Barrine and Vance
[2017] FCCA 581
•31 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BARRINE & VANCE | [2017] FCCA 581 |
| Catchwords: FAMILY LAW – Bitter parenting dispute about 3 year old child – mother asserting father violent and controlling – father largely denying mother’s allegations – mother’s version essentially correct – independent experts not regarding father as danger to the child – orders for limited time made as recommended by family report writer. |
| Legislation: Family Law Act1975, s.60CC |
| Cases cited: Goode & Goode [2006] FamCA 1346 |
| Applicant: | MR BARRINE |
| Respondent: | MS VANCE |
| File Number: | MLC 3096 of 2015 |
| Judgment of: | Judge Burchardt |
| Hearing dates: | 8 & 9 February 2017 |
| Date of Last Submission: | 9 February 2017 |
| Delivered at: | Dandenong |
| Delivered on: | 31 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Barrine, in person |
| Counsel for the Respondent: | Mr Howe |
| Solicitors for the Respondent: | Warren, Graham & Murphy |
| Counsel for the Independent Children’s Lawyer: | Ms Dowler |
| Solicitors for the Independent Children’s Lawyer: | Danielle Webb Lawyer |
ORDERS
The mother have sole parental responsibility in relation to the child X born (omitted) 2013 (“X”).
X live with the mother.
X spend time with the father each alternate weekend for a period of two hours on days and times as nominated by the Anglicare Contact Centre at (omitted) (“the (omitted) Contact Centre”) with the first hour to be supervised and the second unsupervised and the father be permitted to take X outside the centre for the second hour.
The unsupervised time in order (3) be increased by one hour every four months from the date of these orders until the child spends three hours with the father unsupervised.
The father and mother communicate with each other in writing and this is limited to issues in relation to the child.
The mother keep the father informed in writing of all issues so far as practicable in relation to the child’s health and schooling.
The father be permitted to obtain information directly in relation to the child’s kindergarten or school directly from the kindergarten or school.
Both the father and mother keep each other informed of their current residential address in writing and provide the other parent with the details of any change of address within 7 days of that change in writing.
Until further order, the mother and her servants and agents be restrained from removing or attempting to remove the child X from the Commonwealth of Australia.
Until further order, the father and his servants and agents be restrained from removing or attempting to remove the child X from the Commonwealth of Australia.
Until further order, the child X be restrained from leaving the Commonwealth of Australia.
That the mother undertake counselling with a counsellor as recommended by the Independent Children’s Lawyer to assist her with her anxiety.
THE COURT REQUESTS THAT:
The Marshal and all officers of the Australian Federal Police and of the police forces of the various states and territories take all necessary steps to give effect to these orders, including all things necessary to include and retain the said child’s name on the airport watch list in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the said child’s name on the airport watch list until further order of the court.
IT IS NOTED that publication of this judgment under the pseudonym Barrine & Vance is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
MLC 3096 of 2015
| MR BARRINE |
Applicant
And
| MS VANCE |
Respondent
REASONS FOR JUDGMENT
Introductory
This is a parenting dispute about the best interests of a young child X born on (omitted) 2013. The applicant father’s position has at times been difficult to pin down but in essence he seeks an order for joint parental responsibility and a slowly expanding process whereby his time with X becomes unsupervised and ultimately achieves an equal time regime. The mother’s countervailing position is that she should have sole parental responsibility, that X should live with her and spend supervised time with the father until at least 2019. The Independent Children’s Lawyer’s position is that there should be an order for joint parental responsibility but that X spend time with his father each alternate weekend for two hours on days and times as nominated by the Anglicare contact centre at (omitted) with the first hour to be supervised and the second hour unsupervised. The Independent Children’s Lawyer posits a further and more significant regime of time in the event that the father were to relocate from Melbourne where he now lives to the area where the child lives, but that proposition does not immediately appear to be likely to occur in the presently foreseeable future.
Each parent has expressed concern that the child may be extracted from Australia, and I would indicate that it is appropriate that there be a Watch List order. Both sides seem to want one and the father in particular struck me as being capable of impulsively taking X overseas.
For the reasons that follow I propose to make an order that the mother have sole parental responsibility, and that the spend time regime be as recommended by the Independent Children’s Lawyer.
Agreed or Uncontested Relevant Facts
It should be noted that the affidavit material of the parties is by no means entirely satisfactory. This is more the case with the material filed by the father much of which is irrelevant or objectionable for a variety of reasons, unsurprisingly perhaps given his self-representation. His affidavits contain little by way of detailed factual background to himself and to an extent in relation to the matters before the Court. The mother’s material while more structured, as one would expect given her legal representation, likewise is by no means completely informative. Some of what is taken in this passage of the judgment comes from what the parties told either the expert psychiatrist Dr M or the report writer Ms M.
The mother was born on (omitted) 1981 in Australia. She has trained and in the past worked as a (occupation omitted) although she is now employed as a (occupation omitted). She lives in (omitted), which from looking at a map appears to be (omitted) and approximately 100 or more kilometres east of (omitted). X lives with her and has done so since his birth. According to what the mother told the report writer Ms M, X sleeps in her bed on a routine basis.
The father was born on (omitted) 1985 in the (country omitted) of which of course he remains as citizen. His current visa status in Australia has never been made entirely clear. His family, unsurprisingly, is in the (country omitted).
