Bamber and Banton
[2016] FCCA 1860
•22 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAMBER & BANTON | [2016] FCCA 1860 |
| Catchwords: FAMILY LAW – Parenting – child with special needs – father with previous violent behaviour – whether father is an unacceptable risk to the child – whether the mother’s fear of the father means her parenting capacity would be compromised if the father spends time with the child – whether the mother should be permitted to change the child’s name. |
| Legislation: Family Law Act 1975, ss.60B(1), 60B(2), 60CA, 60CC, 61C, 61DA |
| Blinko & Blinko (2015) CAFC 146 Mazorski v Albright (2008) 37 FLR 518 Tait & Dinsmore (2007) FamCA 1383 |
| Applicant: | MR BAMBER |
| First Respondent: | MS BANTON |
| File Number: | AYC 94 of 2014 |
| Judgment of: | Judge Small |
| Hearing dates: | 22 & 24 July 2015, 14 August 2015, 12 November 2015 |
| Date of Last Submission: | 12 November 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 22 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Smallwood |
| Solicitors for the Applicant: | Lampe Family Lawyers |
| Counsel for the Respondent: | Ms Agresta |
| Solicitors for the Respondents: | Otis Legal |
| Counsel for the Independent Children's Lawyer: | Ms McCreadie |
| Solicitors for the Independent Children's Lawyer: | Bowlen Dunstan & Associates |
ORDERS
This matter is adjourned to 29 May 2017 at 9:45 a.m. in the Duty List for Directions.
All previous parenting orders in relation to the child X born (omitted) 2009 (“the child”) are hereby discharged.
FINAL ORDERS
The mother shall have sole parental responsibility for the child.
The child shall live with the mother.
UNTIL FURTHER ORDER
The father shall spend no time with the child until supervised time is arranged at the (omitted) Children's Contact Centre (“the contact centre”).
The parties shall forthwith do any such further acts and things and sign all such documents as might be necessary to enrol in the contact centre so that the father may spend supervised time with the child and they shall comply with all directions of the contact centre in terms of available times and dates.
The father shall spend time and communicate with the child at the contact centre on such days and for such periods of time as the contact centre is able to provide but no more than once per week.
The father shall be at liberty to send cards, photographs, letters and gifts to the child at an address nominated by the mother no more than six times per year, including for Christmas and the child’s birthday.
The mother shall be at liberty to have a third party deliver the child to and collect him from the contact centre for changeover.
Should there come a time when the contact centre is no longer able to provide supervised time between the father and the child, the father shall engage the services of a professional supervisor at his own expense to supervise his time with the child until the adjourned hearing date, and such time shall be, as far as is possible, at the same times as that provided by the contact centre.
Changeover for time spent pursuant to paragraph 10 hereof shall take place at the contact centre on such terms and conditions as the contact centre nominates.
For twenty-four (24) hours immediately prior to the commencement of any time spent with the child, and during all such time spent, the father is hereby restrained by injunction from ingesting, consuming or using any legal or illegal drug or substance, or alcohol, save and except for:
(a)any legal medication prescribed for him by a registered medical practitioner, and taken or used by him strictly in accordance with such prescription; and
(b)any over-the-counter medication or pharmaceutical substance ordinarily sold in major supermarkets (which does not contain codeine), and taken or used by him strictly in accordance with the directions appearing on such medication or pharmaceutical substance.
The contact centre or professional supervisor shall be at liberty to require the father to undergo a breathalyser test on a properly calibrated device provided by him at the beginning and/or conclusion of any time the child spends with the father, and:
(a)If he provides a positive reading for alcohol at the commencement of time spent, the contact centre or professional supervisor shall be at liberty to cancel that period of time spent between the child and the father.
(b)If he provides a positive reading for alcohol at the conclusion of time, the contact centre or professional supervisor shall be at liberty to cancel the next scheduled period of time spent.
The parties, their servants and agents are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other, or any member of the other’s household or family,
and
(b)discussing these proceedings,
in the presence or hearing of the child and from permitting any other person to do so.
The mother shall immediately authorise the school in which the child is enrolled to provide to the father at his expense all school reports, photographs, newsletters, notices and the like that are usually provided to parents.
The father is hereby restrained by injunction from attempting to contact the mother or the child save in accordance with these orders, including by attending at the child’s school or at any address where he might send the cards, letters and gifts pursuant to paragraph 8 hereof.
The parties and the child, together with any members of their respective households as deemed appropriate by Dr T, shall attend upon Dr T no later than 15 April 2017 for the purposes of a private updated family report and the parties shall be equally responsible for the cost of that report.
The Independent Children’s Lawyer shall ensure that a report from the contact centre and the updated family report of Dr T and, if necessary, the report from the private supervisor engaged by the father are prepared, annexed to affidavits sworn by their authors and filed with the court no less than seven days prior to the adjourned hearing date.
IT IS NOTED that publication of this judgment under the pseudonym Bamber & Banton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
AYC 94 of 2014
| MR BAMBER |
Applicant
And
| MS BANTON |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern parenting arrangements for the child X born (omitted) 2009 (“the child” or “X”).
The parties are Mr Bamber born (omitted) 1984 (“the father” or “Mr Bamber”) and Ms Banton born (omitted) 1988 (“the mother” or “Ms Banton”).
It is not in dispute between the parties that X has special needs in that he has been diagnosed with a possible Autism Spectrum Disorder (“ASD”), Global Developmental Delay (“GDD”) and Attention Deficit Hyperactivity Disorder (“ADHD”).
It is also agreed between the parties that on 23 October 2011 Mr Bamber attended at Ms Banton’s home in an intoxicated and angry state, dived through Ms Banton’s closed bedroom window and assaulted her. He then took a knife from the kitchen and stabbed himself in the stomach as Ms Banton fled the premises. Mr Bamber was charged with assault of Ms Banton and also of a neighbour who had sought to assist him when he left the house. He was imprisoned as a result of those attacks, which occurred while he was on parole for other non-related violent offences.
The essential questions to be answered in these proceedings might be stated as follows:
A.Whether the parties should have shared parental responsibility for X.
B.Whether Mr Bamber currently poses an unacceptable risk to X.
C.If Mr Bamber does not pose an unacceptable risk, whether the physical and emotional trauma suffered by Ms Banton on the night of 23 October 2011 and in the years following, including to the time of trial, are significant enough that the court should make an order that Mr Bamber spend no time with X.
D.Whether Ms Banton ought to be permitted to change X’s surname from “Bamber” to “Banton”.
Background
The parties began their relationship in (omitted) 2008 and began living together in that same year.
On 19 March 2009 the father was incarcerated on a charge of Recklessly Causing Injury with a 3 year sentence and a non-parole period of 15 months. I note that that sentence is significant.
X, their only child together, was born on (omitted) 2009.
On 11 June 2010 the father was released from prison and the parties resumed their relationship. At that time Mr Bamber was to be on parole until 11 March 2012.
The parties separated finally in about May 2011 and agreed to an arrangement where X would spend time with the father, including overnight on some weekends.
On 23 October 2011, the father attended at the mother’s home in an intoxicated state and the violent incident which will be described in more detail later in these Reasons took place. The police subsequently charged the father and his parole was cancelled with Mr Bamber being returned to prison.
On 8 May 2012 the father was sentenced to a further 6 months jail relating to the assault which occurred on 23 October 2011. He was released from prison in November 2012.
On 11 October 2012 the father was found guilty of driving under the influence and driving in a dangerous manner on 23 October 2011, and his license was cancelled for a period of 4 years.
Mr Bamber has not come to the attention of the police for violent offences since his release although he has been charged and convicted twice as result of driving while unlicensed.
In December 2011 an Intervention Order was made in favour of the mother for 12 months, that intervention Order being extended on 27 November 2013 for twenty years. That is, the Intervention Order will not expire until November 2033.
The mother repartnered in (omitted) 2014 and lives with her partner Mr E (“Mr E”) and X in the (omitted) area. She is primarily engaged in home duties although she and her brother manage and operate a (omitted) business left to them by their father.
Mr Bamber has repartnered with Ms C (“Ms C”) and lives in Melbourne’s (omitted) suburbs with his mother and sister. He is engaged in full-time employment as an (occupation omitted) and states an intention to buy a house with Ms C and to live with and marry her.
Procedural History
On 25 February 2014, the father filed an Initiating Application and Affidavit in the Federal Circuit Court seeking orders that he spend time with X.
On 9 May 2014 Interim Orders were made by Judge Harman in the Albury Registry of this Court issuing a Commonwealth Information Order pursuant to s.67N of the Family Law Act 1975 in relation to the mother and child.
In July 2014 the father was charged with driving whilst unlicensed.
On 14 August 2014 Interim orders were made by Judge Harman in the Albury Registry of this Court transferring the matter to the Melbourne Registry.
On 9 September 2014 the mother filed a Response and Affidavit seeking orders that X spend no time with his father.
On 10 September 2014 I made interim orders including an order for the appointment of an Independent Children’s Lawyer, for the father to attend upon Dr E (“Dr E”) for a psychiatric assessment and other various procedural orders.
In November 2014, the father was again charged with driving whilst unlicensed.
On 25 November 2014 the father attended upon Dr E for a psychiatric assessment. Dr E’s report, dated 28 November 2014, was annexed to an Affidavit sworn on 11 February 2015 and filed on 17 February 2015.
The father attended Relationships Australia in Sunshine in December 2014 in order to complete a Post-Separation Parenting Course.
On 3 February 2015 I made further Interim orders for the preparation of a Family Report, for the father to undertake supervised drug screens and various other procedural orders including an order that the matter be set down for trial.
On 11 June 2015 a Family Report was prepared by Dr T (“Dr T”).
On 8 July 2015 Dr S, Ms Banton’s treating psychologist (“Dr S”), prepared a counselling report for the mother. That report was later annexed to an Affidavit sworn by Dr S on 20 July 2015 and filed 22 July 2015.
The trial began on 22 July 2015 and ran on that day, 28 July, and 14 August. Witnesses were the father, Ms C, the father’s sister Ms E (“Ms E”), the mother, Dr S, Dr E and Dr T, all of whom underwent cross-examination. Dr S appeared by video link from the Albury Registry of the Court and Dr E appeared by telephone.
