BEATTIE & DEMYAN

[2012] FamCA 916

FAMILY COURT OF AUSTRALIA

BEATTIE & DEMYAN [2012] FamCA 916

FAMILY LAW – CHILDREN – Best Interests of the Child -  Where orders were made to protect the child against the risk of psychological harm through his exposure to family violence committed by the father against the mother – where the father lacked contrition for his aggravated assault of the mother - where the mother has no willingness or ability to facilitate and encourage a close and continuing relationship between the child and the father and a long history of deliberate disobedience to orders – where the child had no contact with the father for fifteen (15) months - where the child’s primary attachment figure is the mother

FAMILY LAW – CHILDREN – With whom the child lives and spends time – where the child lives with the mother – where the child spends two (2) supervised hours on two (2) occasions each year with the father – where the child communicates with the father by cards and gifts on special occasions

FAMILY LAW – CHILDREN – Child’s name – where orders were made in former parenting proceedings providing for the child to bear the hyphenated surnames of both parties – no change warranted

Births, Deaths and Marriages Registration Act 1995 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 5, 16, 36, 38 and 42
Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA,62B, 64B, 65AA, 65D, 65DA, 65DAA, 65DAC, 65DAE and 69ZT
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)

Amador v Amador (2009) 43 Fam LR 268
B & B [2003] FamCA 274
Beattie & Demyan [2012] FamCAFC 112
B & K [2001] FamCA 880
Demyan & Beattie [2011] FamCA 155
Goode & Goode (2006) FLC 93-286
Marriage of Blanch (1998) 24 Fam LR 325
Marriage of JG & BG (1994) 18 Fam LR 255
McCall v Clark (2009) 41 Fam LR 483
Michaels v Commonwealth (2002) 124 FCR 473
MRR v GR (2010) 240 CLR 461.
NSW Bar Association v Somosi (2001) 48 ATR 562
Rogers v The Queen (1994) 181 CLR 251
Saffron v Federal Commissioner of Taxation (1991) 102 ALR 19

APPLICANT: Ms Beattie

RESPONDENT: Mr Demyan

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 2026 of 2009

DATE DELIVERED: 7 November 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 17, 18 & 19 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr I. Duane

SOLICITOR FOR THE APPLICANT: Boyd Olsen Lawyers

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms K. O'Rourke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The Application-Contravention filed by the father on 24 March 2011 is listed at 9.30 am on Wednesday 28 November 2012 for further procedural orders.

2. Orders 4-10 and 19-20 inclusive made on 9 March 2011 relating to the child R, born … April 2009, (“the child”) are discharged.

3. In order to facilitate implementation of Order 14 made on 9 March 2011:

   (a)Leave is granted to the father to forthwith approach the Registrar of the Family Court of Australia at Newcastle, and the Registrar is empowered, to sign all such documents on behalf of the mother as may be required to amend the child’s records under the Births, Deaths and Marriages Registration Act 1995 (NSW) and to cause a fresh birth certificate to issue for the child; and

   (b)Leave is granted to the father to provide to the NSW Registrar of Births, Deaths and Marriages sealed copies of:

   (i)The orders dated 9 March 2011; and

   (ii)These orders.

4. Unless otherwise agreed in writing, the parties shall take all reasonable steps to ensure that the child spends time with the father for two hours on the first Saturday in March and on the first Saturday in September each year.

5. For the purpose of implementing Order 4 hereof:

   (a)The time spent by the child with the father shall occur at and be supervised by staff at the Sydney Children’s Contact Centre situated at Level 13, 133 Liverpool Street, Sydney, or such other contact centre agreed between the parties in writing (“the supervisor”);

   (b)The parties shall forthwith register with, undertake all intake procedures required of them by, and comply with all reasonable directions of the supervisor;

   (c)Leave is granted to the parties to furnish to the supervisor sealed copies of these orders and the orders made on 9 March 2011;

   (d)The mother shall ensure the prompt delivery and the collection of the child to and from the supervisor;

   (e)If an occasion on which the child is due to spend time with the father is frustrated by the unavailability of the supervisor, illness of the child, or illness of the mother, the time that the child was due to spend with the father shall be made-up at another time as close to the original time as can be arranged; and

   (f)The father shall pay all costs of the supervisor.

6. Each of the parties shall take all reasonable steps to ensure that the child is able to communicate with the father in the following manner:

   (a)By the father being able to send letters, cards, and/or gifts to the child on or about dates proximate to his birthday and Christmas Day, and

   (b)By the mother promptly sending to the father:

   (i)Written acknowledgement of receipt of the father’s written communication, and

   (ii)Any letters, cards, photographs, or other written communication that the child wishes to be conveyed to the father.

7. For the purposes of implementation of Order 6 hereof the parties shall forthwith notify one another in writing, and thereafter keep one another notified in writing, of the postal address to which mail can be sent to them.

8. The parties are restrained from causing or permitting the child to hear any discussion by any person about incidents of violence involving members of the child’s family on or about 18 April 2010 and 7 September 2012.

9. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

10. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

11. Costs are reserved for 28 days.

12. Any and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2026 of 2009

Ms Beattie

Applicant

And

Mr Demyan

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. Only last year on 9 March 2011 this Court pronounced final parenting orders between the parties in respect of their only child, R (“the child”), who was born in April 2009 and is now three years of age.

2. Regrettably, one bout of litigation was not enough for the parties. Fresh proceedings were commenced by them both in ensuing months. The father was dissatisfied with the mother’s compliance with the orders made in March 2011, but the mother was dissatisfied with the very substance of the orders. Both parties now desire the Court’s re-consideration of final parenting orders for their child in light of developments since March 2011.