The parties met in (omitted) 2012 and commenced cohabitation, it would appear, towards the end of September 2012. Their relationship was characterised perhaps as on/off and the father returned on at least one occasion to the (country omitted) in 2013. X was not a planned child but following his birth on (omitted) 2013, the parties separated on a final basis in January 2014. The father went to the (country omitted) between March and June 2014.
On 1 October 2014 the father pleaded guilty to assault of the mother in (“the assault”). He may not have been the subject of formal conviction but he undoubtedly pleaded guilty to an assault. He has also been the subject of an Intervention Order made on 20 November 2014 with a final expiry date of 22 July 2016. There have been other Intervention Order proceedings between the parties. The mother suggests that the Intervention Order may be extended but this is not entirely clear.
On any view of the matter the father has spent little time with X. Initially he spent some time with X in the company of the maternal grandparents, with whom it is clear his relationship is strained. Between May 2016 and December 2016 the father has spent supervised time with X at Anglicare Victoria in (omitted), which time is the subject of an affidavit from Ms V affirmed 3 February 2017.
The Affidavit Material of the Parties
It is important to bear in mind that in writing judgments the Court should be slow to record things which may be hurtful or distressing to parties or witnesses generally. So much is common courtesy. Unfortunately this a case in which because of the way in which the parties have articulated their positions and made their submissions, some measure of criticism is unavoidable. The father’s affidavit material is not such that I propose to traverse it in detail. At paragraph 60 of her family report, to which I shall return, Ms M recorded:
Both parents, particularly the father came across as verbose and elaborate about the mother’s flaws and failings. It is not helpful to his case using various psychological labels about the inadequacies of the mother. His statements come across as he is writing an essay about human behaviour rather than talking about an issue that is close to his heart. More importantly, it takes the focus away from the very topic he wishes to bring to the notice of the legal system. The reasons for this could be that the father is (sic) brought up in a different culture with diverse social norms and may also due to an intense and compulsive personality.
I quote this paragraph because in my view Ms M’s characterisation of the father’s affidavit material is largely correct. Nowhere in his various affidavits does he say in terms precisely what his living arrangements are and what his work is. Such matters were in fact disclosed to Ms M and recorded by her. This is the only knowledge that the Court has of these matters which is striking given that the mother has complained in her affidavits on more than one occasion about the failure of the father to make such disclosures. The father’s affidavit material is replete with verbose-psychological type language, which I note he is not qualified to advance in any professional or academic sense. Put shortly, and in my view it is better put shortly, he is vividly critical in his accusations of the mother’s alleged infidelities during the relationship, her essentially cheating behaviour to deprive him of time with his son and what he describes as her covert narcissistic personality. In his affidavit filed 19 August 2015 (the pages are not paginated) under a heading “Claim 3” the father’s complaints are perhaps representationally described as:
I claim that Ms Vance uses triangulation and manipulation as an indirect means of pay back and to achieve her goals without letting me know and without regard for anyone but her, and has resulted in damages including but not limited to psychological harm to everyone involved, financial losses, with copious and unnecessary loss of time, energy and resources.
The father also complains that the mother has failed appropriately to mediate the difficulties between the parties and presents himself in his affidavits very much as the aggrieved party.
The mother’s affidavit material is as I have indicated more structured. She sets out an outline of the history of the relationship. She asserts that the father was essentially controlling and at times violent (including the assault that gave rise to the criminal proceedings to which I have already referred) and details a misguided obsession that she was being unfaithful to him with former partners during the relationship. It is clear from what the father has told the external professionals that the mother’s perception of the father’s views is an accurate one.
Put shortly, once again it is perhaps better put shortly, the mother maintains that the child has no understanding of who his father is, that the father is a risk in the event that he is left unsupervised with X because of his shortness of temper and lack of parental experience.
The Affidavits of the Independent Witnesses
The Affidavit of Dr M
Dr M interviewed both parties for the purposes of a psychiatric report pursuant to court orders. His report notes a number of important matters. I note that at page 6 of 18 the father informed Dr M “(l)ike his father he is a perfectionist and his temper is similar with a short-fuse”.
At page 8 of 18 of Dr M’s affidavit the father told Dr M, “Mr Barrine felt that the attraction for him was that they were able to talk and communicate, although the relationship was on and off, because of his concerns about Ms Vance’s previous relationships and her continued contact with past partners which created a lot of jealously for him. He also had difficulty coping with the relationship that Ms Vance had with her boss where she complained of sexual harassment.” (The mother has denied any such incident and was not cross-examined as to her affidavit denial.)
Also on page 8 of 18 of the affidavit the father told Dr M, “(a)t that time of the initial relationship difficulties, Mr Barrine sought advice from a counsellor in the (country omitted), as a result of that he has attended a number of programs, recognising some of his behaviour was unacceptable.”
Dr M diagnosed the father as having a mixed anxiety disorder with features of social obsessive-compulsive and generalised anxiety and obsessional and dependant personality traits. At page 9 of the affidavit Dr M recorded:
Mr Barrine in his submission to the Family Court has acknowledged that his behaviour has been at times inappropriate. Behaviours described can be understood in the context of his Obsessive Compulsive Anxiety and personality traits, behaviour designed to maintain control of situations where one feels one is losing control.