At the end of the third day I adjourned the matter for oral submissions on 12 November 2015. Once submissions had been made by all parties’ counsel on that day, I reserved my judgment.
Issues and Evidence
A. Whether the parties should have shared parental responsibility for X
Mr Bamber seeks an order that he and Ms Banton share parental responsibility for X.
Ms Banton seeks an order that parental responsibility rest solely with her.
The law relating to parental responsibility for the children of separated parents is found in Division 2 of Part VII of the Family Law Act 1975 (“the Act”), and more particularly in ss.61C and 61DA.
Section 61C(1) and (2) state that each of the parents of a child who has not reached the age of 18 years has parental responsibility for the child, whether or not the parents are living together, are married, or have separated.
In Note 1 attached to s.61C(1), the Act makes clear that the above statement simply states the legal position that exists unless and until an order to the contrary is made by the court.
Section 61 DA states as follows:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parents family (or that other person’s family); or
(b) family violence.
Subsection 4 of s.61DA states that the presumption may be rebutted by evidence that 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.
As already stated, it is not in dispute that Mr Bamber engaged in serious physical and emotional family violence against Ms Banton, at very least on 23 October 2011, but also during the relationship and immediately after separation.
Therefore the presumption does not apply in this case by operation of s.61DA(2)(b).
The parties in this matter do not speak to each other in the ordinary course of events. Ms Banton, as will soon be seen, has given evidence of such a fear of Mr Bamber that she can barely stand to be in the same room as him, even four years after the assault upon her that sent Mr Bamber back to prison.
Ms Banton has cared for X, and made decisions about his care, welfare and development for his whole life.
X has considerable special needs and may continue to need care throughout his life.
There is no suggestion that Mr Bamber will ever have the primary care of X and it is by no means certain whether he will ever spend time with him outside a supervised environment.
In all of those circumstances, I cannot find that it is in X’s best interests for his parents to share parental responsibility for him and I will make an order that Ms Banton have sole parental responsibility for him.
B. Whether Mr Bamber currently poses an unacceptable risk to X
Mr Bamber’s case is that he acknowledges and accepts that his past behaviour up to 23 October 2011 involved illegal drugs, alcohol, violence and criminal offending.
It is his evidence that since that date, he has not consumed alcohol to excess, nor taken illegal drugs, nor been involved in any illegal activity. He says he is in a stable relationship, that he is in full-time employment and that he now poses no risk to anyone.
The mother’s case that she does not believe that Mr Bamber has reformed and that even if he has, she is fearful that he will relapse into his habitual violent and criminal ways.
The father’s evidence
The father’s evidence is found in his two affidavits sworn 10 February and filed 5 May 2014 (“his initial affidavit”) and that sworn 15 and filed 16 April 2015 (“his trial affidavit”), in his Outline of Case Document filed 20 July 2015, and in his oral evidence given at trial.
Ms Bamber and Ms C also filed Affidavits in support of Mr Bamber.
Throughout his evidence, both in written and oral form, Mr Bamber was firm in his assertion that he has not used illicit drugs since 23 October 2011, and that he drinks alcohol only occasionally in social circumstances.
Apart from two convictions in 2014 for driving while unlicensed, there is no evidence before the court that Mr Bamber’s life has been anything other than law-abiding and drug free since that date.
He has been gainfully employed since shortly after he was released from prison in November 2012 and at the time of trial he had been in a new relationship for approximately 12 months.
Nevertheless, Mr Bamber acknowledged at trial that it would be difficult for him to prove to Ms Banton that he had indeed changed.
In his affidavit material, Mr Bamber is candid about his previous drug use and his use of emotional and verbal violence against Ms Banton and others, although initially he appeared to somewhat minimise this behaviour.
For instance, in his initial affidavit, Mr Bamber’s description of the events of 23 October 2011 says only this about the assault on Ms Banton:
16. I left X at my friend’s home and drove back to (omitted) to Ms Banton’s home. As soon as I arrived at Ms Banton’s home I jumped through the window. Ms Banton was standing behind the window at this time but then she ran out of the house and down the street.
In his trial affidavit Mr Bamber answers some of the evidence contained in Ms Banton’s initial affidavit sworn 9 September 2014. However, all he says in response to her description of the events of 23 October 2011 is the following:
15. […] f) […] I did not strike Ms Banton in the face causing her nose to bleed. Ms Banton’s nose began bleeding as a result of a piece of glass that hit her from the broken window.
As will be seen later, his written evidence in relation to those events is put in extremely benign terms.
At trial, Mr Bamber agreed with counsel for Ms Banton that he had had a long history of offending before 23 October 2011, including four previous court appearances for recklessly causing injury or recklessly causing serious injury. It was as a result of an assault where the victim suffered a brain injury in 2007 that he was sentenced to prison in 2009.
He also agreed that he had consumed at least three or four drinks at a wedding in (omitted) 2013 when he was assaulted by another wedding guest. He did not retaliate and it was Mr Bamber’s evidence that the assault upon him was a case of mistaken identity.
He also stated that he had drunk six or eight drinks at his 30th birthday party in 2014, but said that he did not feel at risk on that occasion because he was surrounded by family and friends who had been personally invited. There is certainly no evidence that anything untoward took place at that event.
Mr Bamber was not prepared to say that he would give up drinking entirely, saying that it was a normal social activity but he did concede that if uncontrolled, alcohol consumption could be a problem for him based on his past history.
While counsel for the mother persistently suggested to Mr Bamber that he did not take responsibility for his antisocial behaviour and blamed others for his actions, while under cross-examination he did not appear to do that, at least in relation to his most egregious behaviour. For instance in relation to the incident in 2007, Mr Bamber said clearly “What I did was wrong.” I note that he had also taken responsibility for his behaviour on 23 October 2011 to both Dr E and Dr T.
Later in her cross examination, counsel for the mother asked Mr Bamber about his two convictions for driving while disqualified in 2014.
First counsel elicited from him that the two occasions on which he had been caught were not the only ones when he had driven and that he had driven to work whenever he had been unable to arrange a lift. Counsel then suggested to him that his evidence that he had become a law-abiding citizen was impeached by those convictions and when he said that he had thought that getting to work was more important than complying with the disqualification, counsel used that as another example of him not taking responsibility for his offending behaviour.
While driving while disqualified is usually seen as a “traffic offence”, it is nevertheless a breach of the law and it may indicate an attitude on Mr Bamber’s part that he may pick and choose whether he abides by court orders. If he brings that attitude to this court he will get very short shrift indeed.
It was also put to Mr Bamber that separation from a partner was a particularly vulnerable time for him. Evidence was adduced that he had threatened suicide in that context and had driven his car into a tree after he separated from his previous partner. When that evidence was added to his evidence of what had occurred after his separation from Ms Banton, it was put to him that if he were to separate from his current partner, he might again become vulnerable to irrational and violent behaviour. Mr Bamber rejected that proposition, saying that his vulnerability in the previous circumstances had been exacerbated by his use of drugs and alcohol.
It is Mr Bamber’s clear evidence that the consequences he faced as a result of the events of 23 October 2011, which included the cancellation of his parole, a further six-month prison sentence and the four-year suspension of his license, together with the cessation of his relationship with his son, provided the impetus for him to give up taking illicit drugs, to drastically reduce his alcohol intake and to turn his life around so that, he says, he does not now pose a risk to Ms Banton, X or anyone else.
Mr Bamber conceded under cross-examination that he had said very similar things to the County Court at his sentencing hearing for previous assault charges in March 2009. That is, he had told the court then that he was no longer taking drugs (which he now concedes was not true), that he was in a stable relationship with Ms Banton and that he had steady employment.
Much was made of that fact and of the trial judge’s sentencing remarks at the time, although I note that at that time, the period of stability which Mr Bamber relied on was about six months, whereas in the current proceedings he says he has been drug free and stable for about four years.
Under cross-examination by Counsel for the Independent Children’s Lawyer, Mr Bamber stated that, were the court to make orders that he spend time with X, he would be prepared to purchase and maintain a personal breathalyser so that he could show that he was alcohol free prior to each time he spent with X.
Counsel for the Independent Children’s Lawyer then asked Mr Bamber about his knowledge of X’s special needs.
He was not aware of Amaze, which provides support services for families of people on the Autism Spectrum under the auspices of Autism Victoria but said that he would be willing to engage with that organisation at his own expense in order to learn more about X’s needs.
Under further questioning, Mr Bamber said that he had not thought of seeking counselling after the breakdown of his relationship with his previous partner but agreed that it might have been beneficial for him to have done so.
I note that he had said in previous evidence that he had undergone four months of weekly counselling as part of his parole conditions in 2013.
When asked, he said that he would “like to think that” he would seek counselling in future if confronted by similar circumstances.
Mr Bamber was able to articulate some strategies he would use in those circumstances.
When asked if he understood that there would be severe consequences in terms of any time he might spend with X if he were to relapse into the abuse of drugs and alcohol, Mr Bamber made the rather insightful comment that “there would be more than consequences just for that”.
In re-examination, Mr Bamber’s counsel elicited evidence that as part of his parole conditions, Mr Bamber was required to undergo random drug screens and that he had not returned a positive screen since 23 October 2011 and she tendered the results of nine such screens from the period February to July 2015.
Counsel also tendered two file notes from Mr Bamber’s parole file: one dated 27 March 2013 and the other dated 24 April 2013.
The first of those file notes refers to Mr Bamber having indicated that he had been drinking and was suffering from a hangover, although he had chosen not to use drugs on that occasion although they had been available. The file note reports that Mr Bamber had felt good about himself for having abstained and that he did not have any desire to use drugs.
The second file note describes Mr Bamber’s experience of being assaulted at the wedding in (omitted) 2013 thus:
Mr Bamber advised that he automatically swang (sic) around and was going to hit the male however had a flash of what he would loose (sic) if he did so. Mr Bamber was able to state that he would loose (sic) his freedom and potentially could have killed the other male. Mr Bamber advised that the bride also pulled him away before the situation escalated. The author discussed what would have happened if he was not pulled away from the situation and what will happen in the future if someone is not there to do so. Mr Bamber advised that he hopes he can maintain his violent reaction (sic) and remove himself from the volatile situation immediately by walking away.
