BERRY & DURAND

[2019] FamCA 277

FAMILY COURT OF AUSTRALIA

BERRY & DURAND [2019] FamCA 277

FAMILY LAW – CHILDREN – Residence – where the child is ordered to live with the mother – where the child is ordered to have no time or communication with the father – where the child has resided with the mother all her life – where there have been attempts for the child to have a relationship with the father however this has not been positive – where the child currently spends no time with the father – where the father leads an erratic life characterised by periods of sobriety and periods of relapse into abuse of drugs and alcohol – where the father is currently in a rehabilitation centre – where the mother has been exposed to family violence – where the father admits to perpetrating family violence – where the father has had a drunken violent life and does not understand or accept that his drunken abuse and wild language is frightening and repellent – where the child disclosed to the mother and step-sister that she had been sexually assaulted by the father – where those allegations were investigated by the Department of Family and Community Services – where the allegations were unable to be substantiated – where there is a need to protect the child from physical and psychological harm from being exposed to the father’s uncontained behaviour when intoxicated and the possibility of sexual abuse occurring in that context – where the safety of the child has priority over the benefits of building a meaningful relationship with the father.

FAMILY LAW – CHILDREN – Parental responsibility – where the mother continues to have sole parental responsibility – where this is a continuation of the current orders in place – where the father was not seeking to change this – where the mother has the capacity to meet the needs of the child.

FAMILY LAW – PRACTICE AND PROCEDURE – hearing – where the matter was set down for a four day trial – where the matter proceeded as an undefended hearing – where the father did not participate in the trial – where the father filed no trial documents – where the father advised the Independent Children’s Lawyer that he was withdrawing from the case the day before the scheduled commencement of the hearing.

Family Law Act 1975 (Cth)

APPLICANT: Ms Berry

RESPONDENT: Mr Durand

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Gosford Family Law

FILE NUMBER: NCC 2987 of 2015

DATE DELIVERED: 3 May 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 29 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mueller

SOLICITOR FOR THE APPLICANT: Nash Allen Williams & Wotton Solicitors

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Ticehurst

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

Orders

1. That all prior parenting orders made in this Court and in the Federal Circuit Court in relation to the child, C born … 2014 (“the child”), are discharged.

2. The mother shall have sole parental responsibility for the child.

3. The child shall live with the mother.

4. The child shall not spend time nor communicate with the father.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2987 of 2015

Ms Berry

Applicant

And

Mr Durand

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for parenting orders in respect of one child, a girl named C aged almost five years at date of trial.

2. The parties are the parents of the child.

3. The parties commenced their relationship in 2010 and separated in 2014, they were together for approximately four years. The child was three months old when the parents separated. She has remained living with the mother since separation.

The Parties

The applicant mother

1. The mother is aged 45 years. She works in social services. Her household consists of herself, the subject child, and two young adult children of a prior relationship. They are Mr F aged 21 and Ms G aged 18 years.

2. The current address of the mother was not disclosed but she has lived in the Suburb H of the K area.

3. There is no evidence of the mother having a current partner.

The respondent father

1. The father is aged 41 years. The father did not participate in the trial.

2. In the last affidavit filed by him in June 2018,[1] and at the time of interviews for the Family Report, the father gave an address in Suburb L in the M Region of New South Wales.

   [1] Affidavit of the father filed 26/06/2018

3. On the Notice of Ceasing to Act filed in February 2019 by the former solicitors of the father there is an address given for him in N Town, Queensland.

4. In the email which became Exhibit One the father revealed that he was in the P Centre. That is a rehabilitation centre, in the M Region, which the father has stayed in previously.

5. There is no current evidence of the father’s employment, household and whether he has a partner.

The Trial

The mother

1. The mother was present at Court, legally represented and had briefed counsel

The father

1. The father did not attend Court. He had been legally represented throughout the proceedings.

2. On 21 February 2019 the father’s former solicitor filed a Notice of Ceasing to Act. The father has not filed a Notice of Address for Service, a trial affidavit or a case outline document.