At page 14 of the affidavit Dr M noted that the mother described herself as “a worrier and a perfectionist”. At page 16 Dr M diagnosed the mother as having a mixed anxiety disorder with features of social, obsessive-compulsive and generalised anxiety. He went on to note in relation to the mother’s anxiety disorder that she would benefit from confronting and obtaining advice about anxiety management from a psychologist.
The Affidavit of Ms V
Ms V is the Service Team Leader relevant to the supervised time that the father has spent with X at Anglicare Victoria. The visits commenced on 7 May 2016 and proceeded until 17 December 2016. The report which was compiled from the notes taken by supervisors from time to time can fairly in my view be characterised as showing a gradual and continuing development of the relationship between X and his father in terms that in my view are unexceptionable. It is clear from this report that the father loves his child and behaved in an unexceptionable way during the times he spent with him.
The Report of Ms M
Ms M noted at paragraph 7 of her report the dispute between the parties as to what it was that gave rise to the criminal proceeding in 2014. The mother asserted that the father was found guilty of assaulting her when she was holding the child and fined without conviction but the father denied that he assaulted the mother at all, alleging that she in fact assaulted him. At paragraph 9, Ms M recorded that the father rents a room in (omitted) in a shared household where he moved in December 2016. The father indicated an intention possibly to move closer to (omitted) to be closer to the child. He is in a new relationship with a (occupation omitted). He works as a (occupation omitted) at a clinic in (omitted) with flexible hours. He spends time with X once a month at the contact centre at (omitted).
Ms M noted that Ms Vance resides in (omitted) with X for whom she provides daily care. X attends day care during weekdays and when the mother works night shifts he sleeps at the home of one of her friends. The mother works rotating shifts of four days on and four days off and has a supportive relationship with her parents who reside near (omitted).
The report notes at paragraphs 13-16:
Mr Barrine stated that he was seeking to spend extended unsupervised visitation with X, which gradually increased according to the child’s age, developmental needs and child’s own wishes. He maintained that there is no reason for him to continue spending limited supervised time with his son at a contact centre. In the long run, the father wishes to spend time with the child on an equally shared basis so that he is able to positively contribute to the upbringing, development and progress of his son.
Mr Barrine expresses concerns that the mother purposefully and maliciously hinders him and his son from enjoying a close and meaningful relationship.
Ms Vance seeks that she has the residence orders in relation to X and the father continues to spend supervised visits on a monthly basis at the (omitted) centre on a permanent basis. During the report interview process, she indicated that the supervised visits should continue at least until X reaches school age in 2019.
She expresses concerns about the mental health status of the father and his ability to provide protective care for X. She alleges that X would be at risk of harm if he has unsupervised visits.
This analysis of the parties’ positions in my respectful view is an accurate paraphrase (perhaps unintended) of their affidavit material.
Ms M noted that the mother was opposed to unsupervised time with the father and indeed sought (see paragraph 18) to downplay the generally positive report from the Anglicare centre. The mother placed considerable emphasis upon a lengthy letter written to her by the father at about the time of the separation or shortly thereafter which the mother felt raised concerns about the father’s mental health. Indeed the letter is exhibited I believe to two of her affidavits. The mother’s approach to the father is perhaps best expressed at paragraphs 65-66 as follows:
The mother seems comfortable with her observation that ‘X does not even recognise Mr Barrine as dad’. The writer did not see evidence to believe that the mother actively or consciously encourages the child to recognise and bond with his father.
Moreover, Ms Vance uses this as a reason for not allowing X to spend unsupervised or extended time with his father. She argues that the father has no experience to look after the child on his own. But she is unwilling to allow an opportunity for the father to learn about issues relating to parenting their son. This ‘chicken-or-egg argument’ can run for a long time.
Having noted that the contact centre had stated that X appeared comfortable being around his father but was reported to maintain some emotional distance during the visits, the report continued at paragraph 68:
X presented similarly during the report interview. Although he may not recognise Mr Barrine (sic) as ‘dad’ the writer is of the view that X instinctively realises that Mr Barrine (sic) is someone important in his life and that he is expected to have a relationship with him. However X is also aware of the tension and negative vibes between his mother and father and he is not emotionally or cognitively mature enough to make sense of it all.
At paragraphs 74-76 Ms M observed, having traversed the positions of the parties and their various complaints of one another:
X has a right to enjoy a stress-free and positive relationship with both his parents. He needs genuine assistance from his mother and maternal family to connect with his father with his best interests in mind. The writer does observe that Mr Barrine (sic) loves his son and it is unlikely that he would deliberately harm his child. At the same time if the mother’s anxiety exacerbates, it is likely to have a negative impact on X. This can lead to disruptions in his time regime with the father as his time with his father needs to become stronger. Therefore there is a need to progress slowly.
The writer suggests that the father continues to visit Anglicare-Victoria to spend time with the child, but on a fortnightly basis for a period of two hours. During the first hour of the visit, the father and son spend time at the centre. For the next hour, Mr Barrine could take X for an outing and bring him back to the centre.
Based on the process of such regime and the father’s settlement in an appropriate and independent accommodation in (omitted), there could be gradually increased fortnightly time between the father and son. At this point the writer is unable to make definite long term recommendations in relation to X’s living arrangements as it is dependent on several factors that may or may not occur in the future.