Mr Bamber advised of no issues concerning violence or intent. He states that this behaviour is a thing of the past and he is wanting to focus forward. Mr Bamber advised that he is aware that his violent behaviour is directly associated with drugs and alcohol therefore since he has ceased drug use, this risk has reduced. Mr Bamber advised that he consumed some alcohol at the wedding however since the incident above, he stopped and focused on remaining abstinent for the remainder of the night. Mr Bamber advised no issues concerning illicit drug use.
In her Affidavit sworn 13 and filed 16 April 2015, Mr Bamber’s partner Ms C states clearly that she is aware of Mr Bamber’s criminal past and was shocked by his disclosure of it, although she says she does not recognise the man who committed those crimes in the man she knows now.
She deposes that Mr Bamber has never been violent or abusive toward her, that she has never witnessed him consuming any form of illicit substance and that she and he drink alcohol only on special occasions.
Ms C says that she has witnessed him taking care of a friend’s young children appropriately and that she believes that he possesses appropriate parenting skills.
At trial Ms C was forthright in her evidence that she would not stand for behaviour such as Mr Bamber displayed in his relationship with Ms Banton.
She was adamant that she had no fear of Mr Bamber despite being aware of his previous behaviour and particularly of his having driven into a tree when he separated from his previous partner and of the events of 23 October 2011.
In answer to a suggestion from counsel for the mother that her relationship with Mr Bamber had not undergone the stresses and strains that might lead to him relapsing into the use of drugs alcohol and violence. Ms C said the following:
Well, look, I’m not sure that it’s exactly what you’re asking me, but there has been stress on our relationship. This – going through all of this – what Jay has been going through has had an effect on our relationship, of course, because he is a bit upset. So that has caused stress. I understand that financially it has been, you know, a bit of a struggle as well, to go through all this. So that has also added stress to our relationship. And, you know, we have – you know, we are trying to make plans together, and do things together, so it’s not like we’re just dating and catching up and not having any serious discussions about things. So yes, there has been stress in our relationship.
She impressed as a strong-minded and insightful young woman and I accept her evidence insofar as it relates to Mr Bamber’s behaviour in their relationship.
Mr Bamber’s sister, Ms E, sets out her evidence in relation to her brother’s current life as follows in her affidavit sworn 15 and filed 16 April 2015:
14. I recognise that Mr Bamber is a changed person. I have seen him completely turn his life around and he is now a mature and focused young man. He is working hard and he has been able to draw on his own strength and own personal struggles to get to where he is today. Mr Bamber did have fears in the past but I can see that he has overcome his fears and he is a focused and determined young man who simply wants to be reintroduced and be part of his son’s life.
Under cross-examination at trial Ms Bamber said that while her brother was important to her she would not say that she “put him first”.
It was put to Ms Bamber that after Ms Banton made a police statement about the events of 23 October 2011, she had sent a text to Ms Banton asking whether she really wanted to have Mr Bamber charged and asking her to withdraw that statement.
Ms Bamber stated she did not recall that text and did not believe she had sent it.
When it was put to her that she had approached Ms Banton and told her she did not have to attend the court to prosecute her intervention order application, Ms Bamber said the following:
That wouldn’t have been coming from a spiteful angle. I do remember saying that I don’t believe she needed to be present, because the court can happen with or without her. That was coming from an angle of support – saying that it was too emotional for her, maybe she didn’t have to go.
When told that Ms Banton had been advised by the police that it was necessary for her to attend, Ms Bamber said that she had not realised the police had told her that she had to attend and that she, Ms Bamber, had thought it would be an option for Ms Banton.
She then said she did not recall whether she had been present at the court herself at the intervention order hearing.
Ms Bamber, who I note lives with Mr Bamber on a day-to-day basis, said that her brother did not use drugs and drank only “a social glass of wine”. She said she had not seen him under the influence of alcohol or known of any occasion where he had been drunk or had too much to drink since his release from prison in 2012.
She described his driving while disqualified as “foolish” but said she did not recall having any conversations with him about those convictions, although it was her understanding that he had only driven on the two occasions when he had been apprehended.
In response to persistent questioning by counsel for the Independent Children's Lawyer Ms Bamber acknowledged that if her brother were to be spending time with X and he relapsed into drug or alcohol abuse, Ms Banton would have a right to know, although she said that she expected that knowledge to be provided “through a legal way” and not by her.
However, Ms Bamber expressed some empathy with Ms Banton in relation to the events of 23 October 2011, saying that it would have been “extremely traumatic” for her, and that she did not believe that Ms Banton should just “get over it”. Indeed she said:
I believe that she has all entitlement to seek all supports that she needs to be able to work through any trauma that she might have endured.
The mother’s evidence
The mother filed two affidavits in these proceedings, the first on 9 September 2014 (“her first affidavit “), and the second on 15 May 2015 (“her trial affidavit”). She also gave evidence at trial and was subject to cross-examination.
The mother’s case, succinctly put, is that she has no confidence in the father’s assertions that he is a reformed man, that lack of confidence being based on his behaviour during and subsequent to her relationship with him.
In her first affidavit, Ms Banton describes a relationship in which Mr Bamber was a controlling and abusive figure who “sees violence is a normal part of his life”.
She provides multiple graphic examples, a sample of which include Mr Bamber threatening self harm and suicide, punching himself in the face, ripping his computer monitor out of the wall and smashing it, punching holes in walls and doors, throwing food across the room, throwing a small table at his dog causing it to bleed, physically pushing her out of bed, verbally abusing and denigrating her both in public and private, calling her offensive names and screaming “you wanna see angry? I’ll show you angry!”.
Ms Banton describes Mr Bamber as “a controlling and aggressive person, with serious anger management and impulse control problems”. She deposes that when she tried to speak to his mother about his behaviour, his mother told her that she could not help her as she was unable to control her son.
After Mr Bamber discovered that she had kissed another man, approximately 4 months after they separated in 2011, Ms Banton deposes that his behaviour became obsessive and alarming. She says:
11. […] He started to stalk me and went to the extent of loading my computer with surveillance software which tracked my computer and Internet activities by recording all of my keystrokes. The programme notified the applicant of my password changes and told him what the new passwords were. I made an attempt to see if the applicant and I could have a normal family life but quickly realised this would not be possible and that the applicant was disturbed. The applicant at that time regularly threatened to smash up my house and to harm himself. He also often threatened to kill himself.
The behaviour described constitutes persistent family violence of a very serious nature and it is to Mr Bamber’s credit that in his discussions with Dr T he essentially accepted the accuracy of Ms Banton’s description.
It is not in dispute between the parties that after they separated in May 2011, X, then almost two years old, would spend overnight time with his father on occasion as agreed between them. The weekend of 22 and 23 October 2011 was such an occasion.
It was Mr Bamber’s evidence that on the night of 22 October he had gone out with friends and left X in the care of his sister. It was his evidence that he had consumed drugs and alcohol and had been out all that night. He had then taken X to a friend’s home where he had consumed more drugs, including Ice.
It is against that background that Ms Banton sets out the events of 23 October 2011 as follows, beginning with her description of a telephone call between her and Mr Bamber:
14.[…] The Applicant and I were arguing about his inability to properly care for X. During the argument the applicant wanted to know who I was going out with. He became very upset and said that he was going to drive his car off a bridge and kill himself because he couldn’t accept the fact that I didn’t want to be with him. He had been threatening throughout the argument to kill himself. I begged him to tell me where X was so I could pick him up but he refused to tell me. I refused to speak with him any further and hung up the phone. The applicant sent me a text message at about 12:34 a.m. which read “If you don’t answer I swear I’m done. X is with the boys puck (sic) him up”. Shortly after Mr Bamber came to my house and jumped through a closed window which I was standing behind, striking me in the face causing my nose to bleed. He then ran into the kitchen and I heard the knives drawer rattling. Thinking he might try to kill me, I tried to run. As I ran I heard the applicant yell “are you happy now?” I turned to see that he had no shirt on and his stomach was covered in blood. He had stabbed himself. He then assaulted one of my neighbours, the father of a young man who had tried to come to his aid with a towel. I did not see the applicant put his hand on the young man. I saw the applicant walking towards the young man who was backing away from him. The applicant hit the young man’s father with a left clenched fist to the right side of the man’s face. I understand that the applicant fractured the man’s eye socket and dislocated his knee.
In her trial affidavit, Ms Banton reiterated her evidence that her nose had bled from coming into contact with Mr Bamber’s body, giving her a nosebleed rather than a cut and she rejected Mr Bamber’s evidence in that regard.
She told Dr T that she was terrified of Mr Bamber and that on 23 October 2011 she had believed that he would kill her and she would never see X again.
In the statement she made to police on 23 October 2011 (which is annexed to her initial Affidavit) Ms Banton said that she had immediately tried to leave the house when she heard the sound of the kitchen knife drawer being opened but that the front screen door had been locked. She was able to get it open and then ran from the house. Mr Bamber had followed her out of the house after stabbing himself.
Ms Banton’s confirmed that evidence at trial and became extremely distressed whenever the details of that incident were enunciated, to the extent that she had to take a break from giving her evidence on more than one occasion.
Put shortly, Ms Banton does not believe that Mr Bamber is capable of change, that he is still potentially the man who, drug and alcohol-crazed, broke through her closed bedroom window in a rage on 23 October 2011 causing her to genuinely fear for her life. She is unsure what kind of evidence might change that view.
The expert evidence
The expert evidence about this issue is found in the evidence of Dr E, who prepared a psychiatric assessment of Mr Bamber and Dr T, who prepared the family report for the court. Both experts gave evidence at trial and were cross-examined.
While Ms Banton’s treating psychologist, Dr S, provided a report about her treatment and an assessment of her current psychological condition and issues, that report was provided on Ms Banton’s behalf and as her witness rather than as an independent expert. It does not address the issue of Mr Bamber’s risk to X except as a result of the information provided by Ms Banton and therefore I will not include her evidence here. I will return to it when discussing the third issue to be determined.