3. On the last working day before the trial, at 5.13 pm, the father sent an email[2] to the office of the Independent Children’s Lawyer (“ICL”) advising that he, the father, would not be attending court and further that in his own view it was in the best interest of himself and the child for him to withdraw from the case.

   [2] Exhibit 1

The ICL

1. The ICL was present at Court and had briefed counsel.

2. The matter had been allocated four days of hearing time commencing 29 April 2019. The trial proceeded by way of submissions and was concluded on the first day.

3. Judgment was thereafter reserved.

Brief History of Relevant Events

1. In October 2010 the parties met and began living together soon after.

2. The parties have two distinct accounts of how their cohabitation occurred.

3. The mother stated that the father implied wanting to move in with her, as he was complaining about the house he was living in at the time.

4. The father stated that the mother ‘begged’ him to move in as she was struggling with rental payments. This is inconsistent with the father’s later statement to the Family Consultant that he had wanted to move out from the environment that he was in due to excessive alcohol use and due to the fact that he was not working. He was reliant upon the mother for financial assistance.

5. The mother alleges that an incident occurred early in their relationship when the mother was driving the father home. They had both been drinking and the father had used amphetamines. The mother alleges that the father was highly abusive towards her and was calling her a ‘cunt’ (the father agrees that he called the mother a ‘cunt’). The mother states she stopped the car and asked the father to get out. The father said he had a broken leg and had to walk a significant distance in the rain which resulted in damage to the cast and his leg, requiring further medical intervention. The mother states she contacted the father’s housemates to come and collect him. An ambulance ended up collecting the father from the service station where the mother had dropped him off and transported him to the hospital. The father did not wait for any treatment.

6. On two occasions in October 2010 (7^th and 26^th) the father presented to the emergency department with injuries as a result of intoxication.

7. In 2013 an incident occurred where the father became extremely aggressive towards Ms G, then aged about 12 years. He pushed a large oil heater in the hallway towards her, and shouted at her “you’re a little cunt”.

8. In 2014 the subject child C was born.

9. The parties separated in 2014, when the child was aged three months.

10. The parties agree that the final separation occurred when the father was intoxicated. The father states he was simply under the influence of alcohol while the mother alleges that he had used amphetamines.

11. The mother alleges that the father kept coming in and out of her bedroom threatening to beat G up, accusing her of stealing alcohol. The mother stated that she was begging the father not to go upstairs to G as “he’s off his face, carrying on, swearing at me.” The mother described him as “manic, abusive, and crying.” The father alleges the mother told him that she was sick of the way he was acting, drinking and taking drugs. The mother stated that on this night she could not fall asleep because she was unsure what the father would do to G. The mother states that the following day she sent the children elsewhere and called her sister who came over and told the father that the relationship was over.

12. Between 19 and 20 October 2014 the father sent in excess of 47 text messages to the mother. The police noted that the text messages were abusive and threatening, and the father was threatening to come and collect C. The mother received these text messages while on the telephone to the police. The mother alleges the father said to her “the only reason I need help is because of what you have done”. When the mother did not reply and the father is alleged to have said “I’ll come and cut your fucking head off”. The father was arrested and charged with stalk/intimidate/intention to cause physical harm.

13. An Apprehended Domestic Violence Order (“ADVO”) was put in place in protection of the mother.

14. The mother alleges that it was around this time that the father said to her, “I’ve had dreams and visions of stabbing you”. The father conceded to the Family Consultant that he had made those statements and did have nightmares about stabbing the mother. He said this was because the mother was limiting his time with the child and this was impacting on his dreams and nightmares.[3] The father told the Family Consultant that he did not tell the mother this to frighten or intimidate her, he just wanted her to understand the impact everything was having on him. The father told the Family Consultant that on that occasion in October 2014 he was “absolutely putridly drunk”.[4]

    [3] (Magellan) Family Report dated 2/10/2018, par 90

    [4] (Magellan) Family Report dated 2/10/2018, par 91

15. Given the admissions against interest I conclude that the father was being candid with the Family Consultant about his conduct after separation. That is to his credit.

16. However it is apparent that the father has under-estimated or not understood at all the impact of his behaviour on the mother. Significantly that was still the case in 2018 when the father was looking back on his actions. Whether he intended to frighten or intimidate the mother, or was just explaining himself to her, I accept that was the consequence of his words and actions.