3. The mother wants to virtually eliminate the father from the child’s life and the father wants the child to live with him instead of the mother.

Background

1. The orders made in March 2011 provided for the mother to have sole parental responsibility for the child, for the child to live with the mother, and for him to spend time with the father on a graduated basis. The graduation entailed both an expansion of the time spent by the child with the father and the dispensation of supervision. Provision was also made for the child to communicate with the father by telephone.

2. A raft of other injunctive orders were made regulating the father’s consumption of alcohol, the parties’ denigration of one another, the surname to be used by the child, rectification of the child’s particulars under the Births, Deaths and Marriages Registration Act 1995 (NSW), and the mother’s completion of a post-separation parenting program.

3. The reasons delivered by the Court for the pronouncement of those orders comprised a stern warning about the mother’s compliance with the orders and the possible repercussions of her contravention of them, given that she had repeatedly failed to comply with earlier orders and brazenly threatened to breach any orders she found objectionable.[1]

   [1] Demyan & Beattie [2011] FamCA 155 at [20]-[23], [25], [69]-[70], [122], [137]

4. Almost immediately the orders were violated by the mother, albeit arguably with reasonable excuse, stimulating the filing of a contravention application by the father only weeks later on 24 March 2011. That application presently remains undetermined, since the evidence that would be adduced in both support and defence of it forms part of the evidence adduced by the parties in these substantive proceedings. The parties recognised that a multiplicity of suits was pointless and the Full Court agreed.[2]

   [2] Beattie & Demyan [2012] FamCAFC 112 at [9]

5. It is common ground the child spent time with the father on only a fraction of the occasions dictated by the orders made in March 2011.[3] The mother adduced evidence purporting to explain the breaches,[4] but the sheer number of breaches arouses suspicion about the veracity of her explanations. The medical certificates produced by the mother purporting to explain her inability to comply with the Court’s orders by reason of illness suffered by her or the child are wholly inadequate for that purpose.

   [3] First Family Report, paras 9-10; Mother’s affidavit, paras 16-34;

   [4] Mother’s affidavit, paras 14, 15, 17, 20, 23-34

6. It is uncontentious that the child has not spent any time with the father since 30 August 2011,[5] apart from their brief interaction under the observation of the Family Consultant on 24 April 2012.[6]

   [5] First Family Report, para 10; Mother’s affidavit, paras 22, 35

   [6] Second Family Report, para 33

7. Nor has the child had any communication with the father since August 2011.[7] Although that anomaly was not expressly explained by either party, inferentially it was because of the mother’s deliberate decision to sever all contact between the child and the father as a consequence of an incident on 7 September 2011.

   [7] First Family Report, para 10

8. Late on that evening the father assaulted the mother at her home in the presence of the child. The mother sustained severe bruising and both she and the child were understandably highly distressed. The father was convicted of the assault. Even though he appealed his conviction, the appeal was dismissed and the conviction confirmed. The father was sentenced by way of a good behaviour bond for 18 months and is the subject of a family violence order protecting the mother until its expiration in November 2013.[8]

   [8] Mother’s affidavit, paras 36-50; Father’s first affidavit, para 46

9. Several weeks after the assault, on 25 October 2011, the mother filed an Initiating Application for fresh interim and final parenting orders as a consequence of the assault. As an interim measure she sought suspension of the orders made in March 2011. The mother’s interim application was dismissed in December 2011 and her appeal against that decision was dismissed in June 2012.[9] Although the orders of March 2011 remained in force, the mother still persists in her refusal to comply with them.[10]

   [9] Mother’s affidavit, paras 51-54; Father’s first affidavit, para 43

   [10] Father’s first affidavit, para 43

10. The essential issues in the litigation were therefore, firstly, whether the father poses an unacceptable risk of harm to the child through exposure of the child to family violence thereby justifying his elimination from or marginalisation in the child’s life, and secondly, whether it is feasible to remove the child from the mother’s care to live with the father so that he might enjoy a meaningful relationship with both parents, because whilst ever he lives with the mother she will deliberately thwart his relationship with the father.

Proposal and primary evidence of the mother

1. The mother began the hearing pressing for the orders set out within her Amended Application filed on 8 June 2012, which provided for:

   a)Her to have sole parental responsibility for the child (Order 1);

   b)The child to live with her (Order 2);

   c)A declaration that the child spend no time and not communicate with the father (Order 3); and

   d)Permission for her to change the child’s surname from “Beattie-Demyan” to “Beattie” (Order 4).

2. However, having heard the final submissions of the Independent Children’s Lawyer, the mother was ultimately prepared to submit to the orders proposed by the Independent Children’s Lawyer.

3. The mother relied upon affidavits sworn by her and the maternal grandmother, both of which were filed on 31 August 2012.

4. The father initially made an application pursuant to s 69ZT(3) of the Family Law Act1975 (Cth) (“the Act”) for the rules of evidence to apply so that he could take objections to the mother’s affidavit, but abandoned the application when he conceded he could not establish the existence of exceptional circumstances. As a result, the provisions of s 69ZT(1) applied to the evidence adduced by the parties.

Proposal and primary evidence of the father

1. The father pressed for the orders set out within his Amended Response filed on 31 August 2012.

2. Many of the orders sought by the father were either inconsistent or unenforceable, but his proposal was essentially that:

   a)All former orders be discharged (Order 13);

   b)He have sole parental responsibility for the child (Order 2);

   c)The child live with him (Order 3);

   d)The child spend time with the mother on a gradually escalating basis (Orders 14, 16-19), subject to proof of her completion of a suite of therapies (Orders 7-10); and

   e)Permission be granted for him to change the child’s surname to “Demyan” (Orders 4, 6);

3. In support of his proposal the father relied upon his three affidavits filed on 31 August, 5 September, and 10 October 2012 and the affidavit of the paternal grandmother filed on 29 June 2011.