Dr E’s report, dated 28 November 2014, was annexed to an affidavit sworn on 11 and filed 17 February 2015.
In that report, Dr E sets out Mr Bamber’s personal, social and forensic history including what Mr Bamber told him about his relationship with Ms Banton.
Dr E describes Mr Bamber’s narrative thus:
Mr Bamber acknowledged that he could be difficult. He would have tantrums. He would throw pizza and was very impatient. He had a short fuse. He was verbally abusive and disrespectful. He would call Ms Banton names such as “slut”. There were lots of other things that he called her as well. He would not compliment her very often. He had a very sharp tongue. He had anger management problems. They went way back in life. The drugs made him worse.
When the separation finally did occur in June/July 2011 for some reason he couldn’t cope with that. He was consumed with jealousy. He didn’t want anybody else to have a relationship with Ms Banton. The thoughts were driving him crazy. He subjected her to surveillance on his computer which only increased his jealousy and became completely obsessed (sic). He would send her texts. Things got to the point where he was simply not coping. He was in a panic and was highly anxious and nauseated.
Looking back he believes he was frantic. He now acknowledges that the separation set off some form of abandonment crisis. He felt left out and was inconsolable. On occasions he would stalk her. When she continued to indicate that she was not interested, his sense of rejection and jealousy continued.
Dr E says that Mr Bamber acknowledged that Ms Banton had been “terrified” on 23 October 2011. Mr Bamber told Dr E that he had not been capable of having a relationship at that time. Dr E says:
He now understands that he was into control, that he tried to govern his relationship with her using violence.
Dr E says that Mr Bamber’s account of his relationship with Ms Banton “was accompanied by some sadness. He appeared regretful.”
Dr E’s diagnosis of Mr Bamber was of “Conduct Disorder of Childhood with antisocial personality traits as an adult and alcohol and substance abuse, the latter of which are in full remission”.
Nevertheless Dr E recommends that any initial time Mr Bamber spends with X should be supervised, he says “in the interests of all concerned”.
At trial, Dr E, who gave evidence by telephone, agreed with counsel for the mother that Mr Bamber had not told him of a diagnosis of “intermittent explosive order” made by a psychologist while he was in prison between 2009 and 2010. He was familiar with the term however, and said that it did not contradict his diagnosis of Mr Bamber’s personality.
Dr E was thoroughly cross-examined about whether the fact that Mr Bamber is not totally abstinent from alcohol is likely to exacerbate his risk of abusing alcohol in the future.
When asked about Mr Bamber’s admission that he had had eight or nine drinks at his 30th birthday party, Dr E said he did not think “this man’s case stands or falls on the basis of that behaviour”. He said in effect that he would be more interested in Mr Bamber’s drinking history overall. He said:
The question here is whether or not he has insight about the importance of alcohol contributing to his difficulties. And whether or not he has the motivation to exert control over that and use basically judgement, not to whether or not he absolutely abstains. And there’s not much evidence to show much difference between the two approaches in terms of outcomes.
When pressed again on the issue of problem drinking in general, Dr E replied thus:
And the point is about this man. He was fully disclosing about his horrendous history. And nonetheless – and at the end of seeing him I felt that he was – he was honest. I felt that he was demonstrating a number of areas of his life that he had attempted to rehabilitate himself. And I don’t think he can be criticised for having a couple of beers on his 30th birthday out of hand for that. If there was evidence that he was not insightful and he was drinking in a way which was no different to before then I think that your point’s very relevant. But as it has been indicated by Her Honour, there is no evidence that I’m aware of that I’ve been – that has been read to me that this man’s drinking is out of control.
When asked whether Mr Bamber’s convictions for driving while disqualified were examples of his antisocial personality traits as diagnosed by him, Dr E said this:
Well, that shows a lack of judgement. That’s for sure. But I still saw him as a man who was attempting to rehabilitate himself. Now, it’s not like a tap. You don’t turn it on and turn it off. But I think the general trajectory of his approach, his behaviour and his attitude to this matter is that he is attempting to rehabilitate himself in regards to those matters because he is aware for the first time in his life that there is somebody who is very important to him who he wants to maintain contact with. That was the thing that he was telling me. And I believed him.
In relation to Mr Bamber’s behaviour on 23 October 2011 indicating possible future behaviour when he is under stress Dr E said the following:
I feel uncomfortable providing an answer to that kind of question actually. I mean what I am saying is that there was very little doubt that he was out of control at the time you’re referring to. And, whilst there are risks related to a person of his make up, I can’t predict the future. What I am saying is that the time that I saw him he impressed me as a man that was making a genuine effort to actually take stock of his life in the context of the goal of maintaining contact with his daughter (sic), and he impressed me as actually making a genuine effort there.
In relation to the views stated in his report that any time spent between father and son should be supervised, Dr E said that he had recommended that because, at least initially, the time would have to be organised in a way that was both safe for X and reassuring for Ms Banton.
Dr T prepared a family report dated 11 June 2015 which was annexed to an affidavit sworn that same day and filed on 17 July 2015.
He records that when he was speaking to Mr Bamber about the possibility of observing him with X on the day of the interviews, Mr Bamber had said that he wanted what was best for X and that he had some concern about the potential negative impact on X of meeting him after an absence of some three years. He was also concerned that Ms Banton have appropriate supports in place for her should X respond adversely to his reintroduction to his father.
It must be said that those comments show a level of child focus that is rare in such situations, and that is very encouraging to the court.
Dr T sets out Mr Bamber’s personal, social and criminal history and then says the following:
68. Whilst Mr Bamber’s history is clinically familiar and etiologically informative in understanding his previous behaviour, it does not excuse or justify it, and I note that Mr Bamber did not attempt to do so. If Mr Bamber is to be believed, he has made some dramatic positive shifts in his mental state, focus (e.g. family, fitness), and lifestyle since his release from prison in November 2012. During his incarceration, he completed an intensive drug and alcohol program. Upon release, he completed a personal training course and secured full-time employment. Mr Bamber’s narrative appeared to suggest that he has developed some understanding and insight into his previous dysfunction, and he was able to contrast this with his new adaptive coping mechanisms which include learning to sit with emotional discomfort, effective communication, exercise, taking time to reflect, and having positive social supports (especially his girlfriend). Mr Bamber expressed a strong and authentic desire to be a good parent and role model for his son.
In relation to Ms Banton, Dr T reports as follows:
Ms Banton remains “petrified” of Mr Bamber. She will never have one-on-one contact with him again. She sleeps with a baseball bat next to her bed as a consequence of his previous abuse and abusive and disturbed behaviour towards her. Ms Banton told me tearfully that she believes that Mr Bamber would harm her given his behaviour on 23 October 2011; she thought he was going to kill her and that she would never see her child again.
Ms Banton told Dr T that while she believes it is possible for people to change as she herself had been able to make significant changes in her responses to the vicissitudes of life, she had no confidence that Mr Bamber had changed. She told Dr T that Mr Bamber had a history of dishonesty and had previously promised her that he had changed, only to relapse into drug use and abusive behaviour once more.
Dr T reports that Ms Banton was concerned that while Mr Bamber’s life might be relatively stable at the moment, she did not believe he would be able to cope if “the boat gets a little rocky”.
Dr T describes the interaction he observed between X and his father thus:
[…] Mr Bamber was notably cautious and meek when he approached X. He asked me quietly if he could tell X that he was his father. He offered his hand, which X shook. He asked X questions about school, which X did not appear to understand. Mr Bamber changed focus to the toys in the room, and they quickly engaged in play using a toy dinosaur set. They sat next to each other on the floor. Mr Bamber was quiet and calm in manner. He was attentive in joining X in his imaginative play; e.g. asking him questions and helping him to build the various structures. X appeared relaxed and settled into his father’s company and showed no sign of fear or hesitation. At various times, X stepped around his father to collect different toys and then returned to his father’s side. X actively sought his father’s attention to his play; e.g. “look!”; “That’s a dog”; “let’s play this”. They subsequently began a game of skittles, with Mr Bamber setting up the pins and X knocking them over. X appeared happy and excited as he counted the pins; “I got three”. He was able to accurately count to 6. He called his father “dad” on several occasions. He laughed and smiled whilst attempting to catch the plastic bowling ball from his father. At one point, he voluntarily hugged his father around his neck. He said “nice catch, dad”. At the end of the session, I asked Mr Bamber to see if X would help him to pack away the dinosaur set. X responded immediately to his father’s request without protest. He asked his father “have you got kids”. Mr Bamber replied “I’ve got you”.
Dr T describes X as cuddling into his father while his father took several photographs of himself and X at the end of the session.
Dr T appeared at trial and underwent cross-examination by counsel for all parties, and while his oral evidence was primarily restricted to the issue of the mother’s ability to cope with the prospect of X spending time with his father, and not in relation to whether the father posed a risk to X, he did say the following:
I think Mr Bamber – there’s certainly some indication that he has stabilised from where he was at. His functioning has improved in some regard from where he was at to where he is now. Some of that might be a bit of maturity. Some of that – he was able to reflect quite genuinely on what he had learned from his rehabilitation programs. I think that’s positive and I think the third thing as well – my suspicion is in some regard he might have just, frankly, got a taste of a better life compared to – now then what was. He has got a new partner who has provided him some significant support. His story is very familiar. Certainly, in my work in forensic populations that, you know, the background and then the trajectory. It’s very, very familiar and then coming out of that, though, having someone that stabilises, helps, assists to stabilise you but he was able to commit and finish a program. They don’t hand out Certificate IVs in fitness. You’ve got to be there. You’ve got to be there on time. You know, there’s training and some basic resuscitating and first aid. You have to know a bit about nutrition. It’s across the board. He would have had to do a little bit of work with some books. He had to do some study. He was able to complete that program. That shows a bit of dedication, discipline, motivation to get up. He didn’t seem to go back to his previous – what he used to be doing to the same extent. He appeared to be able to get a job and hold the job full-time. There were some positives to look at is what I’m saying.
It is my view that one can almost never say of people who have a history of drug and alcohol abuse and violent offending that there is no risk of further offences or antisocial behaviour.