17. In October 2014 the mother had a five month old baby and two young teenage children to protect. I accept she felt fearful and vulnerable.

18. On 20 October 2014 a Risk of Harm Report by the Department of Family and Community Services (“FACS”) was made on the basis that the subject child was being exposed to family violence. The report was characterised as not a Risk of Serious Harm (“Non-ROSH”).

19. On 29 January 2015 a final ADVO was put in place for the protection of the mother and child from the father. The father’s time with the child ceased.

20. On 9 March 2015 the father was referred to counselling by his general practitioner as part of his ADVO requirements.

21. In March 2015 following a Legal Aid Intervention Conference the father commenced spending supervised time with the child at Q Contact Centre. This supervised time continued until July 2015.

22. In July 2015 the parties attended another Legal Aid Intervention Conference and the father commenced spending unsupervised time with the child. This continued until 3 September 2015

23. On 4 September 2015 the father ceased spending time with the child. The father reported travelling first to a family member’s farm for a period of detoxification and, then around Queensland at this time. The father is alleged to have been heavily drinking and the mother reported receiving repeated messages from the father, the last message sent to the mother read “goodbye O goodbye C and good ridden (“[Ms Berry]”). Don’t contact me ever again cunt I will be looking for your death bitch.’[5] When police then spoke to the father he abused the police the whole time over the telephone, the father was then convicted of breaching the ADVO.

    [5] (Magellan) Family Report dated 2/10/2018, par 95

24. On 6 September 2015 the mother reported to the police that she received 21 text messages from the father, containing swearing and comments that were extremely derogatory towards the mother. The mother alleges that the father spoke of going to gaol, accused her of being an unfit mother and that it would all come out in court. The father is alleged to have said,

    Go on put me in jail cunt. All I ever wanted was to see my little girl. When we go to court everything will come out and no more being positive with you. You have fucked everything up for good. Put me in jail and you will have the worst karma a person can have. I’ve got a lot of ammo too. So do your best. We will both lose [C] and trust me nothing you do will make you happy ever again. I know that I’ve already been through it. You did all of this. And Karma will fuck you for all of this. Poor [C] having a mother without a heart.[6]

    [6] (Magellan) Family Report dated 2/10/2018, par 96

25. The father was charged with using a carriage service to menace/harass/offend and was charged with contravening the ADVO.

First Proceedings – Federal Circuit Court (“FCC”)

1. On 17 November 2015 the mother filed an Initiating Application in the FCC.

2. On 9 February 2016 orders were made in the FCC for the mother to have sole parental responsibility, the child to live with the mother and for the father to attend to a drug and alcohol assessment, undertake urinalysis, attend drug and alcohol counselling and complete a parenting after separation course. Following this the father was allowed to spend supervised time with the child.[7]

   [7] Federal Circuit Court of Australia Order dated 9/02/2016

3. On 25 November 2016 further interim orders were made by Judge Middleton in the FCC resulting in the father spending unsupervised time with the child.[8]

   [8] Federal Circuit Court of Australia Order dated 25/11/2016

Parenting Orders – Final; By Consent (“the 2017 Orders”)

1. Final parenting orders were made by consent on the 15 September 2017.

2. The orders allowed for the mother to have sole parental responsibly, for the child to live with the mother and spend unsupervised time with the father alternate weekends, transitioning from two days to three days. The 2017 Orders also allowed for the father to spend time with the child during school holidays and alternate weekends.[9]

   [9] Federal Circuit Court of Australia Order dated 15/09/2017

3. The mother has stated that if she had been aware of the information she currently does now have about the father’s past and present behaviour, she would not have consented to the orders; however at that point in time the mother stated she believed that the father had reformed.[10]

