BALSON & BLICK

[2018] FCCA 473

FEDERAL CIRCUIT COURT OF AUSTRALIA

BALSON & BLICK [2018] FCCA 473

Catchwords:
FAMILY LAW – Parenting – family violence – best interests of the child – sole parental responsibility – child live with the mother – no orders as to time spent with the father.

Legislation:

Family Law Act 1975, ss.60CA, 60CC, 61DA, 67Z

Applicant: MR BALSON

Respondent: MS BLICK

File Number: MLC 1832 of 2016

Judgment of: Judge Hartnett

Hearing date: 15 February 2018

Delivered at: Melbourne

Orders made on: 15 February 2018

Written Reasons delivered: 19 March 2018

REPRESENTATION

The Applicant: No appearance

Solicitor acting as Counsel for the Respondent: Mr Ngwenya

Solicitors for the Respondent: Norman & Co

Counsel for the Independent Children's Lawyer: Mr Tesoriero

Solicitors for the Independent Children's Lawyer: Danielle Webb Lawyer

THE COURT ORDERS, BY CONSENT OF THE MOTHER AND THE INDEPENDENT CHILDREN’S LAWYER, THAT:

1. All previous orders be discharged.

2. The mother have sole parental responsibility for the child of the relationship X born (omitted) 2010 (‘the child’).

3. The child live with the mother.

4. The order made 9 March 2016 appointing the Independent Children’s Lawyer be discharged.

5. The question of the father’s payment of the mother’s costs of the proceedings in the sum of approximately $7,000 but to be further quantified by the mother is reserved.

6. Otherwise all extant applications are dismissed and the matter is removed from the list of active cases.

IT IS NOTED that publication of this judgment under the pseudonym Balson & Blick is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 1832 of 2016

MR BALSON

Applicant

And

MS BLICK

Respondent

REASONS FOR JUDGMENT

Preliminary

1. These proceedings commenced upon the Applicant father filing an initiating application on 3 March 2016.  At the final hearing of the matter the father failed to attend the hearing, and so has failed to prosecute his application. In the father’s initiating application, he sought equal shared parental responsibility for the child of the relationship X born on (omitted) 2010 (‘the child’); that the child live with him and spend time and communicate with the mother as determined by the Court.

2. In response to the father’s application the mother filed a response dated 8 March 2016.  The father has been afforded procedural fairness in respect of the final orders as sought by the mother, they being as set out in the response document filed by the mother on 8 March 2016.

3. The orders which were made by the Court were orders sought by the mother and the Independent Children’s Lawyer. These reasons support the making of those orders.

4. The mother relies upon her affidavit of evidence sworn on 24 January 2018.  She also relies upon an affidavit of evidence sworn by Ms R on 23 January 2018, and an affidavit of evidence of Ms C sworn on 22 January 2018.  Additionally, the mother filed an outline of case on 14 February 2018.

5. The Independent Children’s Lawyer in these proceedings relies upon a family consultant’s s.11F of the Family Law Act 1975 (Cth) (‘the Act’) report of 25 May 2016; an affidavit of Ms M, Contact Supervisor from the Berry Street Contact Centre sworn 14 September 2017; a s.62G of the Act family report dated 11 December 2017 and prepared by family consultant, Ms D; and an affidavit of Dr D, consultant clinical psychologist sworn 8 February 2018. The Independent Children’s Lawyer filed an outline of case document on 13 February 2018.

6. The Court is satisfied that the presumption of equal shared parental responsibility as set out in s.61DA of the Act is rebutted on two grounds, those being that the Court is satisfied there are reasonable grounds to believe that the father of the child has engaged in both s.61DA(2)(a) abuse of the child; and family violence. The Court finds further that pursuant to s.61DA(4) of the Act, the evidence before the Court satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

7. The evidence before the Court in support of the Court’s findings in this regard is as set out below.

8. The Court determines further that the best interests of the child, that being the paramount consideration as set out in s.60CA of the Act, are served by the child residing with his mother. The matters considered by the Court in satisfaction of s.60CC of the Act are as set out below.