However, in circumstances where there is evidence of a period of abstinence from illicit drugs of some four years, evidence of a significantly reduced alcohol intake over that period, no evidence of further violent offending, expert opinion which is very positive in terms of Mr Bamber’s future, observational evidence of an appropriate and indeed potentially close relationship existing between X and his father, and clear and credible evidence from Mr Bamber’s current partner that he does not display any of the behaviours which were a regular part of his relationship with Ms Banton, I cannot find that X is at more than a very slight risk if Mr Bamber were to spend time with him.
C. Whether the physical and emotional trauma suffered by Ms Banton on the night of 23 October 2011 and in the years following, including to the time of trial, is significant enough that the court should make an order preventing Mr Bamber from spending time with X.
This is perhaps the crux of this matter.
On 23 October 2011 Ms Banton experienced a violent invasion of her private space, an assault which left her bleeding and believing she was about to be killed, the sight of Mr Bamber covered in blood after he had stabbed himself in the stomach and the incident of Mr Bamber’s violent assault of her neighbour.
This experience must be seen in the context of what both parties concur was a history of controlling and coercive behaviour, serious verbal abuse and stalking of Ms Banton perpetrated by Mr Bamber.
It was her evidence at trial that she believed on that night that her life was about to end at the hands of Mr Bamber, and that she would never see her only son again.
It is difficult to overestimate the terror Ms Banton must have felt on that night.
Ms Banton’s presentation at trial was that of a woman still terrified to be in the same room as Mr Bamber, and whose reliving of the events of 23 October 2011 caused her enormous distress.
On a couple of occasions that distress was so great that I adjourned the court so that she could compose herself. Her distress appeared in no way to be fabricated or exaggerated and on one occasion I noticed that, in what appeared to be an involuntary response, she flinched visibly when Mr Bamber walked past her on his way to the witness box.
The question to be answered here is whether that clear distress is severe enough that it would not be in X’s best interests for Ms Banton to be forced to have even indirect contact with Mr Bamber, a situation that would be necessary if Mr Bamber were to spend time with X.
In other words, would the level of Ms Banton’s distress in circumstances where Mr Bamber spends time with X impair her ability to care for X?
Mr Bamber, of course, can provide no actual evidence in relation to Ms Banton’s distress save to say that he believes there is no reason for it as he is a reformed man.
On the basis of affidavit material already referred to and on her oral evidence at and her presentation to the court, I accept that Ms Banton’s distress is real and immediate and at least at the time of trial, serious and debilitating.
In both written and oral evidence she makes clear that she does not believe that Mr Bamber has anything positive to offer X, save perhaps for a sense of musicality which X seems to have inherited from his father.
It was her evidence both in affidavit material and at trial that she believed that Mr Bamber had instituted these proceedings not so that he could spend time with X but so that he could “have access to me and my life again”, although she was forced to concede that the Intervention Order against Mr Bamber, which will last until 2033, provides her some protection from any approaches he might make to her, and that in fact there had been no such approaches nor suggestion of them.
In addition, X is a child with very special needs and it is Ms Banton’s evidence that she fears that the careful and time-consuming work she has done over the course of his life in order to address those needs might unravel if he is to spend time with his father.
Much was made at trial of the diagnosis attributed to X by various practitioners. It is my view that in relation to the matters before the court, the exact diagnosis is not important.
Ms Banton’s uncontroverted evidence is that X’s behaviour is challenging and sometimes results in what she calls “meltdowns”, by which I understand her to mean that X’s behaviour becomes physically uncontained, with screaming and yelling and that he is very difficult to control during those events.
It was not disputed at trial that Ms Banton provides a teaching aide to accompany X at school at the insistence of the school and that she pays for that aide herself.
The issue before the court is whether Ms Banton’s distress at the thought of having even indirect contact with Mr Bamber will affect her ability to take care of X. There is no doubt that he is a child with special needs which would be challenging to any parent but it is the fact of those needs and the care needed to address them and not the exact details of his diagnosis that is relevant to the court’s determination in this case.
The mother’s evidence
It was Ms Banton’s evidence at trial that X’s behaviour after he had seen his father for the family report had become oppositional, aggressive in tone and defiant, both at home and at school.
However under cross-examination Ms Banton conceded that she could not say with absolute certainty that X’s behaviour at that time was a direct result of him having seen his father and that even if it had been, it may have been as a result of him having been excited to have spent time with Mr Bamber.
Ms Banton said that X had been happy to see his father on that day and that he had told her that they had played dinosaurs. However, she said that he had not asked about his father since that day.
When asked what she had previously told X about his father Ms Banton said she had told him that he had a daddy, that his father’s name is Mr Bamber and that Mr Bamber loves him very much. She said that she had told X that Mr Bamber lived in Melbourne and that X did not spend time with him because he “works away”. She said under questioning that she may have told him that Mr Bamber was on holidays as a reason why X did not spend time with him. She could recall only one particular occasion when X had asked whether he was going to see his father when Ms Banton brought him to Melbourne.
Ms Banton confirmed that she was seeking an order that Mr Bamber be able to send cards, letters and gifts to X via her mother’s address, and gave evidence that when she had received gifts for X’s fourth birthday from Mr Bamber in 2013, she had taken photographs of them and posted them on Facebook, knowing that Mr Bamber would probably see them on a mutual friend’s timeline and that seeing the photographs would give him pleasure.
When asked her response to Dr T’s comment that children who are denied contact with one or other parent when the parents separate is at serious risk of emotional harm, Ms Banton said the following:
And as soon as I read that my instant reaction was the same reaction that I have every single day. As a mother I ask myself every single day am I making the right decision for my child? Am I doing the right thing? And in my heart I believe that I am.
Later, when asked whether her true belief was that Mr Bamber was a violent man and that he might hurt X she said the following:
See, one part of me very rationally says to myself that he wouldn’t hurt him, and then the other part of myself is – in my mind he is capable of anything, and that is the hardest part – is that in my mind he is capable of anything.
She agreed that her fears were at least partly the result of her experience of the events of 23 October 2011 and became very emotional when answering questions about that issue.
When it was put to her that her beliefs about the father’s inability to change his behaviour would mean that there would never be an appropriate time for him to spend time with X, Ms Banton said that while she could not predict the future, she was open to X spending time with his father when he was old enough to protect himself and that she thought that that might be at around the age of 12.
It was put to Ms Banton that if none of the evidence of Mr Bamber, Dr E, Dr T, or Ms C had been able to change her view about Mr Bamber’s potential risk to her and X, then nothing would be able to do so. She denied that suggestion, saying that she honestly believed that the passage of time might be able to calm her fears.
She was clear in her evidence that she did believe that Mr Bamber loved X.
She denied that her proposal that X spend no time with his father at present was part of an attempt to “eradicate” all memories of the troubled period in her life when she lived in (omitted), saying: “I don’t think that there’s any possible way for me to erase those times in my life”.
She conceded that her brother, Mr J, who remains an acquaintance of Mr Bamber, had previously used drugs, although she was confident that he was no longer doing so. When asked why she believed that her brother, who spends time with and sometimes babysits X, had been able to reform while not being able to believe that Mr Bamber had done so, Ms Banton said:
Because I have a constant relationship with my brother, an open relationship, and my brother is honest with me and hasn’t in my experience had a history of lying to me.
She conceded that her brother’s current partner is the woman with whom Mr Bamber had been taking Ice and partying on the night of 22-23 October 2011, but was adamant that her brother had never taken Ice, nor indeed any drugs in X’s presence.
Ms Banton conceded that four days after the events of 23 October 2011, she had told a child protection worker that despite the events on that day, she believed that Mr Bamber was a good father and she did not want to deny him time with X. At that time she was proposing supervised time because she was concerned about Mr Bamber’s capacity to care for X should his drug and alcohol abuse continue.
She further conceded that at a follow-up contact with the child protection worker on 11 November 2011, she had said that things were going well and that while X had initially had some trouble sleeping following 23 October, he had now settled back into his routine and was sleeping through the night.
The following passage from the Department of Health and Human Services subpoenaed file on 11 November 2011 was then read to Ms Banton:
The mother stated that she believes the father would never intentionally hurt X. She stated there are concerns surrounding his parenting skills and drug use with the mother stating that she felt these issues would need to be addressed prior to him having access to X.
Ms Banton denied that that had been her view of Mr Bamber at that time and said the following when explaining why she had said those things to the child protection worker:
I at that point was under a lot of pressure from Mr Bamber’s sister. I was under pressure to retract my statement. I was told that it was my fault DHS was called. I had been told to go back to the police and tell them that I was fearful of the neighbour – that the cabinet wasn’t Mr Bamber’s (sic). I was told that I didn’t need to go to court to get the restraining order. There was a lot of pressure there to make it all go away and, even though we had a friendly relationship, I’ve always been very cautious not to cross his sister.
Ms Banton conceded that she had lied to the child protection worker when she said that Mr Bamber was a good father in November 2011.
It was Ms Banton’s evidence that she had experienced flashbacks, nightmares and panic attacks since Mr Bamber instituted these proceedings and she was forced to see him at the court. She said that she had thought that she had recovered from the events of 23 October 2011, but that when she saw him at the previous court hearing “it all became real that I might have to deal with this person again, my life has just been a complete mess ever since”.
It was at that time, after the February 2015 court date, that she had sought professional assistance in dealing with those experiences.
In relation to Dr E’s recommendation that Mr Bamber’s time with X be supervised, the following exchange took place between the mother and counsel for the father :
Counsel: If Dr E sticks to his guns and sticks to his recommendations, would you then be prepared to consent to an order for supervised contact between the father and X?
Ms Banton: No, because my view has not changed.
Counsel: No matter what anybody says, your view won’t change so it doesn’t matter what the evidence is does it?
Ms Banton: No, that’s not correct.
And later
Counsel: And so a pile of clean drug screens done while he was in prison, since he’s been out of prison, random, they show him clean but that doesn’t convince you that he doesn’t use drugs does it?
Ms Banton: I think it’s a step in the right direction. Yes.
Counsel: It’s not a step in the right direction, he is using or he is not using. He is not using is he?