Proposal of the independent children’s lawyer

1. The Independent Children’s Lawyer was frank about his position from the outset. He relied upon the recommendations of the Family Consultant and therefore proposed that the child continue to live with the mother.

2. The Independent Children’s Lawyer tendered a minute of the orders he proposed immediately prior to final submissions.[11] In essence, his proposal provided for:

   a)The father to have sole parental responsibility in respect of the registration of the child’s proper name if the mother fails to rectify the child’s registered details (Orders 11, 12), but otherwise the mother to have sole parental responsibility for the child (Order 1);

   b)The child to live with the mother (Order 2);

   c)The child to spend time with the father briefly on two occasions per year under supervised conditions at a contact centre (Orders 3, 4, 6);

   d)The child to communicate with the father occasionally in writing under restricted circumstances (Order 5, 6); and

   e)Retention of the child’s surname in the same terms decided by the Court in March 2011 (Order 10).

   [11] Exhibit ICL1

The family consultant

1. The Family Consultant prepared two Family Reports. The first was dated 28 February 2012, but was incomplete because the mother professed inability to attend her appointment with the child. A second report dated 27 April 2012 was therefore prepared.

2. The Family Consultant was cross-examined, during which he adhered to and elaborated upon the contents of his reports. I generally accept his evidence, which was reasoned, logical and persuasive.

Relevant legal principles

1. Orders in respect of children are regulated under Part VII of the Act, wherein the meaning of a “parenting order” is defined (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.

6. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

8. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Best interests of the child

1. Since these proceedings were commenced before 7 June 2012, the amendments to the Act, and in particular to s 60CC thereof, wrought by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 do not apply (see Schedule 1, items 44 and 45).

Best interests – primary considerations

Section 60CC(2)(a)

1. There is no doubt the child is primarily attached to the mother, with whom he has lived continuously since his birth. The Family Consultant observed the warmth of their interaction.[12]

   [12] Second Family Report, paras 27-31

2. At the time of the Family Consultant’s appointment in April 2012 the child was barely three years of age. The Family Consultant considered he had a “very close primary attachment” to the mother and was then still in a “very critical period of psychological attachment” to her.[13]

   [13] Second Family Report, paras 33, 37

1. Indisputably, the child will continue to derive benefit from his relationship with the mother. The measure of a meaningful relationship is its importance, significance and value to the child (see McCall v Clark (2009) 41 Fam LR 483 at 507-510). The child’s relationship with the mother is presently the most important, significant and valuable inter-personal relationship in his life and it cannot safely be disturbed.

2. The child’s relationship with the father is not as strong. The parties separated before the child was born and the father has had to struggle to maintain his relationship with the child in the face of the mother’s oppositional behaviour.

3. The child clearly recognises the father and seems to enjoy spending time with him. So much is evident from the edited video footage compiled by the father of some time they spent together in the period between March and August 2011, which video was tendered as an exhibit.[14]

   [14] Exhibit F2

4. The father gave the same video to the Family Consultant, who played the video to the mother and child at their consultation in April 2012. The child’s demeanour was generally neutral while watching the video, but he did laugh responsively to some footage of himself laughing whilst being tickled by the father.[15]

   [15] Second Family Report, para 30

5. Prior to the child’s re-introduction to the father in the observation session with the Family Consultant in April 2012, he had last spent time with the father on 30 August 2011, but had last seen the father on 7 September 2011 when the father assaulted the mother in the child’s presence.

6. The child was quite passive about the idea of re-introduction to the father. He neutrally ignored the idea when first told of it, but did not oppose seeing the father when directly asked. By that stage the child had already been at the offices of the Family Consultant for several hours, he was becoming bored and frustrated, and he was already upset about his separation from the mother, so the circumstances of his re-introduction to the father were not ideal.[16]

   [16] Second Family Report, paras 15, 29, 31

7. The father tried admirably but vainly to settle the child. His placatory attempts to engage the child with toys, a birthday cupcake, an embrace, and mandolin music all failed. The child’s level of distress remained unaltered until he was re-united with the mother, who was able to soothe him quite soon.[17]

   [17] Second Family Report, para 31

8. In such circumstances the Family Consultant found it difficult to express any definitive opinion about the child’s current attachment to the father. The Family Consultant considered it likely that the child had started to develop a “good attachment” with the father prior to the severance of their interaction in 2011, but he expressed some important caveats to any assumption about the current attachment between the child and father.

9. Firstly, he considered the former attachment would only have safely supported the child spending “long periods of daytime” with the father. Inferentially, the Family Consultant did not regard the level of their former attachment as sufficient to support the child’s residence with the father. Secondly, he opined their estrangement since August 2011 is “extremely likely” to have resulted in “further disruption to an already disrupted attachment process”.[18] He considered the disruption of attachment would also have been compounded by the child witnessing the father’s violent assault of the mother.[19]

   [18] Second Family Report, para 40

   [19] Second Family Report, para 40

10. The disparate attachments between the child and the parties are obviously an important consideration in circumstances where the child’s residence is in issue.

Section 60CC(2)(b)

1. The issues of both “abuse” and “family violence” featured prominently in these proceedings. There was considerable discrepancy in the quality of the evidence relating to each concept so I will deal with the issues separately.

   Abuse

2. The mother deposed to facts which she contended obliged the Court to conclude the father had physically abused the child and thereby find that the father posed an unacceptable risk of such abuse in future.

