baby will be mine very soon
On 12 September 2014 the grandmother went to (omitted) Police Station. The father followed her in and she says intimidated her.
The father filed the Initiating Application 19 September 2014. After receiving the mother’s response and affidavit the father acknowledges that he made a notification to the Department of Health and Human Services, Child Protection. He says he was concerned about the safety of the child because of the mother’s mental health. The mother says she was contacted by a child protection officer causing her to stress. Child Protection took no action.
On the first court date, 10 December 2014, after a contested hearing I ordered that the child spend time with the father at the (omitted) Children's Contact Service each week at such times dates as could be facilitated by the service. I made an order appointing an Independent Children’s Lawyer. On 5 February 2015 I ordered that each party attend upon a psychiatrist for the preparation of a report, that the Independent Children’s Lawyer obtain a report from the children’s contact service, that each party undertake a post separation parenting course and the father undertake a anger management course. The father continued to seek unsupervised time. The order for supervised time continued.
On 1 April 2015 I made an order for a family report and adjourned the application to 20 August 2015 and continued the order for supervised time at the contact centre. The father continued to propose unsupervised time or supervision outside the contact centre.
Time at the (omitted) Children's Contact Service commenced on 20 December 2014 and continued until March 2015. The contact centre then suspended time. It resumed on 25 June 2015 and has continued.
Initially the father’s time was on Saturday from 3.00pm to 4.00pm. He requested a change to 4.00pm to 5.00pm and that was done as a one-off. Ms H, the contact centre supervisor said the child became grizzly. She spoke to the mother and they believed it was in the child’s best interest to have an earlier timeslot because the time was not suiting him. She said after several conversations the father hung up the phone. She said he was angry, controlling and intimidating.
The father said the time needed to be later because of his employment as an (occupation omitted). (Employment omitted) on Saturday was 3.00pm. In cross-examination he blamed the service and to some extent the mother for the suspension.
On 26 June 2015 the father applied for a Family Violence Intervention Order against the maternal grandmother. An interim intervention order was made on 21 July 2015. The father did not appear on the return date and it was struck out.
The father says he applied for the order because the maternal grandmother attended at his place of employment, harassed staff and threatened to have him sacked. He also says she attended at an (employer omitted) conducted by his employer.
The maternal grandmother says that on 17 June 2015 in the morning she was contacted by the mother in an extremely distressed state. She said she was in the (omitted) shopping strip and the father walked past her and stood watching her. The grandmother said she went to where the mother had seen the father in a supermarket. She did some shopping in the supermarket and then noticed an (omitted). She knew the father worked as an (occupation omitted) and went in and asked if the father was employed there. She was told he was. She said she did not want to see him. The receptionist asked if she would like the father to call her and she gave her telephone number.
The mother says that Mr P rang her. Mr P appears to be the father’s employer. She met him at a cafe and discussed the intervention order. She says the conversation was amicable.
She says on 27 June 2015 she attended at (employer omitted) at which Mr P was present. She says she attends (omitted) frequently. She spoke to Mr P to make sure there was no misunderstanding about them speaking together and he assured her that there was not.
The father says he received a letter on 28 July 2015. The letter commences “Mr Andersen,” but is not signed and does not identify the sender. It refers to 21 fathers a week committing suicide due to custody battles and goes on to say “why don’t you just do the world a favour and follow suit…”.
The letter says the father is fighting a lost cause and that if he does not stop hassling and trying to see the child “it says “give up, leave us alone or it will become much more painful”. It concludes with “we don’t want you so read the first line again!”.
The father reported to police that he believed the grandmother had placed it in his letterbox. The grandmother was interviewed by police who took no action. An affidavit by the grandmother gives a detailed account of her movements that day, a substantial part of which could be verified by police if necessary because the grandmother said she went to and from her employment by a route which included tolls for which she used her etag.
The mother in an affidavit makes an analysis of the contents of the letter, the writing style pointing, she says, to the father as the writer of the letter. The father denies that he wrote it. The mother has no expertise in making this sort of assessment she did and I cannot conclude that the father wrote it.
I do not consider that the grandmother wrote the letter. She does not impress as a person who would do such a thing. She points out that she (occupation omitted) and her syntax and grammar is far better than that shown in the letter. One thing the episode and the parties’ current approach to it show is the level of animosity between the parties. The mother believes the father wrote the letter in an attempt to establish a breach by the grandmother of the intervention order.
The (omitted) Contact Service prepared comprehensive reports. The father’s time with the child shows a positive relationship between father and child except that the father had difficulty changing nappies.
The report contains some negative aspects about the father. In addition to the supervisor’s evidence referred to above there is also evidence that on one occasion he described the mother as a “conniving bitch”. The father said he used the word “witch”. Which is correct is of little concern. It shows a continuing hostility by the father to the mother and use by him of abusive language about her.