Ms M went on to recommend equal shared parental responsibility, that X reside with his mother but spend time with his father, together with ancillary related orders relating to X’s health and the like. She further recommended a Watch List order until further order in respect of both parents.
The Submissions Made and Evidence Given at Court – the Applicant Father
It should be noted that what follows does not purport to be a transcript. It is taken from my notes and records those aspects of the matters put that struck me as being of particular significance.
In his brief opening the father emphasised his love of his child and indicated what he described as problematic behaviours on the part of the mother. He did not agree with supervised time at (omitted) and said there was a better alternative. He said that there were problems from both sides but they needed to be a family. He said that the maternal grandparents resented his visits and that it was an impossible environment. Court for him was the last resort. He had undertaken post-separation parenting classes and other classes also to assist him.
The father was then called and adopted his affidavits as true and correct. Under cross‑examination by counsel for the mother, the father denied being angry or violent. He said he had not been convicted following the assault, although he conceded that he was found guilty of assaulting the mother. He conceded he was also found guilty of assaulting the child and said he lost his temper. He said he was not an angry or violent person and that this was a one off. He denied having been found guilty of crimes of violence in the (country omitted). Nonetheless it emerged that in an incident there he had thrown a lamp against his wall and appeared to have been convicted of what he described as “criminal mischief” against a former girlfriend’s property. He said he had to admit that offence, having undertaken classes, this leading to the charges being dismissed. This account was not altogether easy to follow but it appears that he was in some way found to have misconducted himself in the (country omitted).
The father was taxed with having grossly insulted the mother during a telephone visit and he denied that he had been abusive. When asked if he had called the mother a “cunt” he said he did not remember.
When taxed with an incident on 23 February 2014 he said he had been sitting on a park bench and had said some things. When it was put to him that he had told the mother, “You can take your scraggy cunt and fuck anyone you want”, he said that the parties had had words but he could not remember. He said that the mother would goad him with descriptions about her relationships with other men and that he was jealous. I should interpolate and say that the father’s answers to this line of questioning were entirely evasive and prevaricating.
The father eventually admitted that he had sworn at the mother on the occasion of the assault and said that the parties would have words. The mother had said that he would not see his child again and she pushed him and he pushed back. He said X was in the pram throughout. He said that the mother fell and pulled X from his stroller. This was of course the incident that gave rise to the conviction in October 2014. The father said that he accepted responsibility for these assaults but went on to say that he had never accepted this and pleaded not guilty. In substance, he simply does not accept the fact that a court has found him to have assaulted the mother and the child. The father went on to accuse the mother of inventing the incident that gave rise to the Intervention Order taken out by the police in June 2014. He conceded, however, that he was charged with breaching the Intervention Order when he texted her and was fined $500. He said an appeal against the Intervention Order was heard in December 2015 but was still going. The messages he had sent to the mother were goodwill but he had learnt his lesson. He said he had sent five text messages in the span of a year and it was the mother who chose to make the relationship bad. He said he did not in fact understand the terms and effect of the Intervention Order, something I should make clear I do not believe.
The father said that the mother had chosen not to speak to him for three years but they needed to raise the child together. The critical years were until the child was seven years old. He said that the mother needs to be educated and that she exercises dysfunctional conflict management practices. He denied being controlling of the mother. Nonetheless he was forced to concede that the incident at paragraph 9(m) of the mother’s trial affidavit, when he contacted (omitted), was indeed him. When it was put to him that the mother considered him controlling, the father said words the effect, “I can’t wrap my head around the way she thinks.” He admitted being rude to the maternal grandparents, as alleged in paragraph 9(o) of the mother’s affidavit.
The father conceded that he had called (omitted) Health as alleged in paragraph 9(p) of the affidavit. He said he was entitled to look after his son’s health and was worried about the mother’s mental health. He said she would not address matters constructively. He had taken the same issues to the Department of Health and Human Services (“DHHS”). The mother was narcissistic which was damaging to X. He confirmed that the DHHS took no action.
The father denied the insults alleged in paragraph 9(w) of the mother’s affidavit. His answers were, however, clearly, in my view, untruthful. The father said he had written a letter in February 2014 at a time of great stress (this being the letter appended to the mother’s materials).
When cross‑examined about the relationship between himself and the mother, the father said that she was uncooperative. He said it was a trend where she chose to be disagreeable. He accepted (superficially) half the responsibility for the poor state of relations, but I would interpolate and say that, from what he said and by the way that he said it, it is clear that he blames her entirely. He accepted that the mother is scared of him and wants as little as possible to do with him. He said that he proposed to see X each alternate weekend from Saturday to Monday, with changeovers supervised by a third party. He did not want the maternal grandparents there. He said he wanted four hours on one day per fortnight unsupervised, possibly from 1 till 5 pm for six months, and then moving to the alternate weekend regime. He was seeking equal shared parental responsibility. When asked what that meant he replied that it meant showing up at ball games, the child being loved by both families and not having hostility between the families. He said it was not necessary for the parties to get on for there to be shared responsibility.
The father went on to say that he had been exemplary in his communications with the mother but she would not be cooperative. There was no chance for good communications with the mother. He disagreed with Ms M about the need for supervision and said that the mother needs to address her anxiety condition.