9. The Court notes in particular that in applying the primary considerations as set out in s.60CC(2) of the Act the Court gives, as it is required to pursuant to s.60CC(2A) of the Act, greater weight to the consideration set out in s.60CC(2)(b) of the Act which is:-

   “The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.”

10. Both the mother and the Independent Children’s Lawyer put before the Court that the child’s best interests are served by the making of the orders which the Court pronounced on 15 February 2018.

11. Statements of fact in these reasons are findings of fact on the balance of probabilities.

History

1. The Applicant father was born on (omitted) 1977.  He is now aged 40 years.  The Respondent mother was born on (omitted) 1980, and she is now aged 37 years.  She came to Australia from (country omitted) to study (course omitted) from (omitted) University in Melbourne.  She is a (country omitted) citizen. 

2. The mother arrived in Australia on a student visa, being a temporary visa. She has continued to have temporary visas in Australia to the present time, and in September 2017 her employer, (employer omitted) company, applied to the Department of Immigration and Border Protection to sponsor her under the Employer Nomination Scheme (sub-class 186).  That application is currently being processed.  The Respondent works for (employer omitted) in a full-time capacity as an (occupation omitted), and has so worked for (employer omitted) since (omitted) 2014.

3. The mother has no family or immediate support networks in Australia.  She has from time to time engaged private paid services to assist her in the care of the parties’ child, the subject of the proceedings. The mother has received no subsidised (by the government) care for the child, and given her immigration status is not entitled to any Centrelink benefits.  She is required to maintain private health cover, having no access to Medicare. She is also not entitled to legal aid assistance, and has funded these proceedings from the income earnt by her in her employment.

4. The mother has lived in Melbourne since her arrival in Australia.  She met the father approximately one year after arriving in Australia.

5. The parties commenced a relationship in 2008. This was a second relationship for the Applicant father, who has a daughter living in New South Wales.  The father, until the end of November 2014, lived in Sydney at his father’s house.  This enabled the father to have contact with the daughter he has with his ex-wife.  However, on 15 February 2017, a final apprehended violence order was made against the father. His daughter is an aggrieved family member. The order was made to operate for a period of two years.

6. From 2008 until March 2010, the parties had an on and off relationship.  It was a long distance relationship, and there were many challenging aspects to it.  In around (omitted) 2010, the mother fell pregnant with the child X. The father thereafter informed her that he no longer wanted to continue in the relationship. Rather he wished to pursue a committed relationship with his ex-wife.  Between around March 2010 and August/September 2010, the father made very minimal telephone contact with the mother.  When the mother was seven months pregnant, she travelled to Sydney to speak with the father about future arrangements for their child.  During that visit, the father advised the mother that he wished to start a (omitted) degree on a full-time basis. Therefore, during that period, he could only provide to the mother and child limited financial support.  He indicated to the mother that he did not wish to pursue the parties’ relationship. The mother returned to Melbourne, and thereafter the parties’ communication became strictly focused on the birth of their child X.

7. X was born on (omitted) 2010 and the father was present for his birth. The mother’s aunt also came to Australia from (country omitted) to assist the mother in her care of X. The father remained in Melbourne for around two weeks. He was, at the time, very angry with the mother.  Prior to the birth of the child and on (omitted) 2010, the father had helped the mother move into new rental accommodation.  He was annoyed about having to provide that assistance, and was verbally abusive toward the mother, calling her names including “fucking bitch” during the course of the day.  Toward the end of the day the parties became involved in a physical altercation with the father kneeing the mother in the stomach.  The mother called the police who attended at the house, and took the father away.  The father stayed at a hotel that night, and left for Sydney the following day. The father was angry with the mother for involving the police and remained so at the time of the birth.

8. In mid-2011 the father came to see X in Melbourne.  He stayed at the mother’s home for a two week visit.  Toward the end of that visit he became very angry, and broke four dining room chairs in front of the mother, lifting them and smashing them to the floor.  The mother was shocked by the father’s behaviour. X was asleep in the next room. 