3. The mother alleged the child returned from a visit with the father on 11 August 2011 with bruising on his body.[20] She also alleged the child exhibited violent behaviour, which she presumably attributed to behaviour modelled by the father.[21] Her evidence was corroborated by the maternal grandmother.[22] The mother also alleged the father separately assaulted the child when he assaulted her on 7 September 2011.[23]

   [20] Mother’s affidavit, para 69

   [21] Mother’s affidavit, para 70, 72, 74

   [22] Affidavit of maternal grandmother, paras 4, 8, 14, 15

   [23] Mother’s affidavit, para 39; Exhibits M1 and M2

4. This is an appropriate point at which to comment upon the reliability of the mother’s evidence. The mother’s willingness to lie when it suits her was incontrovertibly proven in the last proceedings,[24] and so it proved again in these proceedings. Against a background of her egregious contravention of the orders made in March 2011, the mother surprisingly said in cross-examination she would henceforth comply with any orders made by the Court, but then only moments later contradicted herself by responding to the father’s plaintive requests for them to compromise on orders for the child to spend time with him “You are going nowhere near him [the child]”.

   [24] Demyan & Beattie [2011] FamCA 155 at [100]

5. The maternal grandmother was also a contrary and unsatisfactory witness. She was venomous with the father and perfunctory with the Independent Children’s Lawyer. Despite alleging the child hid in fear from a car that looked like the father’s car,[25] she confessed she did not know the type of car driven by the father and could not recall the colour of the car she observed the child to hide from. Although she deposed that the child acted out and hit her and the mother,[26] she said in cross-examination she could not remember any of the circumstances of it. She deposed that the child stopped that behaviour,[27] but in cross-examination she said she could not remember when the child stopped spending time with the father or when his behaviour changed, so her initial implication of a correlation between the two events was baseless.

   [25] Affidavit of maternal grandmother, para 7

   [26] Affidavit of maternal grandmother, para 14

   [27] Affidavit of maternal grandmother, para 15

6. Although the mother and maternal grandmother thought the child’s bruising in August 2011 was so significant it demanded they give evidence about it at the trial, the mother conceded no photographs of the injuries were available to adduce in evidence and she did not report the child’s suspected abuse to any authority. Such concessions were startling because they each knew the importance of proving the mother’s injuries caused by the father with graphic photographs, copies of which were annexed to their affidavits[28] and originals of which were later tendered as part of an exhibit.[29] Even more bizarrely, the mother admitted permitting the child to return to the father on an unsupervised basis on four more occasions in the weeks immediately following her observation of that bruising on the child’s body.[30] I conclude that either the child had no bruising at all, or if he did, the mother did not genuinely attribute it to any abuse by the father and is now disingenuously relying upon it for tactical purposes.

   [28] Mother’s affidavit, para 43; Affidavit of maternal grandmother, paras 9-11

   [29] Exhibit M4

   [30] Mother’s affidavit, para 22

7. The mother conceded that the child’s errant behaviour had improved over the “last few months”.[31] Given her affidavit was sworn in late August 2012, it follows she was dating the improvement in the child’s behaviour to around May 2012, but the child had not seen the father since the assault in early September 2011. The evidence does not fairly permit any inference that the child’s errant behaviour for many months between September 2011 and May 2012 was attributable to the effects of his intermittent exposure to the father between March and September 2011, which the mother was eventually impelled to admit in cross-examination.

   [31] Mother’s affidavit, para 75

8. In any event, the mother terminated the child’s consultations with his psychologist in August 2011,[32] from which it can and should be imputed that the child’s behaviour from that time on was not sufficiently concerning to justify any clinical intervention.

   [32] Mother’s affidavit, para 74

9. On the available evidence, I reject any suggestion that the child’s unruly behaviour was linked to any conduct of the father.

10. The mother was also drawn to the concession in cross-examination that she said nothing to the Family Consultant in April 2012 about the child’s bruising or his unruly behaviour. Had those matters been of genuine concern to the mother there is little doubt she would have raised them as an issue for his consideration.

11. As for the child’s involvement in the father’s violent assault of the mother on 7 September 2011, the mother conceded the child had not been physically injured, despite her expectation of his injury because of the force with which she alleged he had been knocked to the ground. Significantly, despite the mother’s allegation of the father’s assault upon the child, the father was never charged with any offence of that ilk so there has been no finding of fact against him by any other court on that issue. The undoubted emotional disturbance suffered by the child as a result of that incident will be addressed in the context of family violence.

12. The mother’s allegations of abuse, or the risk thereof, are antithetical to the gentle and loving way in which the father was observed by the Family Consultant to treat the child and are also inconsistent with the nature of their interaction depicted on the video footage of their visits together. The allegations are also flatly contradictory with the finding in the former litigation that the father posed no risk of physical abuse to the child.[33] In my view, that finding remains efficacious.

    [33] Demyan & Beattie [2011] FamCA 155 at [61]

13. I accept the submissions of both the Independent Children’s Lawyer and the father that he poses no risk of abuse to the child.

    Family violence

14. The occurrence of family violence is a much more troubling feature of the parties’ relationship.

15. In April 2010, the parties and both pairs of grandparents participated in a violent melee which resulted in serious physical injuries to several of them. That incident, which the child fortunately did not witness, was the subject of findings in the former litigation.[34]

    [34] Demyan & Beattie [2011] FamCA 155 at [12]-[17], [62]

16. A finding was also made in the former proceedings about the father’s propensity to intimidate others to achieve his ends.[35] The validity of that finding was proven by evidence of fresh events in these proceedings.