Ms Banton: Not that I’m made aware of.
Under cross-examination by counsel for the Independent Children’s Lawyer, Ms Banton stated that X behaves best when his routine is clear and that he does not respond well to changes in that routine.
She gave as an example that school holidays are a difficult time in her household because X had become accustomed to the school term regime did not respond well to the change during school holidays. She said that it would be “hard work trying to get him adjusted to [a new routine]”.
However she conceded that having her new partner Mr E moving in with her two months before X started school had provided a very new routine for him but that after a period of adjustment X had been able to cope.
The situation was very different in relation to X’s adjustment to school and it was Ms Banton’s evidence that X was not attending school full time at the time of trial because it had taken him a long time to transition into school.
Ms Banton told counsel for the Independent Children’s Lawyer that if X were to buy a Father’s Day present for his father as part of his school activities, she would forward that gift to the father.
She also agreed with counsel that if the father were to have regular time with X in a supportive environment such as a contact centre, then X would adjust to that routine with assistance.
Further, she conceded that if X were to spend time with his father there would be no need for her to come into any face-to-face contact with Mr Bamber.
Nevertheless she was concerned about how her family would cope if X were to have the kinds of “meltdowns” he had after the family report on a regular basis after seeing his father at the contact centre.
She was also concerned that Mr Bamber and staff at the contact centre would not know her routine of visual cues that she had introduced to X in order to control his behaviour, cues which she said were also used for X at school and at her mother’s home. She conceded however that there would be opportunities for her to discuss that issue with staff at the contact centre.
When asked about Mr Bamber having sent X gifts for his fourth birthday, Ms Banton conceded that she had coped with that contact with Mr Bamber without experiencing anxiety. She also agreed with counsel that she had strong family and friendship supports in (omitted).
She confirmed previous evidence that she would be extremely anxious if Mr Bamber were to spend time with X in Melbourne, as she would feel unable to assist X if anything went wrong. She said she would feel less anxious if any time spent between X and his father were to occur in (omitted).
Throughout her evidence, Ms Banton insisted that she goes to great lengths not to allow her own anxieties about Mr Bamber to be conveyed to X, although she conceded that he may pick up on her anxieties nevertheless.
When asked under re-examination what she had meant when she had told counsel for the Independent Children’s Lawyer that a six-month trial of X spending time with his father at a supervised contact centre followed by a further report from Dr T would give her “a degree” of comfort, Ms Banton said the following:
I have all these questions that just haven’t been answered yet. And, you know, supervised at an Access Centre, yes, I would still be anxious, but that’s something that I could probably cope with. But it’s what goes on from there. My last experience when Mr Bamber had X in his care, my last phone call was him revving his car, saying, “Can you hear that? Can you hear that? I’m going to kill myself” and me asking where my son is. And he wouldn’t tell me. That is my biggest fear, that he is going to take him and I’m not going to know where he is. It’s what leads on from supervision that really worries me.
I found Ms Banton to be truthful and honest when giving her evidence, although at times she became confused, which is not an unusual response to having one’s firmly held views challenged.
While her view of Mr Bamber is unshakeable at this time, she has been seeking professional assistance to deal with the trauma associated with having to face again the nature of her relationship with him and the events of 23 October 2011. That is greatly to her credit.
I did not find her to be exaggerating her evidence or the extent of her distress, and she impresses mightily as a young mother raising a child with serious intellectual, emotional and behavioural issues in a positive, healthy and appropriate manner.
In support of her case that X should spend no time with his father, Ms Banton filed the affidavit of Dr S to which was annexed a report by Dr S, dated 8 July 2015, in relation to the mother’s psychological condition.
Dr S is the psychologist whom Ms Banton had been seeing for counselling since April 2015, a couple of months prior to the beginning of trial.
Counsel for the mother made clear at trial that Dr S’s report, which I allowed to be filed out of time, was that of a treating practitioner and not of an independent expert. I note that Dr S makes that very point in the third paragraph of her report.
In that report, Dr S states that she has been seeing Ms Banton under a Mental Health Treatment Plan provided by her general practitioner and that at the time of writing, she had seen Ms Banton on six occasions.
Dr S says her report is based on:
[…] a review of background information, behavioural observations of Ms Banton, clinical interviews with Ms Banton; and formal psychological testing.
She sets out Ms Banton’s personal and social history, including the background Ms Banton had provided about her relationship with Mr Bamber.
Dr S sets out the information provided by Ms Banton in relation to the events of 23 October 2011 as follows:
13. […] She said that by this time X’s father had driven to her home, and while she was desperately trying to contact people to find out the whereabouts of their son, she realised that upon looking through the window X’s father had screeched to her place in his car and was skidding through her yard. She said she saw him running towards her house diving through her window, with him summersaulting (sic) into her room. She said he flew into her. She said she sustained a blood nose as a result of this. She said she threw the phone out of her hand, upon her realising he had run into the kitchen looking for the knives. She said upon looking over the island bench, he was rummaging for the knives. She described him as “bat out of hell” with his appearance indicating he had pure rage. She said she literally raced to the front door, and upon realising she was locked in by the security door, she thought she would never see X again. She said she remembers crying thinking she was going to be stabbed to death and would never see her son again.
I note that none of this information is inconsistent with the mother’s evidence to this court, both written and oral.
Dr S goes on to say:
17. […] She said that it was that split second when she could not get out of the house, that she faced the fear of death. She said she recalls feeling intense fear and horror. She said she is terrified of the man. Ms Banton said that after seeing X’s father, she finds herself having “a meltdown”, with her finding it difficult to breath (sic), with her heart palpitating, and with her becoming highly distressed. She said she is extremely fearful that X’s father will run off with him. She said she has severe fear that he will harm X and abuse him, and abscond with him. She said she is very fearful of his mind games. She said she was very fearful of being murdered. She said that she has told her partner and people close to her, that if ever she disappears, to let people know she would never leave X. Ms Banton indicated that after the incident in October 2011, she dealt with her intense fear by moving away from the area to (omitted) in the hope of making a new life. She said that her intense psychological symptoms were triggered in September 2014 when she saw the father in Court regarding the father’s quest to have access to his son. She said her symptoms became worse in February 2015 when she had to see the father again. She said she remains very vigilant, and is aware that she has significant psychological difficulties upon having any contact with the father whatsoever.
Dr S states that her psychological testing of Ms Banton did not reveal her to be “motivated to portray herself in a more negative or pathological light than the clinical picture would warrant”.
Dr S’s testing in relation to trauma symptoms and behaviours are said to have revealed the following:
Ms Banton’s validity scale responses in the TSI-2 indicated that her responses were valid. That is, she did not respond indiscriminately to items, nor did she over-endorse specific Posttraumatic Stress Disorder items. Based on Ms Banton’s responses, the Trauma Factor T score is clinically elevated. Ms Banton’s responses to the TSI-2 indicate that she is experiencing clinically significant levels of anxiety in the form of both worrying, irrational fears, nervousness and fears of death or injury as well as in the form of over activation of the sympathetic system (i.e. “flight or fight”) nervous system such as jumpiness, hypervigilance, irritability and sleep disturbance. In addition, Ms Banton’s responses indicate she is experiencing intrusive post-traumatic reactions and symptoms including nightmares, flashbacks, unsetting (sic) memories that are easily triggered by current events, and repetitive thoughts of an unpleasant previous experience that intrude into awareness. Ms Banton’s responses also suggest she often attempts to suppress or eliminate painful thoughts or memories from awareness, and frequently attempts to avoid events or stimuli that might restimulate such thoughts or memories. Ms Banton’s responses to the TSI-2 also indicates (sic) that her somatization manifests principally in physical pain. Ms Banton’s responses to the TSI-2 are consistent with a diagnosis of Posttraumatic Stress Disorder.
Later in her report, Dr S says the following
It appears that the critical incident in October 2011 triggered Ms Banton's Post-traumatic Stress Disorder (PTSD).[…]
and
[…] her PTSD symptoms have been significantly triggered by her exposure to her son’s father who has been attempting to gain access to his son through the Family Law Court. Ms Banton is considered to be suffering PTSD, with the primary trigger for her severe symptoms of intrusion relating to having to have any contact at all with her child’s father. Ms Banton’s responses to the TSI-2 and PAI are consistent with the diagnosis of PTSD. Ms Banton is consider (sic) to cope very well when away from any reminders of her son’s father. Her responses to the NEO PI-3 indicate she has a capacity for leadership, and for being productive and efficient. Ms Banton has proven to be deeply focused on ensuring her son’s developmental and behavioural needs are met. It appears that her son does have significant vulnerabilities, with this adding to Ms Banton’s distress and fear should her son have access to his father. It is extremely important for Ms Banton to retain her mental health particularly in the light of the special needs of her son. It is considered that should the father be granted access to X, that Ms Banton's PTSD symptoms will become more prominent. It is considered that Ms Banton’s mental health would be placed at significant and ongoing risk in the event that X was to have any access to his father. Further, any deterioration in her son’s presentation as a result of having access to his father would also significantly impact adversely on Ms Banton’s mental health.
Dr S gave evidence at trial by video link from the Albury registry of the court.
Under questioning from counsel for the mother, Dr S explained the nature of the psychological testing she had used to assist her in diagnosing and treating the mother.
She said that the PAI, or Personality Assessment Inventory, “provides information about psychopathology relating to clinical symptoms” and that the NEO Personality Inventory 3 “provides a background as to the individual’s personality dimensions across a number of domains which are outlined in the report itself”.
She said that the relevance of the testing to her diagnosis of PTSD was that it provided a further dimension to the information upon which the diagnosis was based. She said that in addition to the testing she had based her diagnosis on background information, behavioural observation and her clinical interviews with Ms Banton. It was her evidence that the recommended treatment for PTSD is “cognitive and behavioural therapy”.
Dr S was subjected to vigorous cross-examination by counsel for the father as to her diagnosis of PTSD and her report in general and I note that Dr T was also asked questions about Dr S’s diagnosis and methodology.
Dr S denied that she had prepared her report in order to counteract Dr T’s recommendations, although she conceded that she had telephoned Ms Banton’s solicitor after reading the family report because she was concerned about the effect that the report’s recommendations might have on Ms Banton’s mental health.