9. From the time of X’s birth in (omitted) 2010 to the end of November 2014, the father lived in Sydney.  He visited the mother and child every now and then when he had semester breaks in his course.  He came to Melbourne approximately seven times for one to two weeks at a time. Initially he would stay at the house with the mother and child. As the parties’ relationship deteriorated he began to find accommodation elsewhere. During this period of time, and in July 2013, the father removed X from his day care centre without the knowledge or consent of the mother.  He retained the care of the child for two days, and failed to provide the child with the medication he was then taking. After two days the father returned the child to his day care centre, the child having a 40 degree temperature. The mother then took X to hospital for treatment. X was anxious and distraught. He became very clingy with his mother and would not let go of her. 

10. In around October 2013 the father again took X from his day care centre without telling the mother. The mother was concerned for X’s safety and went to the police. The police called the father and located where he and X were. 

11. During 2014 the mother and father had almost no contact, as it was the father’s final year of study.  However, he did come to Melbourne for a visit in July 2014, and another altercation ensued. This altercation is detailed both in the mother’s affidavit material, and that of Ms C, a (occupation omitted) of over 20 years professional experience, and friend of the mother. An incident occurred between the father and X in the food court at (omitted) Shopping Centre when the father screamed at X to return to the table and finish his food (X having left the table and commenced playing with his new toy).  When the child did not respond, the father:-

    “… picked him up by both his arms and slammed him down on a high counter-top his feet dangling off the ground while he continued to tell him off in a loud voice.  X was struggling to free his arms from the Father’s grip, and accidentally knocked the father in the face with his dragon toy. The father immediately slapped/hit X hard across the side of his face/cheek, then grabbed the dragon toy from X’s hand, and broke the toy to pieces right in front of X, and threw the pieces into the bin.  By this stage X was crying and distressed, staring at the bin, and repeatedly saying ‘My Toy, My Toy, My Toy’…”[1]

    [1] Affidavit of Ms C sworn 22 January 2018. 

12. Around 23 November 2014, the father again made contact with the mother. He requested that the parties live together; become a family unit; and thereby enable the father to be close to X.  The mother wanted X to have a close relationship with his father, and a male figure in his life. She was happy that the father would be in Melbourne and thereby have the ability to develop a closer bond with the child, and she hoped that she would obtain assistance from the father to care for the child. The mother’s evidence was that:-

    “Being a single mum up to this point without any family assistance was very difficult.  The Father promised that he would ‘make up for the last four years’ and would help me and relieve me of all the hardship I had gone through whilst he was studying full-time.  He promised to spend a lot of time with X and that he would rebuild what was lost due to his absence and decisions to pursue other options.”

13. Whilst the mother had her reservations about the relationship between the parties ultimately working, she was prepared to attempt to build the parties’ relationship and reunite X with his father.

14. At the end of November 2014 the father came to Melbourne. The parties remained cohabitating until February 2016 when the mother and child left the home permanently.  During this time the mother worked full-time and supported the father financially.  The father did not have a job and received some Centrelink payments. He became the main carer for X and undertook some of the domestic work in the home.  The parties, however, continued X’s enrolment at day care and the mother would drop X to the day care centre on her way to work.  The father would collect him in the afternoons.  The staff at the day care centre reported to the mother that X would scream and cry when the father would collect him. 

15. The father commenced to fight with the parties’ neighbours and became disrespectful and rude to X’s day care workers. The affidavit evidence of Ms R, a (occupation omitted) and neighbour of the mother prior to her departure from the home, described many details of aggression and violence initiated by the father. In one of the father’s visits to Melbourne in 2012, Ms R had observed through her window above the parties’ unit:-

    “...the father lift X by the clothes whilst taking him out of the car from his car seat.”

    She observed the father to be amused carrying X:-

    “...like a weight lift as he watched X dangle in the air, holding him only by the clothes.  X was distressed, crying and showing some form of discomfort.”