   [10] Affidavit of the mother filed 15/03/2019, par 12

Changes in behaviour of the child

1. The mother alleges that it was around October 2017 that she started to have concerns about C’s behaviour. The mother stated that after each visit with the father, C returned home tired, angry and violent (towards animals and those in the mother’s house) and exhibiting sexualised behaviour. In relation to the sexualised behaviour, the mother alleges that C began touching herself often around her genitals and anus and started placing objects inside her vagina, this included objects such as a pen and at one stage a small wooden block. The mother further alleged that after she had a bath C would spread her legs very wide and touch her anus and genitals. The mother stated that she considered the sexualised behaviours to have gone beyond normal developmental self-exploration when C began inserting objects into her vagina. The mother said she questioned why C was doing these things but at this stage did not believe it related to the father.[11]

   [11] (Magellan) Family Report dated 2/10/2018 pars 107-110

2. On 8 January 2018 the father’s time with the child ceased. The mother stated this was because of concerns she had around the father’s drug use, as his presentation and behaviour was symptomatic of drug abuse and poor mental health.

3. On 13 January 2018 the father is alleged to have attended the mother’s home and provided her with a 12 page handwritten letter. The mother stated the father was presenting as drug affected. The father stated he gave the letter to the mother because at this point he still loved her and wanted to reconcile. The mother states the father was not invited to her home and that she did not want him there.

4. On 15 January 2018 the father attended the mother’s house and parked across the road. The mother alleges that the father told her he could attend her home because there was not a current ADVO in place. The mother reported to Police that the father was verbally aggressive and harassing her, and was hitting himself in the side of the head with an open hand. The mother alleges that the father kept stating that he was relapsing and needed help. The father denies behaving in this manner. Police attended and asked the father to move on. The incident resulted in an interim ADVO listing the mother as the person in need of protection.

5. On 1 February 2018 the father recommenced therapeutic relationship with his counsellor, he reported suicidal ideation of wanting to drown himself in the lake. The father described his suicidal thoughts as “having an angel on one shoulder and a devil on the other.”[12]

   [12] (Magellan) Family Report dated 2/10/2018, par 170

6. On 10 February 2018 the mother’s former partner Mr J, and father of Mr F and Ms G travelled down to the mother’s home to visit his two children.

7. Mr J alleges that on 11 February 2018 he was at the beach hoping to go for a surf. He was drinking coffee in the car park when the father pulled up near him, walked over to him and started talking. Mr J alleged that the father appeared agitated. Mr J was worried that the father was stalking the mother as he would have seen his car at the mother’s home on the night before. Mr J alleges that the father kept talking about the mother and was telling him all about his life and childhood, and admitted that he had an ICE problem and suicidal thoughts. Mr J said that he told the father he had to leave and drove off.[13]

   [13] Affidavit of Mr J filed 18/03/2019, pars 1-12

Disclosures by subject child - 16 February 2018

1. On 16 February 2018 the mother alleges that she found C trying to insert a chopstick into her vagina. The mother said she gave the child a bubble bath and after the bath C spread her legs wide and put her fingers in her anus. The mother alleges she asked the child “Why are you touching yourself there C, does anyone touch you there?” C is alleged to have responded saying “Dad does”, “My daddy sticks his fingers up my bottom, not all the way though.” The mother is alleged to have then said “Are you sure your Dad does that to you?” and C responded saying “Yeah after Dad gives me a bath he sticks his fingers in my bum, it didn’t bleed though.”[14] The father denies ever sexually harming the child.

   [14] (Magellan) Family Report dated 2/10/2018, par 112

1. Ms G also reports that the subject child said to her on the same day while they were sitting in the sunroom together “Dad touches me. Daddy sticks his finger up my bottom...not all the way though”.[15]

   [15] Affidavit of Ms G filed 15/03/2019, par 13

2. On that day a report was made to FACS and the matter was referred to JIRT.

3. The mother alleges that the child continued to display sexualised behaviour for two to three weeks after the initial disclosure and continued to make disclosures about things the father had done to her.

Father in hospital 17-22 February 2018

1. From 17 February 2018 the father spent five days in R Hospital due to a drug induced psychosis.

2. The father reported to the hospital that he had been “bingeing on amphetamines for the past two months, and not having slept for approximately 11 days.” The father reported using amphetamines two to three days per week for the last three months. He also stated that prior to his admission he had used speed for six days straight, reported driving intoxicated and going swimming while high on speed alone. The report notes that he has a long history of amphetamine use, was an IV user when younger, and a heavy alcohol user (80 drinks per week) until four years ago. The father stated he had not been drinking as much and stated that he hopes he will “just die from the speed.” 