Family reports
Ms T prepared two family reports dated 16 July 2015 and February 2016. She says of the father that he impressed as highly frustrated with the current situation. He definitely disagreed with the need to spend supervised time. Ms T describes the father’s views in respect of the mother as consistently negative. He believes the mother has mental health issues and reneged on an agreement prior to X’s birth that he be able to spend time each week with the baby.
Ms T says the father was openly dismissive of the mother’s descriptions of family violence. He was then attending a men’s behaviour change program and was dismissive of the reasons for his participation.
Ms T says that the mother impressed as a reasonable, committed and nurturing mother to the child. Ms T said that the child is thriving in her primary care. The mother acknowledged to Ms T that she remains frightened of the father. Ms T says the child impressed as a well-cared for baby. She said he appeared to be managing the current arrangements without signs of distress in respect to maternal separation. She described the parties’ communication as challenging. She said that given the mother’s descriptions of the experiences of family violence involving the father the situation was unlikely to change.
In the first report Ms T recommended that time continue at (omitted) Children's Contact service. The father complete the Men’s Behaviour Change and Post Separation Parenting Programmes prior to any significant change in the current arrangements, that the father cease to openly express negative views in relation to the mother in the presence or hearing of the child and the mother continue to engage in personal support and counselling services.
In the second report Ms T says the father continued to express his belief that he had never done anything to the mother and that he had not engaged in family violence. He said he struggled to understand why the mother was keeping him away from the child. Ms T says he described the mother as “vindictive, emotional, a desperate parent, I am definitely the victim”. He enquired after the mother and said he was aware that she was suffering from anxiety and engaged in personal counselling. He said he wanted the mother “to stay a capable mother”.
Ms T says the mother continued to impress as a devoted, caring and responsible parent of the child. She was concerned in respect of her safety during interview, not wanting to come into direct contact with the father. Her preference was that the arrangements for the father seeing the child remained as they were. She questioned the child’s safety and emotional well-being in unsupervised paternal time.
Ms T conducted an observation session of the child with the father, this being on the day of the interviews for the report 15 February 2016. She described the child and observed in his interactions with the father he made repeated calls for “mummy” however did not appear distressed. The child often refused interaction with the father. The child transitioned back into maternal care without distress.
Ms T noted the lack of progress in respect to an agreed alternative supervisor. She said that the current arrangement appeared to reassure the mother of the safety of the child. The mother was concerned consideration was being given to ceasing supervision of paternal time which caused her anxiety and worry. Ms T said this required sensitivity. The mother provides primary care, stability and emotional security to the child. Ms T recommended consideration be given to the impact of changes in the father’s time with the child upon the mother’s continuing ability to provide a high level of nurturing to the child.
Ms T in the second report recommended that in the short term the arrangements at (omitted) Children's Contact Service or the (omitted) Children's Contact Service be continued. She recommended that consideration be given to transition to change overs at the centre and the father spending two hours away from the centre with the child and that consideration be given to time involving the attendance of another adult or nominated supervisor.
The mother’s psychologist
The mother’s treating psychologist is Ms B. She provided a report and gave evidence. At the date of the report, 9 March 2016, she had seen the mother on 26 occasions from 24 September 2014.
Ms B says the mother had frequently exhibited alarm and anxiety during counselling. On nine occasions when Ms D assessed the mother for anxiety depression and stress her scores on the DASS21 were extremely severe on each occasion for anxiety, severe to moderate and then on one occasion extremely severe for depression and mostly severe but on one occasion mild and two occasions extremely severe for stress. Ms B describes in detail her observations of the mother on a number of occasions
In her report Ms B expressed her opinion that the mother did not meet the criteria for any diagnosis in the DSM5 (Diagnostic and Statistical Manual fifth edition). She says this:
She has exhibited anxiety symptoms but does not meet the criteria for Generalised Anxiety Disorder. She has exhibited symptoms of depression but does not meet the criteria for Major Depressive Disorder. She has exhibited trauma symptoms but does not meet the criteria of Post Traumatic Stress Disorder. Some of the symptoms she has exhibited over the course of the time I have seen her are: an exaggerated startle response; hypervigilance; psycho-motor agitation; persistent avoidance of stimuli that arouse recollections of the traumatic events; persistent self blame; sleep disturbance; nightmares; high anxiety; periods of low mood and bouts of crying.
In the report Ms B says that her opinion was that the mother had managed well in dealing with the stresses she had experienced. She said she could begin to suffer from an anxiety condition such as Generalised Anxiety Disorder, Post Traumatic Stress Disorder or a Major Depressive Disorder if she was continuing to be exposed to the severe stresses she perceives in her environment, especially those threats perceived as coming from the father.