    On another occasion, as described in paragraph 9 of the affidavit evidence of Ms R, she heard the father:-

    “...yell and a lot of crashes and bangs.”

    Ms R later observed broken chairs that lay on the pavement outside the units in which she and the parties resided. 

16. In November 2015 Ms R called the police when she heard the mother’s distressed call through the corridors yelling out for someone to call the police. The father’s violent behaviours caused other neighbours to depart the units and in May 2016, Ms R also moved from her apartment upon discovering that the mother was no longer living there, and that the father was living alone. She was frightened of the father.

17. In January 2015 a serious incident occurred at X’s day care which resulted in the day care centre contacting the Department of Education and Early Childhood Development and the Department of Health and Human Services (‘DHHS’). That incident was the observation by some of the care staff in the day care centre, of the father grabbing X forcefully when he would pick him up. The day care centre staff asked X why he cried when his father picked him up and X responded to them “...that his father hurts him” and pointed to his genital area.  This raised a serious concern for the day care staff who then reported the matter as described above. 

18. An investigation by DHHS and Victoria Police ensued with the father being uncooperative and rude to police and child protection case workers. The mother, however, thought the situation was, in fact, a misunderstanding and spoke personally to the child protection case worker and Victoria Police to allay their concerns. After this incident the father demanded that the mother remove X from the day care centre he was then attending as the father no longer had a working relationship with the staff. From around March 2015 the father began to look after X full-time and on his own. 

19. In February 2015 the mother had taken on a course at the (omitted). She wanted to finish it quickly which meant that she attended the course full-time, which included weekends and after work hours. The father indicated to her that she should undertake the course and that he would support her.

20. In early May 2015 the father’s anger with X escalated. On one occasion the father grabbed X by the collar and lifted him off the ground to eye level causing X to become very distressed. The mother watched on in shock but was unable to do anything. As the father put X down, X came running to the mother crying. The mother’s evidence was that at this time she was very scared and intimidated by the father and his anger and was fearful for both herself and X. She determined that it was not a safe environment and that she needed to find a means by which to leave without telling the father.

21. On 4 May 2015 the police sought and obtained an interim intervention order against the father for the protection of both X and the mother. It precluded the father from coming within 200 metres of the home in which they were residing and precluded him from communicating with the mother in any way.  Despite this the father came back to the home and refused to leave. The mother was too scared to report the father’s return to the home to the police. Accordingly, the mother and child left the home and went and stayed with friends. They did not return to the house until after the hearing of the interim intervention order proceeding in June 2015. 

22. Following the making of the first interim intervention order, the mother enrolled X in a new day care centre near her workplace, and the father no longer cared for him. X was at the day care centre for four days a week. 

23. On 18 May 2015 the father contested the making of a final intervention order and the matter was adjourned to 29 June 2015. On 29 June 2015 a limited intervention order was made and the matter was further adjourned to 1 September 2015. Following the making of that intervention order, the mother and child returned to the home. The father was unhappy with the existence of the interim intervention order and put pressure on the mother to remove herself from it. On 1 September 2015 the proceedings were adjourned to December 2015. The father at the time had recommenced the full-time care of X. The mother was concerned about the child’s safety but acquiesced in the arrangement.

24. On 7 December 2015 the father challenged the interim intervention order and conditions. A final intervention order was made and the mother consented to having her name removed from the final intervention order, leaving only the child as the aggrieved person. 

25. Life deteriorated at the home. The mother was working full-time and studying seven days a week and the father was refusing to do any of the cleaning and chores around the home.  On 19 December 2015 the mother determined that she could no longer keep up her full-time work; maintain the home; and continue significant study.  She ceased her studies and has not resumed them.