3. Following his admission the father was referred to the P Centre and R Hospital.[16] During the father’s hospital admission it was also noted that the father “had some ideation about killing his ex-partner and himself” and that “he had been driving round with a knife” to see if he could see his daughter and “last night went to her house.”[17]

   [16] (Magellan) Family Report dated 2/10/2018 pars 154 & 171

   [17] (Magellan) Family Report dated 2/10/2018 pars 102-103

JIRT Interviews

1. On 22 February 2018 the child was interviewed by JIRT but did not make any disclosures.

2. On 23 February 2018 the mother contacted JIRT and said that the child was ready to talk. Attempts were made to re-interview C. No disclosures were made, and the risk to C was assessed as low due to the fact that she was safe with the mother and was not having any contact with the father. The mother was advised that the police investigation would be suspended due to no disclosures being made and that there was no other available evidence. The mother was advised that the matter would not be substantiated.[18]

   [18] (Magellan) Family Report dated 2/10/2018 par 36

3. On 25 February 2018 the father presented at the emergency department with back pain associated with an accident. He stated that he was “drinking yesterday so pain improved but he has been sleeping in his car so this morning feels very stiff.” The father also reported using speed seven days ago.[19]

   [19] (Magellan) Family Report dated 2/10/2018 par 155

4. On 2 March 2018 FACS attended the mother's home for a home visit.

AVO for protection of mother - 12 months

1. On 5 March 2018 a final ADVO was in place in protection of the mother from the father for a period of 12 months.

2. On 21 March 2018 the mother alleges that C told her that the father hits her on the stomach and sometimes on the back and “when Dad touches my private parts it hurts”.[20]

   [20] (Magellan) Family Report dated 2/10/2018, par 117

Current Proceedings – Family Court of Australia

1. On 28 March 2018 the mother filed an Initiating Application in the Family Court of Australia.

2. The mother was seeking that the 2017 Orders be discharged, that the child live with her and she have sole parental responsibility and the father have no time or communication with the child.

3. On 28 March and 3 April 2018 further ROSH reports were received by FACS in relation to the allegations that C had been sexually abused by the father.

4. On 22 April 2018 G alleges that C got upset when music was being played too loud, and when she asked C why she was upset she said that “Dad plays the music up loud and comes into my rainbow bed and scared me and hurt me.”[21]

   [21] Affidavit of Ms G filed 29/04/2019, par 21

5. A further ROSH report was received by FACS on 24 April 2018.

6. The police records indicate that G stated that C told her that the father would record her in the shower. This referral was rejected by JIRT as not meeting the criteria for disclosure and because the reported information had been previously investigated.

7. A further ROSH report was received by FACS on 29 April 2018

8. On 30 April 2018, G was supervising C in the bath when she kept trying to put her dummy in her mouth and bottom.

9. On 2 May 2018 a number of procedural orders were made by Registrar Jackson, including allocating the proceedings into the Magellan Protocol.[22]

   [22] Family Court of Australia Order dated 2/05/2018

10. On 21 May 2018 the father was interviewed about the allegations, “Mr D stated that he has never sexually abused C and that he is concerned for her safety and wellbeing if she is genuinely exhibiting sexualised behaviours as reported. Mr D advised that he is not a danger to his daughter and denies that he has ever caused her harm or compromised her safety.”[23]

    [23] Magellan Report dated 1/06/2018 page 4 par 6

Magellan Report

1. On 1 June 2018 the Magellan Report was received. The report concluded:

   There have been no harm issues substantiated during the JIRT assessment and the outcome of the assessment has concluded that [C] is safe in her current circumstances. [C] does not currently have contact with [Mr Durand]. The level of future risk for [C] has been assessed as low.[24]

   [24] Magellan Report dated 1/06/2018, page 5

2. The report does not conclude that sexual abuse has taken place. The report does not exclude the possibility of sexual abuse of C has taken place. It reveals the process undertaken and reports that allegations raised on behalf of the child were not disclosed by the child herself during interviews.