    [35] Demyan & Beattie [2011] FamCA 155 at [104]

17. In April 2012, over an unrelated incident,[36] the father acted towards police in an intimidating way.[37] At about the same time the father abused and intimidated a doctor, medical staff, and patients during an attempt to obtain the child’s medical records.[38] Even though such aggressive behaviour towards third parties is incapable of definition as “family violence”, it only serves to compound concern about the father’s commission of family violence.

    [36] Exhibit M5

    [37] Exhibit M6

    [38] Exhibits M7 and M8

18. The facts which are pivotal to, and necessitate a finding that, the father constitutes a risk of emotional harm to the child through exposure to family violence pertain to the assault which occurred on 7 September 2011.

19. Late that evening the father hid in the mother’s yard and savagely assaulted her when she arrived home with the child. The father knocked the mother to the ground from behind and then repeatedly kicked her whilst she lay prone. The child was spilled from her grasp by the force of the attack, which attack the child witnessed. The mother sustained gross bruising, which even the father admitted was “horrific”.

20. The father was recognised by both the child and the mother as the perpetrator, even though he fled the scene in an attempt to avoid detection. He was later arrested, charged and convicted of the assault upon the mother. His appeal against conviction and sentence was unsuccessful. Even though there was some debate about whether the father ultimately appealed against only the severity of the sentence,[39] the debate was arid. Irrespective of whether the father continued to press his appeal against both his conviction and sentence, as he maintained, the appeal was dismissed.

    [39] Exhibit M3

21. The conviction is a decision in rem which is conclusive proof of the father’s commission of the offence (see Saffron v Federal Commissioner of Taxation (1991) 102 ALR 19 at 21; Rogers v The Queen (1994) 181 CLR 251 at 274; NSW Bar Association v Somosi (2001) 48 ATR 562 at [80]; Michaels v Commonwealth (2002) 124 FCR 473 at [31]-[49]). It is therefore neither permissible nor advisable for this Court, in application of the lesser civil standard of proof, to inquire behind the conviction.

22. The father has never wavered in his denial of responsibility for the assault. He maintained his innocence before the State courts at first instance and on appeal, he told the Family Consultant in February 2012[40] and again in April 2012[41] that he was not guilty, he deposed to his innocence in his affidavit,[42] and he held to his denials in cross-examination.

    [40] First Family Report, paras 13, 24

    [41] Second Family Report, para 25

    [42] Father’s first affidavit, para 46

23. Of course, the father’s denial of guilt is repugnant to his conviction. Since I must and do assume the conviction to be correctly recorded, it necessarily follows that the father’s denial of guilt is disingenuous.

24. As the Family Consultant unremarkably observed, any person who is capable of such savagery and refuses to acknowledge responsibility and express remorse is unlikely to change their behaviour patterns. The first step of rehabilitation is admission of fault and expression of contrition. It is trite to observe, but past behaviour is a reliable predictor of future behaviour.

25. The father’s denial of responsibility for the assault of the mother was particularly contumelious because he asserted her identification of him as the culprit was a vindictive act of spite, or a “pantomime” as he described it.[43] His failed defence of the charge was not apparently conducted on the basis that the mother had honestly mistaken him for the culprit. His lie by denying responsibility was therefore compounded by his lie that the mother was lying.

    [43] Father’s first affidavit, para 46

26. The risk of the father’s future commission of family violence is unacceptably high because he is either in denial about his propensity to do so, or alternatively, notwithstanding his awareness of the propensity he is unwilling to address the problem.

27. The detriments of a child’s exposure to family violence are well known and were explained by the Family Consultant. Children who grow up in a climate of violence and dominance are exposed to an unacceptable model of family relationships. They can suffer insecurity, fear, unhappiness, anxiety, and hyper-vigilance from witnessing abusive behaviour by a parent, which is damaging and threatens their emotional development (see Marriage of JG & BG (1994) 18 Fam LR 255 at 261; Marriage of Blanch (1998) 24 Fam LR 325 at 333-336; B & K [2001] FamCA 880 at [32]; B & B [2003] FamCA 274 at [33]-[37]; Amador v Amador (2009) 43 Fam LR 268 at [95]).

28. The Family Consultant said he expected the child would have been “terrified” by the assault he witnessed the father perpetrate upon the mother, which opinion is vindicated by reliable evidence that the child was emotionally damaged by the event. In May 2012, many months after the assault in September 2011, the child’s pre-school teachers made contemporaneous notes of the child’s report about the father striking the mother.[44] The child also reported being hit by the father, but since he had not seen the father for many months, that was unlikely to be a true report of historical events. Rather, it is more likely evidence of the child dwelling on the trauma he experienced through witnessing the assault upon the mother and wondering how the father’s violence may affect him.

    [44] Mother’s affidavit, paras 77-78, Annexure P

29. Inevitably, the evidence obliges the Court to take a course that will protect the child against the risk of psychological harm through his exposure to family violence committed by the father.

Best interests – additional considerations

Section 60CC(3)(a)

1. The child is only three years of age. He presented to the Family Consultant as a generally quiet and shy boy who had developed normally within expected parameters for his age.[45]

   [45] Second Family Report, para 26

2. His views about his parenting arrangements were not sought by the Family Consultant, presumably because of his tender age.

Section 60CC(3)(b)

1. The nature of the child’s relationships with the parties has already been addressed.

2. The child’s relationships with the maternal grandparents are presumably strong ones, as he has lived in their home for all his life.[46]

   [46] Second Family Report, para 9

3. There is no evidence about the quality of the child’s relationships with the mother’s adult children from a prior relationship.[47]

   [47] Second Family Report, para 19

4. It is difficult to comment upon the relationship between the child and paternal grandmother. Some brief interaction between them is depicted on the video tendered by the father, but the brevity of the footage only permits the Court to conclude the child appeared to warmly interact with the maternal grandmother. As is the case with the father, the child has not seen or communicated with the maternal grandmother for some 15 months.