26. At the end of December 2015 the parties took X to Sydney to visit the paternal grandfather.  On (omitted) 2015 it was X’s birthday.  In the morning X needed help to assemble his new toy train.  He became frustrated and threw the toy train at the father. It hit the back of the father’s head.  The father became very angry. He commenced to stomp on the box containing the toy train. The child became distraught, by then crying uncontrollably. The mother removed X from the house to calm him down and console him.  She bought him a new toy car to replace the train and went to the shopping centre to play on the trampolines and watch a movie. On 29 December 2015 the father broke X’s table in front of X and the mother.

1. In January 2016 the father told the mother it was his intention to separate X from his mother.  He became racially abusive toward the mother in front of the parties’ child and acted to exclude the mother from the life of the child.

2. On 16 February 2016 the mother packed her bags and left the home.  She did not tell the father she intended to leave.  Her intent was to:-

   “...break free from the father’s abuse, control and get X out of this abusive and emotionally damaging environment.”

3. Without the father’s knowledge, the mother removed the child from the (omitted) School where the father had enrolled him, and placed X in (omitted) Primary School. She organised her work around his school times so that she could more readily transport X to and from school. 

4. The father denigrated the mother to the child in the period in which he was the primary carer. The period of his cohabitation with the mother and child was one of conflict and of aggression, intimidation and violence on the part of the father towards the mother and child.  The mother said of the father:-

   “His emotions and moods are unpredictable and he is easy to anger.”

5. The mother is greatly concerned by the father’s expression of anger and his inability to emotionally regulate for the safety of the child.  The parties’ relationship is dysfunctional and it is impossible for the mother to work with the father on any rational basis as a consequence of the father’s behaviours. 

X’s health

1. Upon leaving the home the mother’s possessions and furniture were left behind with the father. The mother had to re-establish another home for X and herself, including paying another bond, buying furniture and whitegoods. The father did not return to the mother any of her furniture, possessions or whitegoods. He insisted that the bond for the mother’s prior rental property be returned to him in full despite the mother paying such bond.  He refused to have the bond released to the mother and to the present time the bond remains with the relevant Department of Housing. 

2. The mother has continued to be the only source of financial support for X without any assistance from the father or Government benefits.  X is now in grade 2 at (omitted) Primary School and undertakes (hobbies omitted) classes as extracurricular activities at the expense of the mother.  He has many friends from school and is well settled.

3. X had been tested at 18 months and as a result of such testing the mother was advised that he fell within the spectrum of autism spectrum disorder. Between January 2011 and July 2016 X and the mother were part of a study project called “Early Years Education Research Project” which was carried out by the Children’s Protection Society in conjunction with the University of Melbourne.

4. In June 2012 X was referred by a paediatrician, Dr C, to a childhood early intervention service called (omitted).  X commenced the program in February 2013 with the purpose of the program to assist him predominantly with his speech. X’s participation in the program significantly improved his development.

5. As X progressed through these programs and various follow-up assessments, it became evident that X’s development had significantly improved and many of the symptoms associated with autism spectrum disorder were no longer evident.  In fact, he did not meet the criteria to diagnose him with autism spectrum disorder.  X’s attendance at (omitted) has also assisted his development with the school addressing issues relating to his vocabulary, speech and confidence.  X is now reading books fluently and performing in line with his peers and at the national standard for a child of his age and schooling level. 

Proceedings

1. Following the father’s institution of proceedings, the Court made orders on 9 March 2016 which provided for time spent with between the father and X. The father’s response to those orders was as set out in a text message to the mother on 10 March 2016 which, relevantly, was as follows:-

   “Either X spends time with me alone or not at all.  There will be no supervised contact, no “transition”. I told you that very clearly last time. If you aren’t going to facilitate that right now, please don’t contact me.”

   The mother made offers for the father to see X, but the father did not respond to those overtures of the mother. 

2. On 14 June 2016 the parties by consent agreed that contact with the father would be supervised by Berry Street (omitted), and the Court made interim orders to that effect. Such time spent with commenced on 27 May 2017, and the father and X attended eight supervised sessions at Berry Street.  The progress of those sessions was as described in the affidavit evidence of Ms M, sworn 14 September 2017, and is before the Court in these proceedings. No further orders for contact between the father and X have been made since the making of those interim orders of 14 June 2016.  Apart from the eight supervised sessions at Berry Street, X and his father have had no other time spent with.