3. The report does conclude that C is safe in the care of the mother. Future risk of harm is assessed as low, based I infer on the capacity of the mother to care for the child and the fact that the child was not having contact with her father.

4. On 5 August 2018, C said to her sister G ‘My dad kissed me in my private parts”.

Interim parenting orders - 13 August 2018

1. On 13 August 2018 interim orders were made in this Court that, pending further order, the father shall not communicate or spend time with C, and that the Court will consider on the next occasion the possibility of the father spending supervised time with the child.[25]

   [25] Family Court of Australia Order dated 2/05/2018

(Magellan) Family Report - 2/10/2018

1. On 25 September 2018 both parties, the subject child and the mother’s older children attended upon the Family Consultant for the purposes of a Family Report.

2. The evaluation section of the report highlighted serious concerns about the future safety and welfare of the child.[26]

   [26] (Magellan) Family Report dated 2/10/2018, pars 191–212

3. The opinion of the Family Consultant that the father represents an ongoing risk of harm to the child is captured by paragraph 210 of the Magellan Family Report:[27]

   The impact of the father’s proposal on [C] is that she would be placed at ongoing serious risk in the father’s care due to his polysubstance abuse, poor mental health and propensity to behave in a violent manner. She may also be at risk of harm in his care. The father’s proposal would also have deleterious impacts in the mother’s household with the increased anxiety and hypervigilance of the mother, [F] and [G] and associated impacts on [C].

   [27] (Magellan) Family Report dated 2/10/2018, par 210

4. The Court took into account the recommendation of the Family Consultant that consideration be given to how the Family Report was released to the parties.[28]

   [28] (Magellan) Family Report dated 2/10/2018, par 215

5. On 10 October 2018 the Family Report was released to the lawyers for the parties only. On 12 November 2018 the Family Report was released to the applicant mother and her solicitor.

6. On 17 December 2018 the Family Report was released to the lawyer for the father, with the father to read the report in his lawyer’s office.

7. On that date, trial directions were made setting the matter down for a final hearing for a period of four days.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The applicant mother

   (a)Initiating Application filed 28/03/2018;

   (b)Affidavit of Mother filed 15/03/2019;

   (c)Affidavit of Ms G (mother’s daughter), filed in Court on 29/04/2019. Replacing affidavit sworn 15/03/2019 before she turned 18 years;

   (d)Affidavit of Mr J (mother’s former partner, father of Ms G and Mr F) filed 18/03/2019;

   The respondent father

   (e)Response filed 26/06/2018;

   Reports

   (f)(Magellan) Family Report dated 2/10/2018;

   (g)Magellan Report dated 1/06/2018.

The Law

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B (2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.

Parental Responsibility

1. The mother proposes residence and sole parental responsibility for herself.

2. That is a continuation of the legal position put in place by the parties by consent by the 2017 Orders.

3. The father did not seek to change those aspects in his orders sought in his Response filed in June 2018.

4. It is an acknowledgement by the father that the mother has the capacity to meet the needs of the child and to make decisions for her future.

5. In those circumstances orders are made accordingly.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

1. The child has lived with her mother all her life and has her most important relationship with her. The Family Consultant stated that there are “no concerns identified in relation to the mother’s current ability to provide appropriate protective and child focused parenting to C.”[29]

   [29] (Magellan) Family Report dated 2/10/2018, par 192

2. Attempts have been made by the mother for the child to have a relationship with the father. The outcome has not been positive for the child. Time for the child with the father has ceased pending this trial.

The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

1. The father has chosen not to participate in this trial. As a result there is no relevant evidence about the current mental health of the father nor about his use or abstinence from illegal drugs and alcohol.

2. The evidence of the mother about the abusive harassing and frightening conduct of the father towards her is unchallenged.

3. The JIRT team did not substantiate reports by the mother of disclosures of sexual abuse of the child by her father, made to the mother and to the mother’s older daughter.

4. The father in the past has denied any sexual misconduct towards the child. The Court has not had the opportunity to hear from the father nor had the benefit of his evidence being tested in cross examination.