Under cross‑examination by counsel for the Independent Children’s Lawyer the father described his son as affectionate and adventurous. He said he would like to take him fishing and show him who he was. He said he would never discredit the mother, but he immediately went on to say that the mother was mentally unwell. He had concerns about his son’s emotional development. He said he had undertaken research. He repeated that the mother was mentally unwell but conceded that he was not medically qualified. He said the mother was a covert narcissist, although, when asked what narcissism was, I did not find his answer illuminating. The father said he had said things he should never have said and had stayed too long in the relationship. He does not regret contacting (omitted) Health. He said that his child was at risk of possible psychological harm and neglect. He said his research had been going on for years. He had read Dr M’s reports and accepted his views.
The father said he wanted primary care. This had gone on too long and it constituted a detriment to his son. He said his research showed that this was detrimental to his son. The mother and her parents had created a toxic environment and there was little trust between the parents.
The father confirmed that he is a (occupation omitted) by employment and works from Tuesday till Saturday from 3 to 8 pm. He works at clients’ homes as well but has just established his business. Close friends and day care would be used if the child lived with him, but he had not made any inquiries about these matters.
In re-examination the father said that the mother had had him attend self-help classes. He had written “garbage” when he could not sleep (a reference to his rambling correspondence). He said that how time was spent should be up to him and X, and the mother should go to therapy to address her anxieties.
Submissions and Evidence of the Mother
In opening, counsel for the mother confirmed that she proposes that she has sole parental responsibility and that the father spend time with X for two hours per fortnight supervised at (omitted) until he commences school in two years. Thereafter the regime proposed by the Independent Children’s Lawyer should be put in place, subject to the father living within 40 kilometres of where the mother lives. He confirmed that a watch list order was sought.
The mother was called and adopted her affidavits as true and correct. She was cross‑examined by the father. Given the father’s self‑representation, a number of the questions put and the answers to them do not, in my view, require detailed attention. The father did traverse with the mother whose fault the various difficulties were and, scarcely surprisingly, the mother stuck to her position. She confirmed that she had acted as she thought appropriate throughout. When it was put to her that she was anxious, she said that her anxieties arose because she was abused and assaulted during the relationship. She said that blame was irrelevant now. Whilst she agreed that belittling of a parent could affect children, she said she has not seen any. Noteworthily, however, when the father put it to her that X might deserve both parents in his life, she declined to answer. She said, elliptically, that X deserved to be safe. She said X had good role models. She said if X could be guaranteed to be safe, then it would be okay for him to spend time with the father. She said X was a very happy child. She said that stress meant that the relationship between the parties was less than optimal and that she could not see things getting any better. The mother’s demeanour while giving these answers was combative and angry.
The mother confirmed she had an eating disorder and depression in her early 20s but this was long before the parties met and she had not suffered for over a decade. The mother confirmed that while she had at one stage sought help for depression by seeing a counsellor, she has had no difficulty since. She agreed that she was anxious after the assault.
The Evidence of Dr M
Dr M adopted his affidavit as true and correct and the reports annexed to it.
Under cross‑examination by counsel for the Independent Children’s Lawyer, Dr M confirmed that a dependent personality trait means that a person is likely to stay in a relationship and make concessions they can resent. They would feel hurt and bitter if the relationship ended and would fear being alone and abandoned (these all being matters assessed about the father). Dr M had not heard of covert narcissism and said it would be hard to be a covert narcissist. Narcissism is single-minded. Narcissists are not empathetic, and selfish. Persons who are obsessive compulsive can be rigid and have great difficulty letting go. The father had conceded problems with anger to Dr M, but he could not comment on the father’s parental capacity. He said the mother tends to be shy, a worrier and a bit of a perfectionist. She should see a psychologist to manage her anxiety.
Under cross‑examination by the father Dr M confirmed that anxiety can be triggered by problems. Dr M felt he had dealt with the question of narcissism sufficiently. There was enough information from the history given by the parties and the Court materials. He had no particular safety concerns about either parent.
The Evidence of Ms M
Ms M’s report was tendered as exhibit ICL1. Under cross‑examination by counsel for the Independent Children’s Lawyer Ms M confirmed that she was aware the father sought primary care of X over a period of five years. She knew this as she had spoken with him, but she did not agree. She stuck by her recommendation of one hour supervised and some 45 minutes outside the centre. The father was quite affectionate to the child and was not angry or upset with the child. Even this measure of contact nonetheless caused her doubts. It was important that the mother not be present. The father did not have accommodation for the child in Melbourne but has said he was willing to travel. Ms M felt that both parents should take the blame for the assault. She thought that Anglicare might counsel both parents. Both sides fear losing control. Any progression of time must be slow.
Under cross‑examination by counsel for the mother, Ms M confirmed that contact should take place at Anglicare but should increase by one hour every four months to a point where after eight months there were four hours spent. Ms M confirmed that it was very difficult interviewing each of the parents. They both had lots to say about each other and clearly had a toxic relationship.
Under cross‑examination by Mr Barrine, Ms M confirmed that X would reflect his mother’s difficulties and thought counselling would assist her. The mother’s views were rigid. Ms M had observed some distance between X and his father but things appeared to be moving along. Ms M was aware that X sleeps with a friend of the mother’s when she is at work on nightshift. Anglicare was an opportunity for the father to be with the child. It was not just required because of the mother’s anxiety. Safety was an issue.