In her oral evidence Ms B said that the mother feared that the father would have a different approach to parenting to her. The mother did not believe in any kind of physical punishment for a child where she believed that the father did. Her idea was that the child needed to be focused on and assisted to develop in a very hands-on kind of way. She did not believe that the father had that kind of approach to parenting.
Ms B was asked her opinion about the impact on the mother if there was unsupervised time. She said this:
I believe the impact on her resilience if unsupervised access were to occur could result perhaps in a depressive disorder, a generalised anxiety disorder or something of that nature, due to the fact that there would be perhaps difficulty around transition, like when the child was to go for access when the child was to come home. How that will be handled would be incredibly important. Also this issue of where these two people are at loggerheads how does a common parenting style develop. And I believe that would be something that would cause a great deal of grief to Ms Tonks if – if she was unable to be at one about the parenting style of the child. She’s a very committed parent and has very up-to-date and – and – and sort of ideas about what parenting is and should be.
Ms B, having confirmed that the mother did not meet the criteria for a major depressive disorder, when asked if she might said this:
I actually think now that probably the most likely thing that she would experience might be a depressive disorder despite the high anxieties. In the past I thought it was mainly an anxiety disorder she might experience but now I think it’s more likely to be a depressive disorder.
When asked about the mother’s capacity to parent the child if she had a major depressive disorder she said this:
I actually believe Ms Tonks is a very dedicated parent and would bring in assistance from her family, such as her mother and her sister and people that do support her, if she wasn’t able to parent her child well. But if she does go into a major depressive disorder, that would have an impact on the child neurobiologically. It can’t not. That’s what shown with the neuroscience these days. A depressed person impacts on a child’s – on the child’s neurological development, particularly the limbic system, especially up to about three years of age.
The father
The father in his evidence acknowledged that the mother was a very good mother. Despite this when cross-examined about what he had said to Ms T he said this:
At paragraph 10 of the report you continue to deny to Ms T that any of your behaviour towards the mother constitutes family violence?---In our-yes, in our prior relationship before we broke up, yes.
And you go on to describe the mother as, quote, vindictive. Do you think she is vindictive; yes or not? Is she vindictive?---She can be.
Emotional?---Yes.
A desperate parent?---It’s a bit harsh.
Your words. A desperate parent. This is in the quotation in paragraph 10?---Yes
Is that what you said to Ms T?---Yes.
“I am definitely the victim.”?---Yes
Later in the cross examination he expressed his love for the child, something about which there is no doubt. In this context he said that he was not going to give up on him. He said he could be in the court system for another 10 years: he acknowledged that it would not be good for the child to be in the court system for 10 years. He said:
No. I’m not going away till I get significant and substantial rights to my son. I want to be a father.
The father said in his evidence that he regretted the first six months after separation and he wished he could take it back. Counsel for the Independent Children’s lawyer asked him if he had apologised to the mother. On the second occasion he was asked he did. He said that he regretted he did not wait at the six weeks rather than sending text messages as he did.
The mother under cross examination by counsel for the father, was asked if she considered the father was sincere. She said she did not and she said she did not accept the apology. When asked what could be done to progress the situation she said this:
With all due respect, we’ve had a significant period of time with many opportunities for Mr Andersen to demonstrate that he would like to be a willing, cooperative parent with X and myself. And in that time it has been a war zone with no evidence of an-of any empathy or intent to make any form of relationship work in the parenting of X. I don’t know what else could possibly be an avenue for Mr Andersen to work with me and raise X. Neither, it appears, does Mr Andersen.
So what you say then is you’ve heard these words today but they’re hollow?---I believe that Mr Andersen believes he wants to see his son. But he didn’t provide any other verification or his own words to suggest that he is prepared to co-parent or work within the system. He certainly has demonstrated that to this point.
Family violence
The father does not accept that he committed any family violence, at least prior to separation. Family violence as defined in s.4AB of the Family Law Act 1975 (Cth):
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful
By the time she left her home and separated from the father the mother was fearful of his behaviour. It became even stronger from then up to the birth of the child and after the birth of the child. This was because of the behaviour of the father. His attitude towards her, including talking about her sexually and encouraging friends to touch her, being critical of her and abusive was what caused her fear. The final event which caused the mother to leave the relationship was the father’s angry telephone call to his brother and his statement “you’re as useless as my missus”.
The mother’s fear of the father was a reasonable reaction to his behaviour. The text messages and other behaviour which followed caused her to be even more fearful. His behaviour was at least threatening and perhaps even in some instances more. His behaviour does come within the definition of family violence and caused the mother to be fearful.