5. Counsel for the ICL submitted that in those circumstances findings of sexual abuse should not be made. I agree.

6. There is a need to protect this child from physical and psychological harm, from being exposed to her father’s uncontained behaviour when he is intoxicated and the possibility of abuse of the type which the mother and the child’s sister say were disclosed to each of them by the child taking place in future.

Additional Considerations

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. The child is not quite five years old. She has always lived with her mother and older siblings. She is not sufficiently mature or confident to express a view about time with her father.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. The child has close strong ties to her mother, older brother and sister.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. The father leads an erratic life characterised by periods of sobriety and periods of relapse into abuse of drugs and alcohol.

2. It is likely that his own abusive, neglectful experience of family life has impaired his capacity as a parent. His mother committed suicide when he was a young teenager. He was sexually abused from age 12. At 21 he attempted suicide by taking drugs.[30]

   [30] Exhibit 2

3. I consider that the father knows that he may not be a safe parent although he loves his daughter and would like to be part of her life. I infer as much from two actions by him. First, his proposal that if the 2017 Orders were varied he would have supervised time in a contact centre. Next, his statement to Legal Aid that it was in the best interest of the child for him to withdraw from the case.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. The behaviour of the child has settled. She has ceased hitting and biting family members. She has stopped throwing and being cruel to the family’s pet cats.

2. A return to spending time with her father in the absence of any positive evidence from him has the potential to disturb and unsettle the child and put her at risk of harm.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. The Family Consultant identifies a most serious issue as follows:

   The mother’s ability to understand and effectively meet the needs of the child is assessed as strong, however potentially impaired if the mother’s emotional state is compromised by virtue of the child spending time with the father.[31]

   [31] (Magellan) Family Report dated 2/10/2018, par 206

2. The mother tried to ensure that the child spent time with the father safely. I accept that she consented to final orders in 2017 believing that the father was in a good enough state of mental and physical health to care for the child when she was with him.

3. Subsequently the child began making statements to her and the child’s sister about the father having penetrated her body with his finger, having “come into her rainbow bed and frightening her and hurting her.” The mother observed unusual sexualised conduct in the child, inserting objects into her vagina and rectum. The child had become aggressive with family members and pets.

4. The mother acted swiftly to notify authorities and JIRT interviews took place. On two separate occasions the child did not make any statements to the interviewers from JIRT suggestive of abuse.

5. I note that the child did report to JIRT that she had “told Mummy rude stuff” in the context of her father drying her after a bath. When asked what the rude stuff was the child replied “that’s what I’m angry about”. When pressed on the topic of rude stuff and being angry the child diverted to “Look at my new shoes.”[32]

   [32] (Magellan) Family Report dated 2/10/2018, par 113

6. The mother clearly became anxious about how to protect the child from harm.

7. I accept the opinion of the Family Consultant that if the mother becomes emotionally distraught about safety of the child (in contact with the father) her ability to meet the needs of the child will be impaired.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. The subject child is not quite five years old. She will start school in 2020.

2. She was assessed by the Family Consultant to be “chatty and engaging with excellent language development.” However she was not responsive to the Family Consultant when spoken to directly. Instead, she “cuddled into a family member.”

3. The child developed a “sore stomach”, inferentially as a result of fearfulness, and was unable to be interviewed alone.

4. I take this reaction into account in assessing whether the failure of the child to make disclosures to JIRT was because there were no disclosures to make or that she was fearful to speak to a stranger about things which had in fact happened. That a highly experienced Family Consultant was unable to engage the child is consistent with the second proposition, although not conclusive.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

1. The mother has undoubtedly been exposed to family violence. The father has conceded that he has used vile insulting words when speaking to and texting the mother and the mother’s older daughter.

2. The father also conceded making threats.

3. The father has had a violent, traumatic life. He appears to not understand or accept that his drunken abuse and wild language is frightening and repellent.

4. The most recent AVO expired in March 2019.

5. The mother did not reveal her current residential address for safety reasons.

6. The mother seeks a positive injunction that the child not spend time or communicate with her father. I clarified with counsel for the mother that the mother did not wish to have the discretion of agreeing to time and communication for the child with the father in future years if she considered it was in her best interest to do so.