Final Submissions of the Independent Children’s Lawyer
Counsel submitted that the parties could not communicate. The contact centre provided security for the mother. The mother had justified concerns about the father. The assault had occurred and there was no excuse for violence. The mother was holding the child at the time. The father could make an application should his circumstances change. It was difficult to look too far into the future with the child being so young.
Submissions of the Mother’s Counsel
The mother supported the position of the Independent Children’s Lawyer entirely. The relationship between the parents was toxic, and equal shared parental responsibility would not work. The mother wanted not to be controlled. While Ms M had played down family violence, the mother was concerned with the father’s temper. He was controlling and continues to assert that the mother suffers from a psychiatric illness. An Intervention Order is in place and has been breached albeit that there is an appeal. There was a reluctance by the child to be close to the father and there were major practical difficulties with time, given the distance between where the parties live. The mother accepted that it was appropriate for her to have treatment to assist her with her anxiety. She feels a great fear that the father will hurt the child. It was noted that the father conceded that he was prone to anger.
The Submissions of the Father
The father’s final submission went on for some length. It was, in part, somewhat rambling. He sought what he described as shared equal custody. He said supervision was unnecessary. There should be equal shared parental responsibility. He felt as though he had been punished by the mother. The lengthy rambling letter he had sent to the mother had been sent to try and save the relationship. He said the maternal grandparents were present only to harass him and to control the relationship. He had concerns about helicopter parenting style. He was concerned the child did not have his own bed and that a close controlling relationship with the mother could be damaging to him. He said photos, tendered as exhibit A1, showed the grandparents interfering, but I have to interpolate and say that this is not apparent. The father said that the mother’s family were unpleasant and that the mother had imposed a hostile environment. Her anxieties were unmanaged. He asserted a history of violence by the mother and said that safety issues were catastrophised. He said he had been to men’s counselling and understood anger management, and had been to conflict management. He had been to a post-separation parenting course. He said he pays child support and is in the process of taking out, or proposes to take out Australian citizenship. He said the only problem was the mother’s anxieties and that the independent experts said there was no risk. He sought the orders in his most recent affidavit.
Statutory Pathway
The Full Court of the Family Court set out in the case of Goode & Goode [2006] FamCA 1346 (“Goode & Goode”) the statutory pathway in terms which, despite some minor subsequent statutory amendment, in my view are still applicable.
The statutory pathway as set out in Goode & Goode at [65] is as follows:
“Summary
[65] In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.”
Some Brief Observations about the Credit of the Witnesses
The father impressed me vividly, as he had indeed Ms M during the preparation of her report, as somebody given to verbose and rather grandiose generalised statements about psychological/psychiatric issues generally. I have already commented in passing on various occasions as to the unsatisfactory nature of some of his evidence. He impressed me as vividly lacking in insight. His true position remains that he did little, if anything, of which complaint could be properly made during the relationship. As I will find shortly, this is not the case. He no doubt believed what he was saying, but unfortunately I do not by any means entirely believe him.
The mother impressed me as being extremely angry with the father. It is also the case that not all her answers were responsive and, despite her best endeavours to conceal it, it is clear that she wants as little, if anything, as possible to do with the father now and into the future.
Dr M was a professional witness giving evidence within his expertise and his evidence was entirely credible.
While Ms M was not moved in any meaningful way under cross‑examination, and while I accept the force of her professional evidence I do not accept the downplaying of the violence that was exhibited during the assault for which the father was found guilty. I will return to this matter. It impacts also against Ms M’s recommendation for shared parental responsibility.
Parental Responsibility
As the Full Court made clear in Goode & Goode, the statute operates in such a fashion that the Court must consider an order for equal shared responsibility unless it is the subject of a family violence exemption and/or not in the child’s best interests.
This brings us to the competing versions of the relationship propounded by the two parents. Having seen and heard them give their evidence, while I suspect that to an extent the mother may have stood up for herself rather more than she now concedes, there is no doubt whatever in my mind that the father did indeed assault the mother and the child, causing them to fall down an embankment, as the mother asserted. He did not plead guilty but was found guilty, albeit that no formal conviction was recorded. No one has made any submissions as to issue estoppel but, even leaving that matter aside, having seen the parties give their evidence, I have no doubt that the mother’s version is correct. Furthermore, the objective evidence (such as the father’s concession to Dr M that he has a short fuse) only goes to buttress the impression that I formed from the demeanour of the father during his time in the Court. He lost his temper on this occasion because the mother was not doing what he wanted and, in my view, the evidence amply supports the finding I am prepared to make that he was a controlling and domineering and short-tempered partner throughout the relationship. The relationship was characterised by angry and petulant behaviour on the father’s part (including his several brief returns to the (country omitted) and his extraordinary decision to send the mother a photograph of himself in a sexual relationship with another woman on one occasion while he was there). He undoubtedly directed foul abuse to her from time to time. Ms M tended to downplay the violence but as earlier indicated I do not agree. In my view, the violence is enough of itself to set aside the presumption of equal shared parental responsibility in this case.