Sections 60CC(3)(c), (4)

1. One aspect of the mother’s evidence in both the former and present proceedings was undeniably reliable; her promise to defy orders and eliminate the father from the child’s life. There can be no question that the mother has no willingness or ability to facilitate and encourage a close and continuing relationship between the child and the father. Rather, she has done everything she conceivably could to prevent it.

2. The mother appears to be unmoved by the warning issued to her in the reasons delivered simultaneously with the orders made in March 2011. Her multiple and repeated contraventions of those orders have been just as bold as her contraventions of the orders made before March 2011.

3. Most notably, the mother failed to ensure the child spent time with the father on any more than a fraction of the occasions it was due to occur.

4. Between March and September 2011 the mother attempted to explain her non-compliance with the orders by illness suffered by either her or the child, but I reject her explanation as spurious. A selection of instances will suffice to prove the point:

   a)The mother said she was unable to drive in March 2011 because of an operation which impaired her vision and her family were unable to assist her, preventing her from taking the child to the changeover venue,[48] but her impaired vision and alleged lack of family assistance did not preclude her from travelling from B Town to C Town to receive the judgment in the last proceedings on 9 March 2011.

   b)The mother said the child’s illness in late May 2011 precluded him from spending time with the father,[49] but the annexed medical certificate allegedly verifying the illness related to the mother not the child.[50]

   c)Many instances of alleged illness are unverified by any medical certificate. The mother could not recollect any details to lend credibility to her assertion that she or the child was ill on such a large number of occasions.

   d)The child did not spend time with the father on a particular date because the parties needed to attend a State court.[51] The father wrote to the mother proposing a change of date,[52] but the mother admitted she did not reply and could not explain why.

   e)The contents of all the medical certificates produced by the mother to support the alleged illnesses are terse and devoid of any explanatory detail.[53] They prove nothing other than that the mother and child attended a doctor’s surgery. They say nothing of the illness, its severity, or why it precluded the child being presented to the father. If the mother and child could attend a doctor’s surgery to obtain a medical certificate, they were both likely well enough to attend the changeover venue. The father was just as capable as the mother to care for the child whilst he suffered from any transitory illness.

   [48] Mother’s affidavit, paras 13-14

   [49] Mother’s affidavit, para 23

   [50] Mother’s affidavit, Annexure D

   [51] Mother’s affidavit, para 28

   [52] Father’s first affidavit, Annexure F2

   [53] Mother’s affidavit, Annexures C, D, F, G, H

1. The mother was formerly consulting a psychologist.[54] The clinical notes of that psychologist made in August 2011 contain an admission by the mother to the psychologist that she was “not complying with visitation for [the child’s] father”.[55] That was an unambiguous admission of deliberate disobedience which she did not see fit to disclose in her evidence.

   [54] Mother’s affidavit, paras 63-64

   [55] Exhibit F1

2. The mother implied her compliance with the orders was frustrated by her not having a car,[56] but she lives with the maternal grandparents and was forced to admit in cross-examination that she has access to one of the maternal grandmother’s two cars.

   [56] Mother’s affidavit, para 89

3. Once the father assaulted the mother in September 2011 the mother decided that was sufficient reason in itself to terminate the child’s interaction with the father. When asked in cross-examination about the termination of parenting arrangements the mother said to the father words to the effect it was “because of what you have done – the assault”. She admitted she formed the view that there was no benefit at all for the child in having a relationship with the father, and further, that her view has never since altered. The mother steadfastly refused to implement the orders despite her unsuccessful attempts to suspend the operation of those orders. When her interim application was refused, both at first instance and on appeal, she maintained her refusal to implement the orders in full knowledge that the Court, on the evidence available, did not endorse her position.

4. The mother has no intention of allowing the child to enjoy a relationship with the father. Her voice was saturated with spite when she said to the father from the witness box words to the effect “You are an abusive nut job. You are the lowest form there is”. Shortly thereafter she informed the father he was “going nowhere near” the child.

5. The mother’s belligerence was also demonstrated in other ways.

6. She refused to complete the post-separation parenting course she was ordered to undertake.[57] The mother’s carefully worded evidence about participation in the course was deceitful,[58] as was her assertion to the Family Consultant that she completed the course.[59] She was forced to concede that although she had started the course, she had only completed half of it. The mother attributed her abandonment of the course to “work and other commitments”, but the mother only works a maximum of 15 hours per week at night.[60] When asked about what she had learned in that part of the course she had attended the mother said she had learned “a lot”. When asked if she could elaborate she simply said “no”. She could not remember a single topic covered in the course. Obviously, the mother either learned nothing of value or is unprepared to implement any of what she did learn.

   [57] Order 18 made on 9 March 2011

   [58] Mother’s affidavit, para 90

   [59] Second Family Report, para 21

   [60] Mother’s affidavit, para 88

7. The mother admitted she had also failed to rectify the child’s name and paternity records as ordered.[61] Although the mother alleged she ensures the child is nonetheless known by the surname “Beattie-Demyan”,[62] consistently with the orders made in March 2011, that was untrue. The child is enrolled at his pre-school in the surname “Beattie”,[63] and he is known by the surname “Beattie” by both Medicare[64] and his medical general practitioner.

   [61] Order 14 made on 9 March 2011; Mother’s affidavit, para 91

   [62] Mother’s affidavit, para 91

   [63] Second Family Report, para 32

   [64] Exhibit F4

8. By comparison, I am satisfied the father has the willingness and capacity to facilitate a close and continuing relationship between the child and the mother. There was no suggestion to the contrary.