7. I conclude that the mother believes she made an error in consenting to the 2017 orders and was subsequently shocked by all there was to learn from reading the material produced in response to subpoenae. To use her words the mother thought the father has “reformed”. She does not wish to run the risk of being so persuaded again.

Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

1. In his email to the ICL, the father stated that “one day I will bring all my evidence back to Court and maybe get some of my rights back.”[33]

   [33] Exhibit 1

2. If the father undertakes rehabilitation work that assists him to stay sober in respect of drugs and alcohol he may be able to benefit from therapeutic work to address the horrors of his own life growing up.

3. Evidence of having developed insight into himself and the frightening impact he has had on people he loves, especially his daughter, would be the sort of evidence which could persuade a Court in future years that he could be re-introduced to his daughter safely.

1. Future proceedings in those positive circumstances would be a positive development.

Any other fact or circumstance that the court thinks is relevant

1. In 1990 the mother states that the father has his first suicide attempt.

2. In 1995 the father was charged with maliciously inflicting grievous bodily harm.

3. In August 1999 the father presented to the emergency department, overdosing on prescription medication. He presented as “abusive, agitated and needed sedation overnight.”  The mother alleges that the father attempted suicide by taking poisons.

4. Between 2000 – 2005 the father had the following known encounters with law enforcement:

   a)2000 – The father was charged with assault occasioning actual bodily harm;

   b)05/2000 - The father was reported as failing to pay for petrol whilst under the influence of drugs;

   c)04/2000 – The father was charged with fail/refuse to undergo breath analysis;

   d)11/2000 – The father was charged with false representation resulting in a police investigation

   e)11/2004 – The father was charged with assault occasioning actual bodily harm;

   f)12/2004 – The father was charged with behave in an offensive manner in/near public place/school;

   g)01/2005 – On this date the police attended the father’s house and the father opened the door holding a 32 cm kitchen knife. The father dropped the knife at the request of the police but became aggressive. Police determined the father was under the influence of drugs and/or had a psychiatric illness. The father is alleged to have made continual references to “finishing this” and “unleashing himself like you’ve never seen before.” The father was arrested under s 24 of the Mental Health Act. After a mental health assessment occurred the father was deemed to be not mentally unwell but just under the influence of drugs. When he was conveyed to the police station he threatened death to all the police, he continuously and systematically punched, slapped, kicked and head-butted the dock area and he said on many occasions he would cut the throat of police if allowed. Furthermore, the father threatened to burn down the police station and every one inside and urinated against the wall of the dock. The father was charged with use of offensive weapon to prevent police investigation, destroy or damage property and assault police officer in the execution of their duty. In relation to this charge and the charge in 11/2004 the father was given an original sentence of 18 months concurrent imprisonment with a non-parole period of six months. On appeal the father was given an s 9 bond for two years, to attend counselling as required with regard to anger management, and attend a non-residential drug and alcohol rehabilitation;

   h)04/2005 – On this date the Police noted that the father was involved in a brawl, he was yelling at the top of his voice “fuck the cunt, he’s a fuckwit. He started it.” The Police asked the father to lower his voice and cease use of his offensive language however the father became aggressive and ignored the requests of police. The father was then arrested and charged with behave in an offensive manner in/near public place/school.

Conclusion

1. This is a matter where the safety of the subject child has priority over the benefits of building a meaningful relationship with the father.

2. By his Response the father proposed that the 2017 Orders be maintained but if the Court took the view that change was required that he spend supervised time with the child in a contact centre.

3. Given the evidence it is unlikely that the time would be consistent so that the child could develop confidence in the father. Even if it was, there is no immediate prospect of time progressing into something more substantial and enjoyable for the child.

4. There is emotional risk for the child in terms of her self-esteem and confidence growing up without the love and support of her father. The risk of emotional physical, verbal and sexual harm outweighs that risk.

5. The child is safe and well cared for by the mother with the assistance and affection of the child’s older siblings. The matter has been finalised on that basis.

6. Orders are made accordingly.

I certify that the preceding one hundred and forty-nine (149) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 3 May 2019.

Date:  3 May 2019