Not only has there undoubtedly been family violence, but in any event, an order for equal shared parental responsibility is plainly utterly unworkable and therefore not in the child’s best interests. As I find, the father is a controlling personality who would only use an order for equal shared parental responsibility to endeavour to coerce (or, as he would put it, persuade and/or discuss) the mother to do what he wanted. The fact is that the child presently lives almost all his time with the mother and, given the distance between where the parties live, there are serious practical difficulties with the exercise of joint parental responsibility, in any event. Overarching all these difficulties, however, is the toxic relationship between the parents and their utter failure to communicate in a sensible way. An order for equal shared parental responsibility is utterly unworkable in the circumstances and, furthermore, would give rise to continuing anxiety on the mother’s part which would certainly not be in X’s best interests.
Equal Time and/or Substantial and Significant Time
The Court is, of course, required to consider equal time and/or substantial and significant time within the meaning of the Act. The father, indeed, seeks equal time and indeed, although scarcely clearly articulated, that the child live primarily in his care over a period of time. This is of course plainly utterly impracticable at the present time. On his own case he does not have suitable accommodation for the child to spend any overnight time with him. He lives hundreds of kilometres from where the mother lives. An equal time regime is further contraindicated by the fact that the parties have communication difficulties and the very poor interpersonal relationship that I have indicated.
Much the same can presently be said about any prospect of substantial and significant time within the meaning of the Family Law Act1975 (Cth) (‘the Act’). The fact is that X has never spent more than two hours with his father. Although, as Ms M says, he knows that his father is an important person in his life, he has not yet (and not least because the mother has not encouraged it at all) truly come to appreciate that Mr Barrine is his father. The suggestion that one should be moving to substantial and significant time forthwith as the father seeks is misconceived.
The Orders in X's Best Interests – Section 60CC(2) of the Act
The formal position of all of the parties is that it is to X’s benefit to have a meaningful relationship with each of his parents. The position of the mother, in truth, is somewhat different, but that is at least the formal position.
All of the parties refer to the need to protect X from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. The mother has a vivid fear that the father will, in effect, lose his temper with X and injure him. I note that Dr M had no particular fears about either parent. I note further that Ms M is of the view that the father would not deliberately harm the child.
Nonetheless it is a fact that the father has assaulted the mother and been found guilty of the assault. He also, I have no doubt (and this is all too obvious from the various messages that he has sent the mother that are before the Court) had a tendency to control and abuse the mother during the relationship. However, the relationship has now ended, and without in any sense diminishing the importance of the father’s past conduct as I have found it, I note that the two independent experts do not share the mother’s vivid fears of the father’s likely conduct if X is in his care. It should also be noted that the regime proposed by the Independent Children’s Lawyer and supported by the mother contains careful safeguards, at least in the immediate short term, inasmuch as a substantial amount of the time would be supervised and the amount of time proposed is, in any event, short.
Section 60CC(3)(a)
X has expressed no views, given his age.
Section 60CC(3)(b)
The child has an excellent relationship with his mother who is his primary carer. For my part I would have some reservation about the intensity of the mother’s emotions towards the child, understandable as they are, in part, because of the difficult history of the relationship with the father. X is now coming up to three and a half years old and I would expect him to start sleeping in his own bed. If he remains enmeshed with his mother, this is likely to be a difficulty for him. Nonetheless the mother has a very close and loving relationship with X for whom she cares devotedly. It would appear that X also has a close and well-established relationship with the maternal grandparents, a relationship strongly encouraged, it would appear, by the mother.
X’s relationship with his father is more complex. I have already recorded the passages in which Ms M records her observation of the father and X. I also have regard to the contact centre report. Scarcely surprisingly given the amount of time X has spent with his father, with the implicit disapproval of his mother lurking in the background, the relationship has not developed yet as might ultimately be hoped. Nonetheless there is no reason to doubt that the father does indeed love his child dearly.
Section 60CC(3)(c)
No criticism can be advanced of the way in which the mother has made decisions about the child and spent time and communicated with him. She is his primary carer. The father’s behaviour has, however, been erratic. I have not traversed in detail the story of his comings and goings. Nonetheless it has to be said that, whatever his past shortcomings, he now clearly does wish to participate properly in X’s life.
Section 60CC(3)(ca)
The remarks made immediately above have some applicability to this subsection. Nonetheless, as I understand it, the father has asserted without challenge that he pays child support (presumably as assessed) and also presumably at a low level, given the fact that his business is only in its early stages. The father has not fully discharged his obligations at all times, but this matter has already been commented on above.
Section 60CC(3)(d)
Significant additional separation from the mother is likely to be extremely difficult for X to cope with. He is really, in truth, only in the process of getting to know his father. Furthermore, whether rightly or wrongly, the mother will feel exceptionally anxious in the event that any significant increase in time were to be ordered. There is of course no question of rewarding unreasonable points of view and making them into a kind of self-serving criterion. Equally, however, it must be accepted that the mother, who is the primary carer, is vital to X, and anything that is going to cause her difficulty or anxiety is a factor that, as a matter of practical politics needs to be taken into consideration.