Section 60CC(3)(d)

1. The child will encounter little change in moving from the present situation, in which the father is eliminated from his life, to a new parenting arrangement under which he spends minimal and infrequent time with the father. It was not suggested by anyone that the child could not cope with the new regime proposed by the Independent Children’s Lawyer, adopted by the mother.

2. The alternative regime, involving reversal of his residence, would cause enormous disruption to the child. The father acknowledged the child would “kick and buck a bit” if that occurred, but that is clearly an understatement of the significance of such a proposed change for the child.

Section 60CC(3)(e)

1. There is little practical difficulty or expense in implementing the parenting regime proposed by the Independent Children’s Lawyer and adopted by the mother. The parties both said on oath they could and would comply with it.

2. Similarly, there is little practical difficulty or expense involved in implementing the orders proposed by the father.

Section 60CC(3)(f)

1. The mother adduced evidence of the child using profane and hateful language upon his past returns from the father,[65] presumably to try and prove the father’s influence upon the child in that way is demonstrative of the father’s impaired parenting capacity. The necessity to infer the mother’s purpose in adducing such evidence arises because the father was not cross-examined about it and the mother made no final submission about it.

   [65] Mother’s affidavit, paras 70, 75; Affidavit of maternal grandmother, para 5

2. I do not accept the evidence of the mother or the maternal grandmother about the child’s use of such language in August 2011 because the video footage encompassing the child’s play with the father up until that time demonstrated the child only had rudimentary language skills, making it improbable he could formulate the profane sentences alleged by the mother.

3. The child was unable to say the word “flower” and was barely able to articulate words such as “pig”, “egg”, “cat” and “sheep” when recited to him from a book for his repetition. It is consequently improbable the child could have said unprompted “stop, shut up, fuck you, kill you, hate you” as the mother alleged.[66]

   [66] Mother’s Affidavit, para 70

4. I am satisfied the father has the capacity to provide for the child’s physical and intellectual needs. However, he is not equipped to properly cater to the child’s emotional needs, as evidenced by his dreadful assault of the mother in the child’s presence.

5. The mother similarly has the capacity to provide for the child’s physical and intellectual needs, but she too cannot properly fulfil all of the child’s emotional needs. Her single-minded mission to eliminate the paternal influence in the child’s life is a serious flaw in her parenting capacity.

Section 60CC(3)(g)

1. No aspect of the maturity, sex, lifestyle or background of the parties or the child was submitted to be influential in the outcome of these proceedings.

Sections 60CC(3)(h), (6)

1. Neither the child nor the parties are Indigenous Australians.

Sections 60CC(3)(i), (4)

1. The parties’ attitudes to the child and the responsibilities of parenthood have already been addressed in most relevant respects.

2. However, something more needs to be said of the father’s irresponsible attitude to the payment of child support. When the last proceedings were determined in March 2011 the father was in arrears with child support payments by an amount in excess of $7,000.[67] He is now in arrears by more than $20,000.[68] He currently pays only $22 per week in child support, which sum is deducted directly from his Centrelink payment. Even though the father owns his own home and two cars he unconvincingly professed an inability to pay any more child support or reduce any of the arrears.

   [67] Demyan & Beattie [2011] FamCA 155 at [86]

   [68] Mother’s affidavit, para 84

Section 60CC(3)(j)

1. There is a current family violence order in force. It was made in November 2011 following the father’s conviction for the assault upon the mother in September 2011. The order is in force until November 2013.[69]

   [69] Mother’s affidavit, para 49

2. The order is for the protection of the mother, but also encapsulates the protection of the child because he is in a domestic relationship with the mother within the terms of the State legislation (see ss 5, 16, 36, 38, and 42 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)).

3. The terms of the family violence order are consistent with the parenting orders because it permits the father to interact with the mother and child “for any purpose permitted by an order…under the Family Law Act”.[70]

   [70] Mother’s affidavit, Annexure J

Section 60CC(3)(k)

1. The issue of family violence has already been canvassed under s 60CC(2)(b) of the Act. There is nothing to add.

Section 60CC(3)(l)

1. The parties have proven themselves to be serial litigators. There is no evidence at all to indicate that the prospect of further litigation is reduced by making orders more closely aligned with those proposed by the father or with those proposed by the Independent Children’s Lawyer and mother.

Section 60CC(3)(m)

1. Both parties sought to re-agitate the issue of the child’s surname.

2. Firstly, it is instructive to appreciate that nothing has changed. Neither party adduced any evidence which was materially different from that adduced in respect of the issue in the last proceedings, which led to the decision to mandate use of the surname “Beattie-Demyan” for the child.

3. I accept the evidence of the Family Consultant that the previous orders about the child’s surname should be retained.[71] The Family Consultant elaborated in cross-examination that retention of the surname “Beattie-Demyan” will afford the child the benefit of knowing that his paternal heritage counts. Enabling the mother to use the surname “Beattie” would only assist her quest to eradicate the father from the child’s life. That is not in the child’s best interests.

   [71] Second Family Report, para 35

4. Nor is there any basis to permit use of the surname “Demyan” for the child. The father failed to adduce any evidence or make any submission about why such a change was warranted.

5. No other fact or circumstance was submitted to deserve attention in the determination of the proceedings.

Parenting orders

1. The presumption of equal shared parental responsibility does not apply because of the finding of family violence (s 61DA(2)).

2. In the former proceedings the conclusion was reached that the parties could not have equal shared parental responsibility for the child. The validity of that decision has been vindicated by the evidence in these proceedings. The parties are incapable of communicating rationally with one another.