She disagreed with counsel that she had been “supportive in an unquestioning fashion” in her dealings with Ms Banton although she conceded that she had not met Mr Bamber and that any comment she made about him necessarily came from what Ms Banton had told her.
Dr S also disagreed that she had made her diagnosis of PTSD before conducting any psychological testing with Ms Banton and that therefore her interpretation of the results of the testing might be questionable.
She agreed, however, that her treatment of Ms Banton had been helpful for Ms Banton, in that she was reporting less anxiety and fewer nightmares and that she hoped that it would continue to be so.
However when asked whether she expected Ms Banton to make a full recovery from the PTSD with which she had diagnosed, Dr S said that she did have that expectation but it would depend on the “context in which she can operate” and that that context would not include Ms Banton having “exposure” to Mr Bamber.
The following exchange then took place between me and Dr S:
Judge: So do you envisage that there may be a time in the future with appropriate therapy where Ms Banton may be able to tolerate X having time with the father?
Dr S: Well that’s stated in the report.
Judge: So that’s a “yes”?
Dr S: Yes, that would be correct.
Dr S said she was “encouraged” when told that Ms Banton had said she “would cope” if the court were to make an order that X spend time with his father at a contact centre. She said if that was Ms Banton’s evidence, she, Dr S, would feel comfortable with that.
She agreed that if Ms Banton were to develop the ability to tolerate X having time with his father without her anxiety taking hold, that would be desirable therapeutic outcome but she was clear that she thought Ms Banton would find that very difficult and that it would be “very unsettling” for her to have any involvement with Mr Bamber at this time.
Dr S said further that Ms Banton’s anxiety about having contact with Mr Bamber was “an independent variable” in the context of Ms Banton being able to “be assured that the system could protect the child”. It was her opinion that it would be “very wise that there be no contact” between the mother and the father at all, even in the context of the mother necessarily being the intermediary for gifts, cards and letters that the father might send to X.
Under cross-examination by counsel for the Independent Children’s Lawyer, Dr S conceded that she had not administered “a baseline test to the mother for anxiety”. When asked why she simply said:
Sometimes we do, sometimes we don’t. In this case, I just didn’t do that. I think it was her presentation was such that it took a session to do it, to take her through the history.
When informed that Dr S had not conducted any baseline measures when she had Ms Banton undertake psychological testing, Dr T was critical of Dr S’s methodology saying that if there were no “pre-measure” it would be impossible to measure treatment efficacy.
Nevertheless, Dr T then made what I considered to be a very pertinent point when he said:
Perhaps the other aspect to consider in this is as well that may be the diagnosis, you know, almost regardless of the diagnosis, what can Ms Banton tolerate? Regardless of the label we put on it, regardless of how we put this into a diagnostic category and we start ticking all the criteria – just regardless of that, what is she able to tolerate and what is she not able to tolerate and what do we know about our observations of this thus far?
He was not at all surprised to hear that Ms Banton had become so distressed during her evidence that the court had had to be adjourned for short periods, particularly as that distress was exhibited when Ms Banton was answering questions about the events of 23 October 2011 (which he described as “the most traumatic experience of her life under a highly pressurised situation in the witness box”) and that Ms Banton was facing the possibility that she may have to have dealings with Mr Bamber in the context of X spending time with him.
Under questioning by counsel for the Independent Children’s Lawyer, Dr T said that he thought that any orders made in this case should be interim orders so that there could be some period of time where X sees his father under supervision, and then a reassessment after eight or 12 months. He said he would be happy to conduct a further family assessment at that time.
It was Dr T’s opinion that any time between father and son should commence as soon as possible, and that Ms Banton should continue to attend upon a clinical psychologist for exposure-based therapy in relation to her anxieties and distress.
When asked whether he thought Ms Banton would cope with the situation where X saw his father at a supervised contact centre and Ms Banton was not required to see Mr Bamber, he said:
Based on my observations, based on the clinical information I have before me to work with, I would tend towards yes if she was motivated to do so, if she had the ongoing support of a psychologist who was targeting her anxiety around that, and that was regular: that was regular. If the symptoms are severe as we’ve been told they are you would be looking at weekly sessions at least, to be working with this person to help them to cope with this anxiety around this notion. That doesn’t mean I would be necessarily happy with that from a clinician’s perspective, I’ve addressed that, but I don’t like the idea that she has to do that. I don’t like imposing these things on her. […] She is a very skilled parent, how she has coped thus far, what she has done and been able to do to X, which is demonstrated from a parental functioning perspective that she has been functioning very high, at a very high level. Does she have the capacity to cope with the support of a psychologist? On the information I got I think the answer is yes.
Under cross-examination from counsel for the father, Dr T agreed that the fact that Ms Banton was prepared for Mr Bamber to send letters, cards and gifts to X was incongruent with a diagnosis of severe PTSD. He also agreed that that situation augured well in terms of the mother’s ability, with the support of therapy, to cope with X seeing his father.
Under cross-examination from counsel for the mother, Dr T agreed that the fear and distress Ms Banton feels at the prospect of having to have dealings with Mr Bamber is genuine and severe. But he reiterated that “regardless of labels, it’s about what is able to be tolerated”, and it was his opinion that with appropriate therapeutic support, Ms Banton would be able to do so, especially if she did not have to have direct contact with Mr Bamber.
When asked whether he thought that it would be dangerous to begin a trial of time spent between X and his father without having a deeper understanding of Ms Banton’s therapy regime, Dr T said that the more clinical information one has the better but he thought that if Ms Banton could tolerate being in the courtroom with Mr Bamber, then she would likely be able to tolerate a situation where she did not come into any direct contact with him herself.
When it was put to him that Dr S, Ms Banton’s treating psychologist, had given evidence of her concern about even supervised time beginning in the context of Ms Banton’s mental health, Dr T said he would support that opinion if he could be satisfied it was based on “gold standard clinical methodology”. He then said that if there were questions about the methodology employed (and I note that he later referred to Dr S’s methodology as “problematic”), it would raise questions about the validity of Dr S’s judgement “on this particular patient in this particular diagnosis”.
He conceded that there was a risk to X if his mother did not cope with him seeing his father. However he noted that Ms Banton had been able to tolerate X being taken to the prison to visit his father in the months after the events of 23 October 2011 until she believed that X’s behaviour had deteriorated as a result. He pointed out that Ms Banton’s reason for discontinuing those visits was because of X’s behaviour and not because of her own responses. However, he did concede that symptoms such as those displayed by Ms Banton can be delayed after a traumatic incident.
He said that it could be seen as part of her exposure therapy for her to come into indirect contact with Mr Bamber. In other words, forcing her to have that indirect contact with Mr Bamber could be seen as part of that treatment and Dr T specifically said that “avoidance is the contraindicated treatment for PTSD”.
Dr T impressed as a thoroughly professional and thoughtful witness. He had prepared for his appearance in the witness box extremely well and while he conceded that there are risks involved in this case whichever way the court decides and he was absolutely accepting of the authenticity of Ms Banton’s anxiety, his professional view was that Ms Banton would most likely tolerate indirect contact with Mr Bamber such as that which would be involved in X spending time with him at a supervised contact centre.
The Law
The law in relation to parenting matters is found in Part VII of the Family Law Act 1975 (“the Act”).
The objects and principles which underlie Part VII are set out in s.60B, which states:
Section 60B(1): The objects of this part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse and neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2): the principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
S.60CA states:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
S.60CC then sets out 16 separate considerations that the court must take into account when determining what orders to make that are in a child’s best interests, and I will deal with each of those considerations individually.
There are two primary considerations set out in s60CC(2). These are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The meaning of the term “meaningful relationship” has been addressed in several cases that have come before this court and the Family Court of Australia.
In an oft quoted passage from the judgement of Brown J in Mazorski v Albright[2], Her Honour said at paragraph 26:
A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.[3]
[2] Mazorski v Albright (2008) 37 FLR 518
[3] Ibid
In Tait & Dinsmore[4], Cronin J considered the distinction made by Kay J in Godfrey & Sanders (2007) Fam CA 102 between an optimal relationship and a meaningful relationship, and said, at paragraph 170:
Kay J distinguished between the optimal relationship and the meaningful relationship. … The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.[5]
[4] Tait & Dinsmore (2007) FamCA 1383
[5] Ibid
That is, in the context of this case, if the relationship between X and each of his parents can be said to be important, significant, valuable, healthy, worthwhile and advantageous to him and each of his parents provides a positive role model for him, then the benefit to X in maintaining and developing that relationship must be a primary consideration of the court in considering what is in his best interests.
Clearly, X has a very meaningful relationship with his mother, in every sense of that word as set out above. There is no suggestion by any witness that Ms Banton is less than a wonderful parent to X, nor any suggestion that her care of him thus far has not been exemplary.
At this stage, X cannot be said to have a meaningful relationship with his father, but that is not to say that there is no potential for such a relationship to develop in the future.
Given Dr T’s observation of X with his father as described above, there is every reason to believe that if Mr Bamber can maintain his abstinence from drugs and violent offending and he is able to provide a consistent and positive role model for X to follow, a meaningful relationship is likely to develop between father and son.
Of course, it almost need not be said that that relationship should only be allowed to develop if X’s safety can be, if not guaranteed, then promoted to the greatest extent possible.
In this case, the father has agreed that his time with X, at least initially, should take place at a contact centre where that time would be professionally supervised.
That situation provides considerable safety for X, as the supervisors would step in and cease the session if they thought Mr Bamber were doing anything that might cause harm to him, either physically or emotionally.
It is the question of what happens once X has spent the maximum number of supervised sessions allowed that is the real issue in terms of his safety.
Until there is some evidence of X being safe in his father’s care and of a relationship building between father and son, it will not be possible for the Court to make Final Orders and it is accepted by all parties that it is not in X’s best interests for any time between him and his father to be unsupervised at this time.
I will therefore craft interim orders that provide for professional supervision to continue should the contact centre be unable to provide supervised contact until this matter can come back to court.