Section 60CC(3)(e)
This matter is given particular focus by the reality of where the parties live. As best I can see it on the map, the mother’s home is approximately 100 kilometres beyond (omitted). The father lives in Melbourne. It is a long journey just for each of them to get to (omitted). This is a serious and significant practical difficulty. The father has hinted vaguely that he will relocate closer to X’s residence but, in truth, there is nothing in the materials or in what he has said to the Court that would indicate that any relocation is likely to occur soon. There is of course expense involved in such travel and neither of these parties is wealthy. All of these matters are clearly relevant.
Section 60CC(3)(f)
There is no serious challenge to the mother’s capacity to look after X in a day-to-day sense. The father’s capacity to do so remains largely untested but, as Ms M pointed out, this is because the mother has created this chicken and egg problem. It is my view that Ms M’s characterisation is entirely appropriate.
Section 60CC(3)(g)
X’s personality does not emerge with sufficient clarity, wholly unsurprisingly given his age, for any assessment in any meaningful way to be made. The father struck me as lacking in insight, somewhat self-obsessed and clearly totally unaware of the extent to which his own misconduct (which he continued vividly, in truth, to deny) might operate upon the way the mother responds to him. He struck me as being, and I regret having to make such a finding, frankly somewhat strange. His correspondence style rather speaks for itself and indeed was wholly consistent with the impression that I formed of him in the Court.
As I have indicated, the mother struck me, notwithstanding her various concerns, as being also extremely irritated with the father and having a clear dislike of him.
Section 60CC(3)(h)
This is not relevant.
Section 60CC(3)(i)
The father’s attitude to the responsibilities of parenthood has been, as indicated earlier above, by no means entirely appropriate at all times. He absented himself early on in the piece and has been, to an extent, erratic in his participation. Nonetheless he has pressed his application through to trial, and clearly wants to have a relationship with X, albeit expressed at times in somewhat highfalutin and verbose terms. The father blames the mother for all his misfortunes, wholly inappropriately in my opinion, and this lack of insight is a difficulty because it impacts upon what his notion of parenting is. His references to the desirability of a united family from time to time, while sound in principle, ignore the practical realities of the position the parties are in.
The mother’s attitude towards parenthood is, in one sense, exemplary. She is devoted to her child and is his primary carer. Nonetheless her detestation (not too strong a word as I find) of the father leads her, in truth, to a view that it were better the father have as little as possible time with X. Indeed, I have formed the clear view that she would allow the father no time whatsoever if she thought she could. The father would put this as payback for his behaviour during the relationship. He might, in part, even be right. What he would ignore in making such an assertion, however, is that his own behaviour was lamentable during the relationship. He assaulted the mother and the child. It is scarcely surprising that she entertains a very anxious point of view about his behaviour in the future. It is important to remember in all aspects of this case that the Court is not ultimately, or even primarily, concerned with allotting blame between the parties, but trying to assess how X’s best interests can be met. The mother’s lack of desire to foment a relationship with the father is a matter that requires to be taken into consideration, even though one might feel it is scarcely surprising in the circumstances.
Section 60CC(3)(j)
This section is of course very important but has already, effectively, been dealt with above. There has undoubtedly been family violence, both within the broad definition contained in section 4AB of the Act, but even in simple terms of physical assault.
Section 60CC(3)(k)
It appears that there is a still an extant Intervention Order but quite what the status of the various appeals and other proceedings are is far from clear to me. There have certainly been Intervention Orders in the past and this forms part of the family violence background to which I have referred.
Section 60CC(3)(l)
These parties are neither of them wealthy. True it is that X is young, but, in my view, it is plainly extremely desirable to bring the proceeding to an end and give the parties a clear template with which to move forward. As counsel for the Independent Children’s Lawyer correctly submitted, if the father can show a change of circumstances (the most obvious being that he might move far closer to where X lives), then he would plainly be able to press any necessary further application. Nonetheless the circumstances of the parties as they presently stand seem, on the evidence, likely to continue for the foreseeable future, and the Court is therefore going to make orders designed to bring the matter to a conclusion in the light of those circumstances.
Section 60CC(3)(m)
There are no other additional relevant circumstances.
Conclusions
Bearing all of the above matters in mind, it is clear, in my view, that the recommendations for time set out by Ms M should be adopted. Time for X should increase slowly over a protracted period of time to four hours every fortnight. This will impose a burden on the father in terms of travel and expense, but if he loves his son as much as he says he does (and this is one aspect of his evidence I accept) then he will make the necessary arrangements to attend. It is not possible to progress the matter further, as the counsel for the Independent Children’s Lawyer rightly submits, because the future is simply not clear.
The mother should be ordered to undertake counselling to assist her with her anxiety. This will obviously help her, but in so doing will also, by diminishing her anxiety, provide X with a more settled and secure home environment which will be to his benefit.
It is plainly impracticable to contemplate the sort of regime that the father presses for, as set out in his most recent affidavit. To move to the periods of time he has in mind and the regime he has in mind, in circumstances where the child’s relationship with him is at such an early and still plastic stage, is just plainly utterly contraindicated. It is not consistent with the independent evidence of Ms M and I am not prepared to order it. The orders otherwise as proposed by the Independent Children’s Lawyer seem to be eminently sensible and should be made. I will additionally make the watch list order and order the mother to seek counselling to address her anxiety, as recommended by the Independent Children’s Lawyer. The Court will formulate orders consistent with these conclusions and they will of course be published, together with these reasons for judgment.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 31 March 2017
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