3. Parental responsibility can only logically be allocated to the party with whom the child lives, as the Family Consultant observed,[72] so attention must turn to that issue.

   [72] First Family Report, para 29

4. The factors which influence a decision for the child to continue living with the mother are, firstly, the child’s primary attachment to her and his likely distress in response to being wrenched from her care to live with the father, secondly, the risk of the child’s exposure to further family violence committed by the father and the psychological harm he would suffer through such exposure, and thirdly, the father’s concession in cross-examination that his deepest desire is for the child to remain living with the mother and for the child to spend time with him.

5. The factor which influences a decision for the child to live with the father is the mother’s stubborn insistence about elimination of the father from the child’s life. It is almost certain the child will be unable to enjoy any relationship with the father whilst ever he lives with the mother, whereas if he lives with the father he can enjoy relationships with both parents.

6. In aggregation, the former factors carry greater weight than the countervailing latter factor. The child must therefore continue to live with the mother. That was the unequivocal recommendation of the Family Consultant,[73] to which recommendation he adhered even when informed of the mother’s persistent refusal to comply with Court orders in pursuit of her incorrigible desire to exclude the father from the child’s life. In his opinion, that was simply another disadvantage with which the child had to contend, rather than a factor which offset the disadvantages caused for him by the father.

   [73] Second Family Report, paras 42-43

7. The question then arises as to what, if any, orders should be made for the child to spend time and communicate with the father.

8. In final submissions the mother expressly adopted the orders proposed by the Independent Children’s Lawyer. During her earlier cross-examination the mother told the Independent Children’s Lawyer she would comply with orders requiring her to take the child to a contact centre twice each year to spend supervised time with the father. Somewhat surprisingly, that was the type of order the mother originally proposed in her Initiating Application filed in October 2011, before she later sought the complete elimination of the father from the child’s life in her Amended Application filed in June 2012.

9. The mother also said in cross-examination she would comply with orders permitting intermittent written communication between the child and the father, orders requiring her provision of the child’s school reports to the father, and orders requiring her provision to the child of the father’s contact details if and when asked by the child.

10. I do not believe the mother about her willingness and intention to comply with such orders, but even if the mother does fulfil her promise of compliance, I expect her compliance will only be transitory; probably lasting only until she believes the father lacks the motivation to prosecute her contravention or until she does not care whether he does or not.

11. The mother is impervious to the evidence of the Family Consultant about the deleterious long-term consequences for the child in having the father eliminated from his life. The evidence though was clear. The child is at significantly increased risk of psychological damage later in his life. If that harm eventuates for the child, the mother will have to live with the knowledge she is largely responsible for it.

12. Even though I disbelieve the mother’s commitment to them, orders are made consistently with those proposed by the Independent Children’s Lawyer and adopted by her. Any contravention of such orders by the mother will be another example of her mendacity.

13. I am not prepared to make orders precluding the child from spending any time or communicating at all with the father, as the mother proposed until literally the last moments of the trial. To do so would make the Court complicit in her vengeful crusade against the father.

14. Unsurprisingly, the father acknowledged his willingness to comply with orders allowing only very restricted interaction between him and the child, even though that was not his preference. He said he would travel to “an active volcano and crawl down it” if that was what was necessary to maintain the child’s connection with him.

15. At the Independent Children’s Lawyer’s suggestion, the contact centre to be used is situated in the Sydney CBD. The Court was informed no local contact centre would provide its services in the manner envisaged by the Independent Children’s Lawyer and a venue in the Sydney CBD offered the additional attraction of ease of public transport connections.

16. I accept the Family Consultant’s opinion that it was “highly unlikely” any orthodox parenting regime, such as that which applied under the orders made in March 2011, could operate successfully for this family in the future. That was the outcome the father most desired, but the mother simply will not comply, as she has repeatedly proven. Orders to that effect would merely invite further contravention applications and another application to review the substantive parenting orders, so nothing would be solved. The parties would find themselves back in the same predicament they are now.

17. The best course is to modify the orders made in March 2011 only as necessary to address current circumstances. The orders made in March 2011 that remain apposite are retained. Only those that are no longer appropriate are discharged.

18. One of the retained orders requires the mother to facilitate the father’s acquisition of copies of the child’s school reports.[74] No such order was ultimately sought by the Independent Children’s Lawyer, apparently because of the Family Consultant’s opinion that it would afford no benefit to the child. It may not afford benefit to the child, but it causes him no detriment either. The mother said she would comply with such an order and I expect the father would like notification of the child’s progress, given the extent to which he is now marginalised in the child’s life.

    [74] Order 16 made on 9 March 2011

19. The former order requiring the mother’s completion of a post-separation parenting program is not discharged either.[75] It would be bizarre for the Court to discharge a valuable educational order, previously thought warranted, simply because of a litigant’s recalcitrance to accept the education.

    [75] Order 18 made on 9 March 2011

20. The order enabling written communication does not provide for the mother to vet the father’s correspondence with the child. Allowing the mother to exercise such unfettered discretion would almost surely result in the child receiving none of the father’s correspondence. The order requires the mother to acknowledge receipt of the father’s correspondence so that the father has an unimpeachable record of his correspondence reaching the mother. If she fails to pass it on to the child, once he matures he may see fit to inquire why.

21. The father indicated his desire to keep alive the Application-Contravention he filed on 24 March 2011 until after the determination of these proceedings, presumably to keep open the option of prosecuting it. That Application is therefore listed to a date several weeks hence for further procedural orders.

I certify that the preceding one hundred and thirty-six (136) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 7 November 2012.

Associate:

Date:  7 November 2012

   Father’s first affidavit, paras 6-7, 30