The family report

1. The family consultant, Ms D, interviewed the mother and child; attempted to interview the father; and made an observation of the child with the mother in December 2017. Prior to that time the family consultant had obtained information from the documents on the Court file, as set out on page 3 of her family report, which included the affidavit of Ms M of Berry Street Children’s Contact Service filed on 21 September 2017. 

2. Additionally, Ms D had before her the DHHS s.67Z of the Act response of 11 April 2016; her earlier child inclusive conference memorandum to the Court of May 2016; and the psychological assessment of the father completed by Dr D dated 10 April 2017. She also reviewed the New South Wales Family and Community Services and the Victorian Department of Health and Human Services’ records. Ms D said of the father, in terms of the limitations on the assessment processes carried out by her:-

   “Mr Balson attended the registry and on the Family consultant attempting to introduce herself Mr Balson became confrontational in tone, advising the writer that he remembered her and then continued to present as verbally aggressive before appearing to rapidly swing his elbow toward the Family Consultants’ face, although no physical contact was made.  He was asked to take a seat and advised that security would be notified if his behaviour continued. Mr Balson responded with shouting “you have mental problems” as he took a seat. Mr Balson subsequently left the registry independently and no further attempt to interview was made by the writer on that occasion.”

3. Ms D noted the Victoria Police subpoenaed material, read by her, which revealed that the mother:-

   “had sought an intervention order in May 2015, due to an incident whereby [the mother] alleged that [the father] threatened to tip a bowl of hot porridge over X because he had coughed without covering his mouth and then flicked porridge in X’s face.  [The mother] then threw a grapefruit at [the father], which he reportedly flicked away but the second grapefruit hit him on the nose in the context of [the mother] telling [the father] that this is how it feels for X to have something thrown in his face. The incident was reported to DHHS and a two year intervention order was granted in relation to X and subsequently [the mother] sought to vary the order to have her name included.”

4. The family consultant noted that the evidence of Ms M of Berry Street Children’s Contact Service, raised a number of concerns in relation to the father’s level of aggression directed to the staff and his capacity to regulate his emotional response, in the presence of X, particularly in relation to the mother. She also noted Dr D’s psychological assessment of the father, which raised concerns regarding the father’s conduct at that assessment and the “level of anger and persecutory rage displayed” by the father.

5. The recommendations of Ms D were for X to remain in the primary care of his mother and that, should the Court consider the father spending time with X, consideration for this to be professionally supervised.

Dr D

1. The evidence of Dr D is unchallenged and very concerning in respect of the father, who is essentially described as an aggressive person with a violent disposition. There is, indeed, before the Court extensive documentary evidence of complainants seeking restraining orders from the courts in relation to the father’s violent temper and aggression.  There is overwhelming evidence before the Court that the father has engaged in domestic and other violence.  The Berry Street Children’s Contact Centre is not willing to extend their services to the father because of the problems they encountered in working with him.

2. Dr D noted that the father’s:-

   “affect appeared to be both guarded and simmering with rage, although he gradually warmed to a very limited degree during the course of the interview.” 

3. Dr D noted further that the father characterised his concern for X by demonising the mother:- 

   “Ms Blick is a very poor excuse for a mother.  I am applying for custody.  She harms and neglects X. 

   Calling her by her name humanizes her.  The person’s behaviour has been so calculated and malicious for a period of almost 9 years.  For that period, the person has caused so much anguish by her behaviour to my son, and the way I wanted him brought up.  I have been shut out of his life.

   …

   She is evil and a monster.

   …

   I have no doubt that you will write what the Family Court wants to hear – an angry Neanderthal, a clichéd image of me.  I have no doubt that you will do that.  The Court is completely partial to the woman, without the reasons for my frustration.  My son has been taken out of my care and out of the school that I chose for him, and all my influence on him has been taken away.  Every bit of her affidavit, 95% has been a lie. You’ll play into their hands.  It’s completely biased for the woman.