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The continuation of supervision of X’s time with his father after they have exhausted the services of the contact centre is not because I have doubts about X’s safety in Mr Bamber’s care – I have already found that there is little if any risk in that regard - but because I need to see some further evidence of the relationship between father and son before I can be satisfied that the relationship is meaningful in the terms set out in Tait & Dinsmore[6].
[6] Tait & Dinsmore (2007) FamCA 1383
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
We do not know what X’s views are as he was not interviewed due to his disabilities. In any event, he is only six years old and his views would have only medium weight.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
I have already discussed this factor in paragraphs 276 to 278 above in relation to X’s parents and there is no need to expand on those comments here.
X lives with his mother, step-father and, at times, his step-brother. There is only the unchallenged evidence of Ms Banton in relation to his relationships with those two people but that evidence is that while X understandably took some time to get used to having new people in his life, he has become quite close to them and has come to see them as family.
There is also evidence that X has a positive relationship with his maternal extended family including his grandmother and uncle, who have looked after him at times in the mother’s absence.
Because X has not seen his father for some years, he has had no opportunity to develop any relationship with his paternal family, which relationship was fractured after the events of 23 October 2011 and the subsequent breakdown in trust between Ms Banton and Mr Bamber’s family.
Nevertheless, there is some evidence from that time that X had developed a close and appropriate relationship with his paternal grandmother and aunt, as Ms Banton had allowed them to take X with them when they visited Mr Bamber in prison, at least for the first few months.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
All decisions about X’s life since October 2011 have been made by his mother and X has spent virtually all his time with her. She has spent significant effort in ensuring that her communication with him is consistent and appropriate given his disabilities.
Mr Bamber made no attempt to have X brought to see him in prison after the relationship between Ms Banton and the paternal family broke down and only instituted these proceedings in in May 2014, some eighteen months after he was released from prison.
However, I accept his evidence that he spent significant time and effort after his release in getting his life back on track and in obtaining qualifications so that he could work, which would explain the delay in his taking steps to see X.
Certainly, ever since he issued these proceedings Mr Bamber has made every attempt to spend time and communicate with X through legal channels.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
As far as the court is aware, Mr Bamber does not pay child support, although there is no evidence that Ms Banton has sought an assessment of his liability from the Department of Human Services (Child Support) since he left prison in November 2012.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
There is no suggestion that X will live with anyone but his mother. Any separation from her, or from her partner and his son, would be for very short periods of time.
There may be some effect of such separation after X sees his father but on the expert evidence before me, it is unlikely to be a permanent effect.
If he continues to be separated from his father however, there is expert evidence to say that he might suffer emotional and psychological harm in the future.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
This is a significant issue in these proceedings as Mr Bamber lives in Melbourne and Ms Banton lives in the (omitted) area.
Mr Bamber accepts that if he is to spend any time with X, it would be in the (omitted) area for a considerable length of time. He has said that he is willing to do the travel necessary at his own expense so that he can establish and develop a relationship with his son.
Therefore at this stage of the matter, this factor is not one on which a decision turns.
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
Again, there is no suggestion that Ms Banton cannot fully provide for X’s needs.
She cares for him on a daily basis, ensures that he has the assistance of a teacher’s aide at school, addresses his behavioural issues in a consistent and appropriate manner, and ensures that he has contact with his extended maternal family.
There is, at this stage, a question mark over Mr Bamber’s ability to meet X’s needs. The last time he had the care of his son he displayed nothing less than a disgraceful lack of concern for X’s welfare.
However, the evidence of his rehabilitation, and the concern for X expressed to Dr T before he saw him suggests that he now has some insight into and sensitivity to those needs.
He will need to keep himself up to date with X’s special needs as a result of his disabilities and it is to be hoped that he has used the time between trial and the delivery of judgment to take up opportunities put to him at trial in that regard.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
Both parties impress as mature adults and there is nothing in the current lifestyle of either which would give the court cause for concern.
There are no conflicting cultural issues which would raise any concerns for the court.
X has particular special needs which are highly relevant to this case. I have discussed those matters elsewhere in these Reasons and need not repeat them here save to note them as a particular characteristic of the child.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant factor in this matter.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Mr Bamber’s past attitude to X and to his responsibilities as a parent, can be gleaned from the evidence about his life from when he was released from prison in July 2010 up to and including 23 October 2011. It is not a pretty picture.
However, again I take into account all the evidence of his rehabilitation and the evidence of Dr T about his meeting with X in May 2015 where he showed, even in the necessarily short time available, an appropriate and caring parental demeanour.
Ms Banton has taken her responsibilities as X’s parent very seriously since his birth. She attempted to protect him from the risk of him having contact with his father after separation and has continued to protect him that perceived risk since October 2011.
It is to her enormous credit that she conceded at trial that if an order were made for X to spend time with his father she would comply with that order despite her fears.
Her evidence about her reaction to reading Dr T’s report shows an ongoing thoughtfulness in relation to her parental role and responsibilities that is difficult to fault.
(j) any family violence involving the child or a member of the child’s family;
The serious family violence perpetrated by the father upon the mother, both during the relationship and after separation, has had catastrophic effects on Ms Banton. Indeed, the impact of his behaviour, and especially the events of 23 October 2011, cannot be overstated.
Ms Banton’s evidence that she believed that she would die that night and would never see X again was thoroughly convincing and I have no doubt that her fear of Mr Bamber as a result of that violence is very real indeed.
The father admits that he behaved in a violent and abusive manner towards the mother of his son on multiple occasions. That admission is to his credit.
At trial, Mr Bamber impressed as a genuinely remorseful man, whose only wish is to have an appropriate and positive relationship with his son.
He does not appear to use violence in his current life and he says quite believably that he has learned alternate ways of dealing with the stressors in his life.
Despite Ms Banton’s fears, there is no evidence that he has sought to stalk or approach her in any way and no breaches of the intervention order have been reported to police.
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
The mother obtained an Intervention Order against the father in December 2011 after the events of 23 October. That order was extended on 27 November 2013 and will now last until 30 November 2033. That is a very long-lasting family violence order in anyone’s terms and I certainly take that fact into account.
Mr Bamber is no doubt aware that there will be very serious consequences, both in terms of criminal law charges and in terms of these proceedings, if he were to be found guilty of any breach of that order.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is usually the case that final orders are made after a trial. That is because it is considered that the extension of proceedings after all the evidence has been tested is not in a child’s best interests.
There are cases however, where it is preferable to make interim orders only, so that a relationship between parent and child can be observed and tested before final orders are made.
This is such a case.
It is possible to make final orders, although those orders would have had to account for multiple unknowable contingencies but when I consider all the evidence and particularly the opinion of Dr T and the submissions made on behalf of the Independent Children’s Lawyer, I find that it is X’s best interests to make only interim orders at this stage.
(m) any other fact or circumstance that the court thinks is relevant.
I have considered the submissions of the mother in relation to the decision of the Full Court of the Family Court of Australia in Blinko & Blinko[7]. I have considered the three statements of principle, set out as dot points in that judgment, in relation to whether a child ought to spend time with a parent in circumstances similar to those that pertain in this case. Those statements of principle are gleaned from previous authorities and are a summary of those authorities’ reasons for decision.
[7] Blinko & Blinko (2015) CAFC 146
The first principle governs a situation where a court is satisfied that a parent presents an unacceptable risk to a child. That is not the situation here, so that principle is not relevant in this case.
The second principle relates to the situation where there is a genuinely held belief on the part of the resident parent that the child is at risk in the care of the other parent.
That is the situation here, although the orders I will make in relation to supervision will, on the evidence of the mother herself, allay her fears somewhat.
The third principle relates to the situation where “the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent’s capacity to care for that child”[8], which is precisely the situation the mother says pertains in this case.
[8] Blinko & Blinko (2015) FamCAFC 146 at paragraph 83.
However, I will not be making orders for the parents to come into contact with each other at this stage and it was the mother’s own evidence, as well as that of Dr S, that with therapeutic assistance Ms Banton’s genuine fear of Mr Bamber is likely to recede, at least enough to allow her to let X spend time with his father.
Mr Bamber will be X’s father for the rest of his life. X deserves the chance to get to know him in a safe environment where Mr Bamber can demonstrate his parenting skills, his parental attitude and his ongoing commitment to his son and to his current healthy lifestyle.
I will make interim orders only so that Mr Bamber can show himself to be the father he says he wants to be, as there is, as I have said, a question mark over that issue until he is given that chance.
D. Whether Ms Banton ought to be permitted to change X’s surname from “Bamber” to “Banton”
As I propose to make only interim orders in this matter, I will not make any order allowing for a change in X’s surname at this stage.
However, on balance, I do find that it is appropriate and in X’s best interests for his name to at very least incorporate his mother’s surname as she is his primary carer and will continue in that role. Having his mother’s surname as part of his name is likely to make both X’s and Ms Banton’s lives a little less difficult.
Whether Mr Bamber’s name continues to be part of X’s name will depend on whether he is able to show his commitment to developing his relationship with X.
Conclusion
I am satisfied, after consideration of the evidence and the matters set out in s.60CC, that it is in X’s best interests to spend time with his father at this time, albeit in a supervised environment.
I am further satisfied that, with considerable therapeutic help, Ms Banton will be able to tolerate that situation.
I will therefore make orders that allow for X to spend time with his father in a supervised environment until the matter can return to court with evidence from the supervisors and an updated report from Dr T.
The ball is now in Mr Bamber’s court. He must show himself to be committed to his son in actuality rather than in theory. He must attend for time with X at the contact centre and if necessary, under the supervision of a private supervisor, in a consistent and regular way in circumstances that will not be easy for him in terms of travel and expense.
If he cannot do that, it is unlikely that his relationship with X will develop to the next stage.
It is to be hoped that he will show himself able be the father that he says he wants to be and that Ms Banton’s therapy will allow her to tolerate that involvement until the matter returns to court.
X’s experience of his reintroduction to his father lies almost entirely in the hands of Ms Banton and it is to be hoped that she will prepare him positively for that experience.
I certify that the preceding three hundred and forty six (346) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 21 July 2016
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Remedies
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Procedural Fairness
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Costs
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