Parental responsibility
Section 61DA of the Family Law Act 1975 (Cth) provides a presumption that it is in the best interests of a child that the parents have equal shared parental responsibility. The presumption is rebutted if there are reasonable grounds to believe that there has been family violence. There is so the presumption is rebutted.
The effect of parenting orders that provide for shared parental responsibility is described in s.65DAC. The order requires decisions about major long-term issues to be made jointly by the parties. Each must consult the other person and make a genuine effort to come to a joint decision about the issue. Major long-term issues are defined in s.4(1) and include the child’s education (both current and future), the child’s religious and cultural upbringing and the child’s health.
The parties have a limited ability to communicate. Their communication is confined to a communication book which contains day-to-day information about the child. The mother is nervous not just in the presence of the father but in the vicinity of the father. The parties do not communicate by telephone or other electronic means and I am satisfied they have no ability to do so in any constructive fashion.
The inability to consult is a further reason why there should not be an order for equal shared parental responsibility. It would risk further litigation because inevitably the mother would have to make decisions on her own and the father might commence further proceedings or bring a contravention application. He has expressed the intention to keep going until he gets what he wants. Avoiding further litigation is a best interest consideration in itself. Placing on parties an obligation to consult when they are unable to is not in the child’s best interests.
The child’s best interests are served by the mother having sole parental responsibility. There is no dispute that there should be an order that the child live with the mother.
Best interests
Since there is no order for shared parental responsibility I do not need to consider the requirements of s.65DAA. I have to consider the best interests of the child which s.65CA provides is the paramount consideration in considering parenting orders. The best interest considerations are contained in s.60CC.
The first of the primary considerations is the benefit to the child of a meaningful relationship with each parent. The reports of the child’s time with the father at the contact service show that the child is developing a relationship with the father and will benefit from a relationship with him. The question is how that can be done.
The second of the primary considerations is the need to protect the child from harm or risk of harm. The mother, at least at times in the past, was fearful that the father might hurt the child. The father has now undertaken a Men’s Behaviour Change Programme and was in the process of a parenting course. There is an issue about his parenting skills but that is not an issue about risk of harm.
Not all the additional best interest considerations are relevant. The child’s relationship with each parent and other persons including grandparents is relevant. The mother is the child’s primary carer and the child’s well-being is bound up with the mother’s well-being. The child does have a relationship with the father.
Because of the mother’s close association with her mother the child has a relationship with the extended family on his mother’s site. He has met some of the father’s extended family at the contact service.
The consideration of the extent to which each parent has participated in the child’s life is relevant. The father has done this to the extent to which he has been able because he has only been able to see the child through orders made in this proceeding and they have always been of supervised time. Except for a period when time was stopped he has participated.
Significant considerations in this case are the effect on the child of any change and the ability of each parent to provide the child’s needs. They can be considered together. The evidence shows that a move to unsupervised time places the mother at significant risk of suffering from a major depressive condition. I accept Ms B’s evidence concerning this risk. I accept her evidence that this would place the child at significant risk, in particular risk to the child’s neurological development.
So far as the father is concerned there are some doubts about his basic parenting skills.
The other relevant consideration is the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents. The father consistently refers to his right to see the child. He showed a lack of understanding of the effect of his behaviour on the mother, and so the child. He said in his evidence that he now understands but I have significant doubts that he does. At the conclusion of his evidence he talked of continuing in the courts for ten years and he said he would keep going until he gets what he wants. The mother had said in her evidence that she could not see a way forward for her and the father to cooperate in parenting the child. The father does not understand that at some level there must be some cooperation by him with the mother.
Conclusion
The risk to the mother and so the child’s health if there is unsupervised time is sufficiently serious in itself to require a continuation of the supervised time. When that is combined with the doubts about the father’s parenting skills and his inability to understand that the responsibilities of parenthood require a consideration of the circumstances of the other parent the child’s best interests are served by continuation of unsupervised time. The child’s best interests will not be served by making no orders for the child to spend time with the father. Ultimately the mother recognises this.
When supervised time might come to an end cannot be determined now. This will depend upon the mother’s fear of the father lessening and this in turn will depend upon the father. Supervision cannot continue forever but the child’s best interests are served by continuing supervised time rather than making a final order which means no time.
Conducting proceedings without undue delay is a principle for conducting child related proceedings set out in s.67N(1). The making of interim orders and adjourning the case until 2017 does delay a final decision but this is preferable to an order which would mean that the child’s relationship with the father would come to an end, or at least an end for a considerable period of time. The child’s best interests are met by making an order proposed by the Independent Children’s Lawyer and supported by the mother.
I certify that the preceding one hundred and thirty four (134) paragraphs are a true copy of the reasons for judgment of Judge Phipps.
Date: 9 August 2016
Key Legal Topics
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Family Law
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Injunction
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