   They don’t listen to me, and it will be used to portray me as the angry, bone-headed, white male.”

4. Dr D observed that the father’s wariness and suspicion appeared to be outside the normal range.  His position was:

   “fundamentally persecutory, appearing to view himself as victimized by the world and particularly the mother.”

5. Dr D went on to observe:-

   “[the father’s] refusal to disclose person details, his view of himself as likely victimized by the Court, and his generalized suspicion and resentment are very troubling, and likely to leave him suffering to a very concerning degree.

   More specifically, and more troubling, is my very considerable concern that [the father] characterises the mother as a monster, and manipulative, and evil.  Notwithstanding conflicts between them, his view of her is effectively as non-human, and having no positive parenting (or personal) attributes.

   His views and his rage appear at the extreme end, and he shows very limited capacity for empathy or ambivalence.  This limitation must place very substantial limits on his capacity to deal with the normal ambivalence of relationships … and an inability to collaborate even at the most minimal level with the mother, as illustrated by his refusal to even call her by name instead of as ‘the person’.

   What this means is that most likely differential diagnoses (i.e. needing to be clinically ruled out) are borderline personality disorder and narcissistic personality disorder. This is not a formal diagnosis of him in either of these categories, but he displays aspects of these personality disorders, and they cannot be excluded within a single interview.

   Equally, it is not possible to exclude a paranoid disorder, in which he views himself as under attack and unable to feel safe in the world.  He displayed no evidence of delusional thinking as such, but the quality of persecutory thinking was consistent with paranoid functioning.

   I have no reason to doubt [the father’s] attachment to his son, and the enormity of his frustration at being denied contact for such a lengthy period is both credible and understandable.

   At the same time, he displays no interest in the role he may have played in contributing to the current situation, and no insight into his own potential deficits of relatedness that could potentially have a significant impact upon his parenting skills with his son.

   …

   I am concerned at the level of anger and persecutory rage displayed by [the father] and I am troubled at the possibility that he may experience litigation as he describes:  as ‘an extension of the humiliation served on me by [the mother]’.  In that regard, his response to litigation must be viewed from a guarded perspective.”

   (emphasis in original)

Conclusion

1. Without a clear understanding of the father’s current mental health, treatment, diagnosis and prognosis, it is not possible for the Court to determine, in a positive way, that X will be both physically and psychologically safe in his father’s care.  The affidavit evidence before the Court indicates a long pattern of aggressive behaviour and distrust of others, as submitted by the Independent Children’s Lawyer.

2. X is only seven years of age and unable to protect himself.  He has a close and loving relationship with his mother and appears somewhat frightened by his father.  He has not seen his father since September 2017.  The father has had difficulty in providing for X’s emotional needs and also makes no, or almost no, provision for his financial needs. X needs to be protected from his father’s emotional dysregulation and anger issues at the present time.

3. Ultimately, the mother did not seek any orders as to the child spending time with the father.  The Court was reluctant to make an order that the child spend no time with his father as a final order, in circumstances where the proceedings are undefended and where, into the future, subject to the father addressing a number of concerns raised in the evidence before the Court, the child may have a meaningful relationship with his father, which must commence with supervision and the father addressing his mental health issues.  The father currently cannot focus on X’s needs and is totally overwhelmed by his own.

4. It is however important for X and for the parties that these proceedings be concluded, and that further litigation not be entered into between the parties. The mother has no ability to sustain ongoing litigation costs. The father has abandoned his application. In these proceedings, the mother has been required to undergo significant financial hardship to meet the father’s application.  The mother sought that the Court make a costs order. Whilst the Court, in the exercise of its discretion, could make a costs order, the Court will reserve that decision in the event that there is any further litigation between that parties. It shall be considered then at the discretion of the presiding judge.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 19 March 2018